“The nation behaves well if it treats its natural resources as assets which it must turn over to the next generation increased, and not impaired, in value.” Theodore Roosevelt.
New York has long treated park property with a special reverence, and any attempt by a local government to use designated park property for any other purpose is fraught with peril. This principle was recently illustrated by the Court of Appeals June 6, 2017 decision in Matter of Avella v. City of New York et al.1 This case involved the re-development of the former Shea Stadium property which, believe it or not, is legally considered parkland, and is subject to the Public Trust Doctrine.
The Public Trust Doctrine
In 2001, the New York Court of Appeals took note that the ancient Public Trust Doctrine remains a vibrant legal principle in New York. The history of this doctrine is examined in Friends of Van Cortlandt Park v. City of New York,2 where the Court reaffirmed that public property which has been designated as parkland is held in public trust, such that the property may not be used for any other purpose without authorization from the New York State Legislature.
Van Cortlandt Park examined precedents from the Court of Appeals, beginning with Williams v. Gallatin,3 in which the Court considered New York City’s proposed ten year lease of a building in Central Park to the Safety Institute of America. The proposed lease provided that the building would be improved by the tenant and used for safety education. At certain specified times, the building would be open to the public. In enjoining the lease, the Court concluded that Central Park is dedicated to public use for park and recreational purposes, for the promotion of public health, safety and welfare, and uses which are inconsistent with park purposes, no matter how worthy, are an impermissible deviation from the authorized purposes.
The Court of Appeals again had occasion to examine this principle in 755 Fifth Ave. v City of New York,4 where the Court allowed a café and restaurant in Central Park. Based on the particular facts of that case, the Court concluded that the proposed restaurant was within the ambit of uses which the Park Commissioner was authorized to introduce to the park, and were consistent with and promoted the recreational use of the park property. However, this decision turned to a large extent on the particular language of the State legislation authorizing use of Central Park, so that it is not necessarily persuasive with respect to similar uses of other park property.
In 1972, the Court again spoke with respect to permissible uses of park and recreation property, and rejected a proposed five year lease of property to permit private operation of a dock and related facilities at Lake George. In Lake George S. B. Co. v. Blasio,5 the Court ruled that this constituted an unlawful diversion of public park property for a private use, which could be accomplished only with the consent of the State Legislature (which, in this case, was lacking).
The Court then had two occasions in 2014 to opine further upon these principles.
In Union Sq. Park Community Coalition v. New York City Dept. of Parks & Recreation,6 the Court permitted a restaurant in Union Square Park pursuant to a license agreement. (Assuming that a lease would be prohibited by court precedents, the City here proposed a revocable license agreement. Claiming that this was a distinction without a difference, the opponents argued that it was tantamount to a lease, and was an unlawful interference with park property). The Court reviewed its previous decision in 755 Fifth Ave.,7 and concluded that each case involving a use of public park property required an examination of several factors, including the conditions upon which the property was dedicated to park use, the terms and conditions for operation of the proposed use, and the degree to which the public would be excluded from use, in order to identify the true nature of the underlying transaction. Concluding that this transaction involved a license, which was authorized by statute, no other legislative approval was required.
However, in Capruso v. Village of Kings Point,8 the Court reached the opposition conclusion with respect to a village’s proposed use of parkland for a public works facility. The Village had in fact been using the park property for non-park purposes for a number of years, but its new effort to construct the public works facility on the property aroused opposition by neighboring owners of private property. The State of New York also joined in the litigation. After resolving several procedural issues, the Nassau County Supreme Court enjoined the proposed use, and the Appellate Division, Second Department affirmed.9 Noting that the status of the property as parkland was undisputed, and concluding that the proposed use was a use of a substantially different scale, the Court of Appeals affirmed.
Matter of Avella
With the foregoing history of the Public Trust Doctrine in mind, Avella brought to the Court of Appeals a mixture of issues predicated upon the established principles of that doctrine and the specific legislation for the re-development of Shea Stadium. It may not be commonly known, but Shea Stadium and its related facilities were located in Flushing Meadow Park, an area clearly subject to the Public Trust Doctrine. In an effort to recover from the losses of the Dodgers and Giants at the end of their respective 1957 seasons, New York City embarked upon a project to lure a new Major League baseball team to New York. To that end, in 1961 the New York State Legislature enacted the required legislation authorizing New York City to construct and finance a municipal baseball stadium within the park. This facility became known as Shea Stadium, and was the home for the New York Mets for nearly 50 years.
