Lynn K. Neuner and William T. Russell Jr.
Lynn K. Neuner and William T. Russell Jr. ()

On June 1, 2017, the Commission on Judicial Nominations issued a list of seven candidates to fill the vacancy created by the passing of Judge Sheila Abdus-Salaam. This was two months ahead of the schedule provided for by the Judiciary Law. Gov. Andrew Cuomo had asked for the list early so that a candidate could be confirmed prior to the legislature breaking for the summer, which is currently slated to occur on June 21. From that list, Governor Cuomo has nominated current Appellate Division, First Department Associate Justice Paul Feinman. The governor’s press release notes that Justice Feinman has served as a judge in New York for more than 20 years and would be the first openly gay person to serve on the Court of Appeals.

In this month’s column, we address an appeal arising out of the proposed development at the former Shea Stadium site. In Matter of Avella v. City of New York, the majority of the Court of Appeals ruled that the development known as “Willets West” cannot proceed because the legislature has not clearly and expressly provided that the parkland underlying the development site can be freed from serving as a park space, as is required under the public trust doctrine. The majority opinion was authored by Judge Rowan Wilson and joined by Judges Jenny Rivera, Leslie Stein, Eugene Fahey and Michael Garcia. The lone dissent was authored by Chief Judge Janet DiFiore, who reached the opposite conclusion with equal vigor, finding it unambiguous that the legislature had already freed the 77 acres from serving as a park back in 1961 when the construction of Shea Stadium was approved.


The facts are relatively straightforward. In 1961, the legislature passed Administrative Code §18-118, authorizing the City of New York to rent or lease 77 acres of Flushing Meadows Park to others for use as a stadium “with appurtenant grounds, parking areas, and other facilities.” The original goal of this legislation was to establish a second Major League Baseball team in the city. The statutory language further authorized the city to enter into contracts giving others the right to use the stadium and grounds, parking areas and other facilities for any purpose that benefits the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce, including for sporting events, musical performances, business conventions, and meetings. Shea Stadium was developed and operated on the site as the Mets’ home for almost 50 years. In 2008, Shea Stadium was demolished. Citi Field, the new stadium, was built next to the original site, which has been paved over and now serves as a parking lot for Citi Field.

In 2011, the city solicited proposals to develop the blighted area consisting of 61 acres to the east of the Shea Stadium site known as Willets Point. A joint venture, which included the owner of the Mets, submitted a proposal to develop the Shea Stadium area site as Willets West, with a shopping mall containing 200 stores, a movie theater, public programming space, and a rooftop garden. The developer, Queens Development Group (QDG), would then further develop the Willets Point site with housing, a school, a hotel, retail space and a park. In 2012, the city approved QDG’s proposal.

Petitioners filed a challenge to the development as a hybrid Article 78 proceeding and declaratory judgment action. The petitioners include a state senator from the area, not-for-profit organizations, businesses, taxpayers and users of Flushing Meadows Park. The Supreme Court dismissed the proceeding, finding that using the property for a shopping mall would serve the statutory purpose of improving trade or commerce. In 2015, the Appellate Division, First Department reversed, declaring that the construction of Willets West on the city parkland lacked the legislature’s necessary authorization and therefore violated the public trust doctrine. The Court of Appeals granted leave to appeal. While the city did not seek leave to appeal, it filed a brief supporting the development, as did the New York Attorney General.


The majority ruled that the plain language of the statute controlled, and that it only provided for the city to rent the stadium and its accompanying facilities. It did not authorize the construction of a new shopping mall and movie theater for commercial purposes. The majority found that the word “appurtenant” could not be read to mean any adjacent buildings, but rather had to mean “stadium related” facilities. To allow the construction of any commercial building on the basis that it “improve[d] trade or commerce” would lead to an “absurd result,” said the majority, permitting the conversion of the parkland into a second Times Square or Wall Street. Such authority would render the language describing the authorized uses mere surplusage, a violation of statutory construction. The majority also found that, while it was unnecessary to consult legislative history because the statute itself was clear, the documents surrounding the enactment of §18-118, such as the title of the bill, the budget report, and the supporting memoranda from the mayor’s office, all indicate that the legislature only authorized the city to rent Shea Stadium and its grounds to private parties, and did not grant permission to build a shopping mall or movie theater.


In dissent, Chief Judge DiFiore reasoned that once the legislature authorized the commercial use of the space in 1961, there does not need to be new authorizations for every subsequent development provided the successive proposals fit within the original permitted use of the site. She disputed that Willets West would be constructed on “parkland,” noting that it is instead proposed for already “alienated parkland.” It is thus not an abuse of the public trust to allow the development to go forward—the state has already designated the area for non-park uses, and the legislature’s specifically listed purposes of improving trade and commerce, providing recreation and meeting places, and enhancing culture and education are met by the Willets West shopping, theater, public spaces and rooftop farm. The dissent takes issue with the majority’s historic focus on the original stadium intention, stating that the legislature used flexible language in §18-118 to describe the contemplated land uses and further provided that the city could enter into new contracts after the initial ones for the stadium expired.


An interesting aspect of this case is the certainty the majority and dissent each express in explaining why its view is the only possibly right one. Since they reach opposite conclusions, the positions cannot be reconciled. The variance turns in part on the “zoom” lens each used. From the dissent’s perspective, the “zoom” is higher, focusing on the state’s 1961 decision to “alienate” the parkland, which remains alienated, thus permitting the city to proceed since the Willets West proposal fits within several of the originally prescribed uses for the land. From the majority’s perspective, the “zoom” is one level lower, focusing on the state’s original intention to alienate the parkland for use as a stadium, thereby requiring a new legislative authorization for redevelopment as a shopping mall and theater. Both decisions are thoughtful, delve into the statutory language, and marshal a well-constructed set of reasons. The resulting dissension is likely vexing for the developers and city, who must be questioning how they could be so wrong if the Chief Judge of the State of New York believes strongly that their interpretation is indisputably right. And the “win” must be somewhat uncomfortable for the petitioners, as the majority writes that the remediation of the nearby Willets Point is a “laudable goal” but that their hands were tied, essentially calling on the legislature to pass an authorizing statute. We will see whether the legislature is willing to take up such a bill in the current political environment.