Friends of Van Cortland Park v. City of NY

• Citation: 727 N.Y.S.2d 2,95 NY2d 623
• Decision Date: 08 February 2001
• Docket Number: No. 20,20
• Parties: (Ct.App. 2001) Friends of Van Cortlandt Park, et al., Appellants, State of New York, Intervenor-Appellant, United States of America, Plaintiff, et al., Intervenor, v. City of New York, et al., Respondents. USCOA, 2
• Court: New York Court of Appeals Court of Appeals

Page 2

727 N.Y.S.2d 2 (Ct.App. 2001)

Friends of Van Cortlandt Park, et al., Appellants, State of New York, Intervenor-Appellant, United States of America, Plaintiff, et al., Intervenor, v. City of New York, et al., Respondents.

USCOA, 2 No. 20.

NEW YORK COURT OF APPEALS.

Argued Jan.3, 2001.

Decided Feb. 8, 2001.

Schulte Roth & Zabel, L.L.P., New York City (Howard B. Epstein, Thedore A.Keyes and Peter C. Trimarchi of counsel) for Friends of Van Cortlandt Park and another, appellants.

Eliot Spitzer, Attorney General, New York City (Gordon J. Johnson, Norman Spiegel and Peter G. Crary of counsel), for Intervenor-appellant.

Michael D. Hess, corporation Counsel of New York City (Ronald E. Sternberg, Leonard Koerner and Inga Van Eysden of counsel), for respondents.

Andrew Brick, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.

Opinion by Chief Judge Kaye.

KAYE, CHIEF JUDGE:

The Croton Watershed--a series of interconnected reservoirs and lakes located primarily in Westchester, Dutchess and Putnam counties--is one of New York City's three principal drinking water sources, supplying between 10 and 30 percent of the City's requirements. In 1992, after preparing a report concluding that filtration would be necessary to ensure the safety of water from the Croton Watershed, the City entered into a stipulation with the New York State Department of Health, acknowledging that State and Federal law required it to build a filtration plant. The City agreed to complete design of a water treatment plant by July 1995, and complete construction by July 1999.

In 1993, the United States Environmental Protection Agency determined that the Surface Water Treatment Rule (40 CFR 141.70-141.75) required the City to filter and disinfect its Croton water supply. Without challenging the EPA's determination, the City began designing a water treatment plant. Impatient with the City's lack of progress, in 1997 the Federal government brought suit in the District Court for the Eastern District of New York against the City and its Department of Environmental Protection for violation of Federal law. The State intervened as a plaintiff, alleging noncompliance with the State Sanitary Code.

Recognizing that the public interest would be best served by resolving the litigation, the parties, in 1998, executed a consent decree requiring filtration and disinfection of the Croton water. The decree establishes 26 "milestones," or deadlines, for stages of the water treatment plant, including a final Environmental Impact Statement and approvals under the City's Uniform Land Use and Review Procedure by July 31, 1999; construction completion by September 1, 2006; and operation by March 1, 2007. Milestone 14 provides that by July 31, 1999 "in the event that use of the selected site for the [plant] requires State legislation, the City shall request state legislation and home rule message from the City Council." Milestone 15 further specifies that any such legislation must be obtained by February 1, 2000. Failure to comply, under the consent decree, subjects the City to substantial penalties.

As designed, the water treatment plant is to be a 473,000 square foot industrial facility covering 23 acres, with a raw water pumping station, finished water pumping station and tunnel linking the plant to a distribution system near another reservoir. It will operate around the clock, seven days a week, filtering 290 million gallons of water and producing up to 61 tons of "dewatered sludge cake" daily. Once the plant is operational, the Croton water will be transported there for treatment, fluoridation, chlorination and distribution.

After considering several locations, in December 1998 the City announced that its preferred site was the Mosholu Golf Course in Van Cortlandt Park, the City's third largest park, dedicated as parkland by an act of the Legislature in 1884 (see, L 1884, ch 522).¹ The Mosholu Golf Course is a year-round, nine-hole course and driving range regularly used by the public (in 1997, for example, approximately 33,000 rounds of golf were played there) as well as by schools and youth programs. It is the only City golf course directly accessible by subway.