In 2008, Shea Stadium was demolished, and replaced with a new stadium, presently known as Citi Field. This demolition and construction was part of an overall plan to re-develop that particular property and other, blighted, property in the area of Queens known as Willets Point, for which the City had issued requests for proposals for area re-development. Queens Development Group, LLC (QDG), a joint venture formed by entities controlled by Sterling Equities Associates (owners of the Mets) and The Related Companies, submitted a proposal for construction of retail space, a hotel, an outdoor space, a public school, and affordable housing in the Willets Point neighborhood, and a large-scale retail complex and movie theater on an area designated “Willets West,” on the Citi Field parking lot where Shea Stadium once stood.
Plaintiffs, including a State Senator, not for profit groups, businesses, taxpayers, and users of Flushing Meadow Park sued to enjoin the proposed development on parkland. The case wound its way to the Court of Appeals, which invoked the Public Trust Doctrine to enjoin the proposed commercial uses of the parkland areas. However, in doing so, the Court was required to review the history of the Public Trust Doctrine, and the particular legislation which had initially authorized Shea Stadium and later authorized redevelopment, and its analysis serves as a teaching moment for municipal attorneys (and attorneys for developers and community groups) in re-emphasizing the rule that park property is held in public trust, inviolate to non-park uses, unless the State Legislature grants a clear authorization for the intrusion of other uses.
In Avella, the City and the developers argued that the 1961 legislation under which Shea Stadium had been constructed in Flushing Meadows Park was broad enough to allow the construction of a shopping mall more than a half-century later. This required the Court of Appeals to review the specific (but not necessarily clear) language of the 1961 State legislation, in order to determine the scope of the granted authority.
The Court cited Van Cortland Park,10 holding that the approval of the Legislature must be “plainly conferred” through “direct and specific approval.” The specific State legislation in 1961, codified in Administrative Code of the City of New York section 18-118, granted the City authority to enter into agreements to use the grounds and buildings “to use, occupy, or carry on activities in, the whole or any apart of a stadium, with appurtenant grounds, parking areas, and other facilities.” After lengthy and detailed discussion and analysis, the Court concluded that this language clearly did not extend to construction of a shopping mall or movie theater, as these were not “appurtenant” to the clearly authorized stadium and parking lot uses. Rather, these were commercial uses, not within the ambit of the permissible park uses, or the stadium and its related uses.
The Court noted that the redevelopment of Willets Point was a laudable goal, but that good intentions were not a sufficient basis upon which to permit parkland to be used for non-park purposes. Arguments as to the merit of the proposed uses, or lack thereof, would have to be addressed to the State Legislature, which has the final authority to determine the uses to which parkland may be put.
Chief Judge DiFiore filed a lengthy dissent, arguing that the Legislature previously had authorized the use of this land for non-park purposes, and that the majority had too strictly read the statutory language. In her view, the statute was broad enough to authorize uses which were for the benefit of the public, and were related to the permitted uses of Citi Field, such that the Public Trust Doctrine did not prevent the proposed uses.
The end of this saga is probably not yet written. The most obvious path for the City and the developers is to seek a new legislative authorization for the Willets Point West project, since it is clearly within the province of the Legislature to grant that permission.
In this respect, however, it should be kept in mind that the State has long had a policy of requiring some mitigation whenever it permits parkland to be put to some other use. Details of this policy, and how it is implemented, are found in the “Handbook on the Alienation and Conversion of Municipal Parkland in New York”11 published in 2012 by the New York State Office of Parks, Recreation & Historic Preservation. That policy generally requires the provision of substitute parkland for the lands being alienated, although there have been some exceptions allowed by the State Legislature.
The moral of the story is that local governments can avoid inevitable litigation, and the likelihood of adverse outcomes, by taking care to permit only park and park-related uses on designated parkland property. However, economic and political pressures frequently motivate governments into pushing the envelope in this regard, so it is likely that we haven’t seen the end of Public Trust Doctrine litigation.
1 __ NY3d __ (2017) 2017 NY Slip Op 04383.
2 95 N.Y.2d 623 (2001).
3 229 N.Y. 248 (1936),
4 15 N.Y.2d 221 (1965),
5 30 N.Y.2d 48 (1972),
6 22 N.Y.3d 648 (2014),
7 Supra note 4.
8 23 N.Y.3d 631 (2014)
9 Capruso v. Village of Kings Point, 102 A.D.3d 902 (2013)
10 Supra note 2.