Michael Rikon ()
On Feb. 20, 2014, the Court of Appeals decided Union Square Park Community Coalition v. New York City Dept. of Parks & Recreation.1 The issue before the court was whether it is permissible to allow the operation of a restaurant in Union Square Park in Manhattan. It was the coalition’s argument that the operation of a restaurant in a park would violate the public trust doctrine.
The Court of Appeals held it did not.
The case came to the Court of Appeals after leave to appeal was granted from an Appellate Division, First Department Decision and Order2 which reversed a preliminary injunction restraining the alteration to the pavilion to accommodate the restaurant.3 The restaurant is to be located in the Pavilion in the Park and would be operated through a 15-year demising agreement.
The Court of Appeals found itself guided by a 1965 precedent, 795 Fifth Ave. Corp. v City of New York,4 which involved a challenge to the placement of a restaurant in Central Park, New York City. The Union Square court noted in reviewing its precedent that “although it is for the courts to determine what is and is not a park purpose, we recognize that the Commissioner enjoys broad discretion to choose among alternative valid park purposes. Observing that restaurants have long been operated in public parks, we rejected Plaintiff’s public trust claim, holding that they could show only a “difference of opinion” as to the best way to use the park space and that this “mere difference of opinion [was] not a demonstration of illegality.”
But the Court of Appeals, otherwise, did not disturb the public trust doctrine.
The public trust doctrine has long been part of the fabric of American law. In the leading case in New York, Friends of Van Cortlandt Park v City of New York,5 the Court of Appeals ruled that the city could not build a water treatment plant in the park without state legislative approval. In Friends of Van Cortlandt Park, the court held that a water treatment plant was a non-park use. The court held that a 1920 opinion in Williams v. Gallatin6 was controlling precedent. In Williams, a taxpayer sought to enjoin the Commissioner of Parks from leasing the Arsenal building in Central Park. In prohibiting the lease, the Williams court explained that a park is a recreational pleasure area set aside to promote public health and welfare, and as such:
no objects, however worthy…which have no connection with park purposes, should be permitted to encroach upon [parkland] without legislative authority plainly conferred.7
Outside of approving the operation of a restaurant in a park as long as the agreement executed by the commissioner is a license, the use of parkland for non-park land purposes would still be barred as a violation of the public trust doctrine.
The Public Trust Doctrine
As noted above, the protection of parkland falls under the broader panoply of the public trust doctrine. The principle of the doctrine is that certain resources are preserved for public use, and that the government is required to maintain them for the public’s reasonable use.
The public trust doctrine was well established in English law and subsequently became part of the common law of the United States. Illinois Central Railroad v. Illinois8 is often considered the landmark case which defined the scope of the doctrine. It appears that the Illinois Legislature granted most of the Chicago harbor to the railroad. The Supreme Court held that while the state held title to the land underneath the navigable waters of Lake Michigan, it held this title in trust for the public’s use and could not convey the land if the effect would be to destroy the public’s right of navigation and fishing.
The doctrine has often been applied in New York. In Marba Sea Bay v. Clinton Street Realty,9 the Court of Appeals invalidated the grant of 11 miles of foreshore, the entire oceanfront of Queens, to a private person, holding that “the title which the State holds and the power of disposition is an incident and part of its sovereignty that cannot be surrendered, alienated or delegated, except for some public purpose, or some reasonable use which can fairly be said to be for the public benefit.”10
Prior Public Use
Related to the protection of parkland is the doctrine of prior public use which holds that if property is acquired by eminent domain for a public purpose it may not be transferred for another use. Nor, may it, in general, be condemned by another condemnor.
As the Court of Appeals stated in New York Cent. & Hudson Riv. R.R. v. City of Buffalo,11 “Lands already taken by condemnation or acquired by purchase for public use should not be taken for another public use unless the reasons therefore are special, unusual and peculiar. For this reason, it has been frequently held that where lands have once been taken or acquired for public use, they cannot be taken for another public use, at least if such other public use would interfere with or destroy the public use first acquired, unless the intention of the legislature that such lands should be so taken is shown by express terms or necessary implication.”
An example is County of Suffolk v. Pinelawn Cemetery12 where the county attempted to acquire a strip of the cemetery’s land for a street widening. The court held that lands dedicated to the purpose of a cemetery shall not be subject to construction of a street. It was stated that the Legislature “practically promised…that these cemetery grounds should be put to no other use except by special permission of the legislature.”
But, like any general rule, there are exceptions. Westchester Creek Corp. v. N.Y. City Sch. Constr. Authority13 is one of them. In Westchester Creek, a developer argued that its property should not be acquired because it held a long-term lease from the city to develop the land. The property had previously been acquired in an urban renewal proceeding.
The First Department held that a public school use was a special, unusual and peculiar use which allowed the taking. The result might have been different if the property were developed. It was vacant land which the developer wanted to develop in the future. This provides a fitting metaphor: those that “live by the sword, die by the sword.”
The leading authority on eminent domain law tells us that the underlying rationale of the doctrine is to prevent condemnation back and forth between competing condemnors.14
Acquisition of Property
Generally, a higher sovereign has the ability to acquire property owned by a municipal corporation, school district or district corporation without the payment of just compensation. But when the property is taken for a purpose substantially different from that for which it is held by the local government, just compensation shall be made in the same manner as though it were private property.15
An example was the state appropriation of a bridge on West Tremont Avenue in the Bronx, owned by the City of New York which was then devoted to substantially different uses for luxury housing. An award for damages was affirmed by the Third Department.16 Another example would be the acquisition of streets for development into part of a university campus,17 or, land used for recreational purposes with an athletic field taken by the state to build an expressway.18
Michael Rikon is a partner of Goldstein, Rikon, Rikon & Houghton.
1. 2014 N.Y. LEXIS 205.
2. 21 NY3d 1070 (2013).
3. 107 AD3d 525 (1st Dept. 2013).
4. 15 NY2d 221 (1965).
5. 95 NY2d 623 (2001).
6. 229 NY 248 (1920).
7. Id., at 253-254.
8. 146 U.S. 387 (1892).
9. 272 NY 292 (1936).
10. id., at 296.
11. 200 NY 113, at 117-118 (1910).
12. 130 AD2d 575 (2d Dept. 1987).
13. 286 AD2d 154 (1st Dept. 2001), afd. 98 NY2d 298 (2002).
14. 1A-2 Nichols on Eminent Domain, Sec. 2.17.
15. Gen. Mun. Sec. 3.
16. City of New York v. State of New York, 49 AD2d 659 (3d Dept. 1975). The author tried the claim in the Court of Claims before Judge Sidney Squire (Claim No. 52284, Filed Sept. 17, 1974).
17. Albany v. State of New York, 28 NY2d 352 (1971).
18. City of New York v. State of New York, 87 Misc2d 489 (Ct. Cls. 1976).