Stephenson v. County of Monroe

No. 4063/73 (N.Y. App. Div. January 17, 1974)

A lower court order is reversed, and summary judgment and a preliminary injunction granted to plaintiffs in a taxpayers' suit seeking to prevent the establishment of a sanitary landfill in a public park. Park areas in New York state are impressed with a public trust and may not be used for other than park purposes without the direct and specific approval of the legislature. The court finds that the planned use of the landfill as a ski slope does not alter the fact that refuse disposal is not a park purpose, and forbids such a use of park land after noting that the defendants have failed to show that the required legislative approval has been obtained.

Counsel for Plaintiffs
Wayne M. Harris
Thomas R. Burns
Harris, Carroll & Creary
226 Powers Building
Rochester, New York 14614

Counsel for Defendants
William J. Stevens County Attorney
Michael K. Consedine
307 County Office Building
Rochester, New York 14614

[4 ELR 20364]

Per Curiam

MEMORANDUM

Plaintiffs appeal from an order of the Supreme Court, Monroe County, denying their motion for summary judgment and a preliminary injunction in a taxpayers' suit, brought pursuant to section 51 of the General Municipal Law, seeking to prevent the County of Monroe from establishing a sanitary landfill within Black Creek Park in the Towns of Chili and Riga. Plaintiffs, by their complaint and affidavits in support of their motion for summary judgment, aver that the area known as Black Creek Park is a public park owned by the County and that the County has at all times intended to use the area solely as a public park and has irrevocably dedicated it for that purpose. They also aver that, based upon the report of an engineering consultant firm, the County, contrary to law, has approved the use of a portion of the park as a sanitary landfill, ostensibly for the purpose of converting the landfill area into a ski slope some five years hence. Affidavits submitted by the County in support of its cross-motion to dismiss plaintiffs' complaint merely tend to justify use of the park as a landfill area on an engineering and environmental basis. No fact is set forth therein in contradiction of the material allegations of the complaint and, therefore, the affidavits are insufficient to defeat plaintiffs' motion for summary judgment (Shapiro v. Health Insurance Plan, 7 N.Y.2d 56; O'Meara [4 ELR 20365] Company v. National Park Bank, 239 N.Y. 386; General Investment Company v. Interborough Rapid Transit Company, 235 N.Y. 133; CPLR 3212, subd. (b)). Park areas in New York are impressed with a public trust and their use for other than park purposes requires the direct and specific approval of the State Legislature, plainly conferred (Williams v. Gallatin, 229 N.Y. 248; Brooklyn Park Commissioners v. Armstrong, 45 N.Y. 234; Aldrich v. City of New York, 208 Misc. 930, affd. 2 AD 2d 760; American Dock Company v. City of New York, 174 Misc. 813, affd. 261 App. Div. 1963, affd, 286 N.Y. 658. See also Miller v. City of New York, 15 NY 2d 34; Inc. Village of Lloyd Harbor v. Town of Hutington, 4 NY 2d 182). Since the County has failed to show that such approval has been obtained, the sole question presented on this motion is whether the disposal of refuse in a park is an activity consistent with park purposes so as to obviate the need for legislative sanction. We are convinced that it is not (Village of Croton-On-Hudson v. County of Westchester, 38 AD 2d 979, affd. 30 NY 2d 959) and the mere speculation that one day people might ski down a mountain of garbage does not make it so. (Appeal from Order of Monroe Special Term, Livingston, J., in action to declare use of park as landfill to be illegal.) Present. Goldman, P.J., DelVecchio, Marsh, Moule, Simons, J.J.