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United States v. New York, City of

Citation: 30 ELR 20573
No. Nos. 97 CV 2154 NG SMG et al., 179 F.R.D. 373/(E.D.N.Y., 05/12/2000) no alienation of parkland

The court holds that the construction of a water treatment plant (WTP) by the city of New York does not involve alienation of parkland that requires the city to seek the approval of the state legislature. Pursuant to a consent decree between the state and the U.S. Environmental Protection Agency, the city conducted environmental review of potential sites for the WTP and chose a golf course. The plant would be located underground and would require the destruction and reconstruction of the driving range and the temporary disruption of public use of the parkland. The court first holds that the temporary disruption of the public use of parkland occasioned by the construction of a project that is otherwise permissible can be approved by the city, without the need for state legislation or the approval of a state agency. That changes in the existing grade will occur in some areas to accommodate the plant is immaterial no authority requires a municipality to seek state legislative approval to the gradient of parkland. Further, no authority prohibits underground use of parkland for nonrecreational purposes related to a municipality's need to deliver essential services to its residents without legislative approval where that use will not interfere with the recreational use of the surface. Additionally, state legislative approval is not a precondition to the temporary disruption of parkland necessarily occasioned by the construction of the WTP. Ultimately, no alienation of parkland will occur. The land will remain in the city's ownership, possession, and control during and after construction so there will be no transfer of an interest in the land to another entity. Further, since there will be no diminution of parkland available for public use after the plant is built, underground use of the parkland is not an alienation in the sense of diversion of parkland for nonpark purposes.

The court next holds that no amendment of the zoning laws is necessary for construction and operation of the WTP at the golf course. The WTP does not create a former public park or portion thereof that would give rise to the need for a zoning amendment. Additionally, the entities responsible for land use matters, carefully reviewed and considered all relevant factors based on a comprehensive environmental impact statement and approved the project only after allowing extensive opportunities for public comment and holding public hearings. The court further holds that the city fully complied with state environmental laws in conducting its environmental review.

The full text of this opinion is available from ELR (15 pp., ELR Order No. L-223).

Counsel for Plaintiff
Gordon J. Johnson, Ass't Attorney General
Attorney General's Office
120 Broadway, 25th Fl., New York NY 10271
(212) 416-8050

Counsel for Defendants
Michael D. Hess
Office of Corporation Counsel
100 Church St., New York NY 10007
(212) 788-0303