According to the Environmental Impact Statement, construction at the Mosholu site is scheduled to last more than five years, during which time 28 acres of parkland --including the golf course and driving range--will be closed to the public, and will become an active construction site. Construction will require demolition of the clubhouse, roads and parking areas, which will later be restored. The driving range, however, will be rebuilt on the roof of the plant, above a layer of dirt. The Environmental Impact Statement further discloses that hundreds of trees and associated vegetation rare to New York City--whose "loss would represent a potential significant adverse impact"--are threatened by the construction, and a million cubic yards of soil and rock will be removed from the park. During peak construction, more than a thousand workers will be at the site, and hundreds of vehicles will deliver construction materials and remove soil.

The plant will, moreover, change the gradient of the park. Though the plant is to be built underground in the sense that it will be below "finished grade," its roof will be between five and 30 feet above existing ground elevation. Additionally, vents and air intake louvers placed in berms surrounding the facility will extend above finished grade.

In January 1999, shortly after site selection, the State Attorney General advised the City that, in his view, legislative approval was necessary before parkland could be used for this project. Citizen groups opposed the project, arguing it was not authorized by the State Legislature; 33 State legislators similarly urged that the City did not have authority to build the plant in Van Cortlandt Park without legislative permission.

On July 21, 1999, the City Council approved the application for plant construction at the Mosholu site. By letter dated July 30, 1999, the Attorney General reiterated that use of the proposed site without first obtaining Legislative approval would violate State law, advising:

"construction of the Plant at the selected site in Van Cortlandt Park, a process which will include the closing of the golf course for six years, requires state legislation for the reasons we have discussed with counsel for the City beginning in January, 1999. We expect that the City will comply with [milestones 14 and 15] and request legislation and a home rule message from the City Council on or before July 31, 1999."

The City has not sought legislative approval for the project.

Pursuant to the consent decree dispute resolution provision, the State sought relief in the District Court, claiming the City violated its commitment by failing to seek legislative approval for construction and operation of the water treatment plant. Concerned citizens and community groups, similarly, commenced two lawsuits in State Supreme Court--Friends of Van Cortlandt Park, et al. v City of New York and Norwood Community Action, et al. v Department of Environmental Protection, et al.--seeking, among other things, to enjoin development and construction of the water treatment plant in Van Cortlandt Park on the ground that the City impermissibly sought to convert a considerable area of parkland from public use without an act of the State Legislature. Without objection, the two citizen suits were removed to the Eastern District, which had continuing jurisdiction under the consent decree. All of the parties sought summary judgment.

The District Court granted the City's motions, concluding that legislative approval was unnecessary. As the court explained, there being "no transfer of an interest in land to another entity * * * [and] no diminution of parkland available for public use after the plant is built, underground use of the parkland [was] not an alienation in the sense of diversion of parkland for non-park purposes" (United States v. City of New York,96 F Supp 2d 195, 204).

Plaintiffs' appeals were consolidated. On June 30, 2000, plaintiffs State of New York and Friends of Van Cortlandt Park moved to certify to this Court the question whether State legislative approval is required for the proposed use of the Mosholu site. Mindful on the one hand of the desirability that this State law issue be resolved by the State Court of Appeals, and on the other hand of the burden certification of a time-sensitive issue would impose on us, on November 15, 2000 the Second Circuit granted plaintiffs' motion, so long as this Court concluded it could expeditiously resolve the issue (232 F3d 324). On November 21, 2000 we accepted certification (95 NY2d 916), and now answer in the affirmative the following question: "Does any aspect of the proposed [water treatment plant] require state legislative approval?" ²

We begin analysis with two points of agreement by the parties: that this water treatment plant is a non-park use, and that Williams v Gallatin (229 NY 248) is controlling precedent.

In Williams, a taxpayer sought to enjoin the New York City Commissioner of Parks from leasing the Central Park Arsenal Building to the Safety Institute of America, arguing the transaction...