N.Y. State Assemblyman v. City of N.Y.

• Decision Date: 07 June 2011
• Citation: 85 A.D.3d 429,2011 N.Y. Slip Op. 04727,924 N.Y.S.2d 370
• Parties: NEW YORK STATE ASSEMBLYMAN, Adam Clayton Powell, IV, et al., Plaintiffs–Appellants,v.CITY OF NEW YORK, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 429

924 N.Y.S.2d 370

2011 N.Y. Slip Op. 04727

NEW YORK STATE ASSEMBLYMAN, Adam Clayton Powell, IV, et al., Plaintiffs–Appellants,

v.CITY OF NEW YORK, et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

June 7, 2011.

Schulte Roth & Zabel LLP, New York (Howard Epstein of counsel), for appellants.Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.ANDRIAS, J.P., SAXE, MOSKOWITZ, RICHTER, MANZANET–DANIELS, JJ.

Order and judgment (one paper), Supreme Court, New York County (Michael D. Stallman, J.), entered January 27, 2010, which granted defendants' motions for summary judgment, denied plaintiffs' cross motion for summary judgment, and declared that neither Asphalt Green nor Bobby Wagner Walk is subject to the public trust doctrine, and therefore, the City of New York is not required to obtain legislative approval before commencing demolition, construction or operation of an access ramp and marine waste transfer station located at East 91st Street in Manhattan, unanimously affirmed, without costs.

In October 2004, the City of New York announced a proposed Comprehensive Solid Waste Management Plan (SWMP), which would include the building of a new solid waste marine transfer station (MTS) on City-owned property at East 91st Street and the East River in Manhattan, the site of a former MTS that was last operated in 1999. The goal of the SWMP is to convert the City's existing MTSs to enable waste to be containerized on site, thereby making the waste suitable for out-of-City barge and rail export.

In this action, plaintiffs seek a judgment declaring that defendants cannot proceed with the construction and operation of the East 91st Street MTS without authorization from the New York State Legislature.¹ Plaintiffs maintain that because the project will encroach upon alleged parkland for non-park purposes, the public trust doctrine requires prior legislative approval of the plan. In particular, plaintiffs contend that the demolition and reconstruction of the MTS, including an access ramp leading to it, will constitute alienation of the Asphalt Green sports center and Bobby Wagner Walk, a pedestrian thoroughfare along the East River. According to plaintiffs, Asphalt Green will lose storage area beneath the current access ramp during the construction period, and the construction and operation of the MTS will diminish the public's use and enjoyment of both areas.

Both sides sought summary judgment, and in an order entered January 27, 2010, the motion court granted defendants' motions and denied plaintiffs' cross motion. The court concluded that neither Asphalt Green nor Bobby Wagner Walk is a dedicated parkland subject to the public trust doctrine. Alternatively, the court found that even if the areas were parklands, the City's plan would not result in a substantial intrusion on the lands so as to implicate the public trust doctrine. Accordingly, the court declared that the City was not required to obtain legislative approval before commencing demolition, construction or operation of the MTS and access ramp. We now affirm.

Under the public trust doctrine, State legislative approval is required before parkland can be alienated or used for an extended period for non-park purposes ( Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 630, 727 N.Y.S.2d 2, 750 N.E.2d 1050 [2001] ). A parcel of land may constitute a park either expressly, such as by deed or legislative enactment, or by implication, such as by a continuous use of the parcel as a public park ( Matter of Angiolillo v. Town of...