Friends of Van Cortlandt Park v. City of New York

Nos. 00-6183(L) et al. (232 F.3d 324) (2d Cir. November 15, 2000)

ELR Digest

The court certifies a question to the New York Court of Appeals whether state legislative approval is required before New York City can construct a water treatment plant (WTP) under parkland in the Van Cortlandt Park in the Bronx. The city planned to build the WTP pursuant to a consent decree between the U.S. Environmental Protection Agency and the city of New York that requires the city to provide filtration and disinfection for one of its water supply systems. The state and citizens sued the city in district court claiming that legislative approval was required for construction of the WTP because of its location. The district court, however, held that no legislative approval was required. The citizens and the state appealed and requested that the issue of whether state legislative approval is required for the proposed WTP be certified to the New York Court of Appeals. The court first holds that it will certify the question to the New York Court of Appeals. The law of New York is not clear on whether state legislative approval is required and the issue seriously implicates matters of major public interest. Additionally, the fact that the state and the city are on opposite sides of this state law issue adds a potent reason why the issue should be resolved by the state's highest court. The court next holds, however, that it will adapt the certification request to the special exigencies of the situation. If legislative approval is determined to be necessary, the city will have already missed two filing deadlines for requesting and obtaining any necessary state legislation, will already have incurred liability for substantial daily fines, and will continue to accrue liability for such fines at the rate of $ 10,000 a day. Therefore, the court will not subject the parties to whatever delay might result from certification unless the New York Court of Appeals itself determines that it expects to resolve the certified issue on an expedited basis. The court will expect to withdraw the certification unless the state court, in the event that it elects to accept the question certified for its decision, indicates that it reasonably expects to be able to decide the certified question within 90 days after accepting certification.

The full text of this decision is available from ELR (6 pp., ELR Order No. L-297).

Counsel for Plaintiffs
Peter C. Trimarchi
Schulte, Roth & Zabel
900 Third Ave., New York NY 10022
(212) 756-2000

Counsel for Defendants
Eliot Spitzer, Attorney General
Attorney General's Office
State Capitol, Albany NY 12224
(518) 474-7330

[31 ELR 20242]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]