Michael Rikon ()
The Court of Appeals rendered a decision on June 6, 2017 which enjoined the proposed development of parkland in Willets Point, Queens as a shopping mall and movie theater on Citi Field’s parking lot. Matter of Avella v. City of New York, 2017 N.Y. LEXIS 1403.
The city has a long ignominious history of attempts to develop the area.1 After the last attempt, the city requested development proposals. Queens Development Group proposed a multi-phase development. The first phase called for a retail mall to be built entirely on parkland.
The Public Trust Doctrine
The Court of Appeals began its analysis of the legal issue by reviewing the well-established law. It noted that the public trust doctrine is ancient and firmly established in our precedent. When a municipality takes land for the public use as a park, it holds it in trust for that purpose. What this means is that a municipality cannot convey parkland without the sanction of the legislature.
The court reviewed the longstanding history of the public trust doctrine set forth in its Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 630 (2001): “Our courts have time and again reaffirmed the principle that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes.”
In Friends of Van Cortlandt Park, the court held that a water treatment plant was a non-park use. The court held that in a 1920 opinion in Williams v. Gallatin, 229 N.Y. 248 (1936), 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.
The legislative sanction prohibits the diversion of property acquired or held for a public use to a possession or use which is exclusively private without specific legislative authority. In Lake George S.B. Co. v. Blais, 30 N.Y.2d 48 (1972), the Village of Lake George entered into a five-year lease demising a dock and related facilities to a private operator. The Court of Appeals held that only the legislature had the authority to permit the lease for private purposes.
In its next examination of the use of parkland, the Court of Appeals upheld the construction of a café and restaurant in the southeast corner of Central Park. Here the court held that the project was not illegal. The proof demonstrated that the park commissioner had adequate power to accept or reject the restaurant proposal. The court held that the broad powers held by the park commissioner included the power to improve the park. 755 Fifth Ave. v. City of New York, 15 N.Y.2d 221 (1965).
More recently, the Court of Appeals revisited the restaurant in a park in Union Sq. Park Community Coalition v. New York City Dept. of Parks & Recreation, 22 N.Y.3d 648 (2014).
In Union Square, the court held that an agreement allowing the operation in Union Square did not violate the public trust doctrine. The opposition sought to draw a distinction to this restaurant arguing that it provided for a lease which is absolutely prohibited. The court, in reviewing the restaurant agreement, stated that the true nature of the transaction must be gleaned from the rights and obligations set forth therein. Here, there was a license to operate a seasonal restaurant in the Union Square Pavilion which did not require legislative approval.
The Court of Appeals recently confirmed the viability of the public trust doctrine in Capruso v. Village of Kings Point, 23 N.Y.3d 631 (2014). In Capruso, the village proposed to construct a Department of Public Works facility on the land that was dedicated parkland. It appears that the village had been occupying part of the land in question for non-park purposes, particularly storage of highway materials and supplies for some time. The village claimed that the action was barred by the statute of limitations.
The Court of Appeals held that the action was not barred, and the doctrine of continuous wrong applied to the ongoing use of parkland alleged to violate the public trust doctrine. Since the defendants in Capruso conceded the land in question was dedicated parkland, wasn’t there another theory to oust them from possession and enjoin improper intrusion on the parkland? Why did it matter how long the defendants occupied for improper purposes? Parklands are held by the government in trust for the public; as such, lands held by a municipality in its governmental capacity may not be lost by adverse possession. City of New York v. Sarnelli Bros., 280 AD2d 573 (2d Dept. 2001)
The continuous wrong doctrine, an equitable doctrine, is usually applied to preserve a cause of action where the wrong was not easily discoverable within the statute of limitations period applicable. An example is Bloomingdale’s v. New York City Tr. Auth., 52 A.D.3d 120, aff’d. 13 N.Y.3d 61 (2009), a case involving an underground trespass which was not discovered until the statute of limitations expired.
The legislative approval in alienating parkland must be plainly conferred through the direct and specific approval of the state legislature. So with this well-established bedrock law, why would this case reach the Court of Appeals?
The developer and city contended that the 1961 legislation which authorized the construction of Shea Stadium on parkland constituted authority 55 years later for a shopping mall. But the Court of Appeals stated that the plain language of the statute in question granted the city the right to enter into contracts, leases or rental agreements for a stadium with appurtenant grounds, parking areas and other facilities. The court stated that nothing in the language authorizes the construction of a shopping mall or movie theater; rather, it authorizes the city to enter into agreements permitting others to use the stadium and its appurtenant facilities. The court also noted that the legislature did not authorize the city to enter into agreements for use of the stadium for commercial purposes. Reviewing case law, the court continued, park purpose has long permitted “playing grounds” which contribute to the use and enjoyment of the park.
So where does this leave the city and developer? Clearly, Albany must approve the use of the parkland as a retail mall. It must be remembered that in any legislative approval, mitigation will be required. Here we are dealing with a large parcel of land, perhaps 47 acres.
There actually is some published guidance available. The state of New York has published a “Handbook on the Alienation and Conversion of Municipal Parkland in New York,” published by New York State Office of Parks (2012). That handbook provides that “to prevent a net loss of parkland to the public, it is preferable that parkland alienation legislation include a provision requiring the acquisition and dedication of substitute parkland for lands being alienated.” It was provided that the substitution requirement cannot be waived by state parks for any alienation of parkland for which the municipality received state funds or federal funds. It is to be recalled that the parkland in question was originally acquired by Robert Moses for the 1964 World’s Fair.
Where would the mitigation land come from if the legislature approves the mall? Nothing requires that the parkland be replaced but that is the preferable mitigation, normally at the same geographical location. Clearly, if legislative approval is to be gained, major offers of substitute replacement parkland must be offered. Even this does not ensure approval for a 200-shop mega retail mall which is far different than the stated city plan for a new neighborhood including affordable housing, schools and community services. Based on preliminary environmental reports, the area simply could not cope with a massive increase of traffic. One thing is certain: If the developers wish to move forward, they must be prepared for some extensive and expensive horse trading.
1. The author’s firm previously brought a petition pursuant to EDPL §207 with co-counsel Arnold & Porter which successfully challenged a Determination and Finding to condemn the land. The city withdrew the authorization to condemn.