State Protections for City Parkland
Cities and towns are frequently tempted to use parkland for other public needs or commercial uses. Local governments are called on to widen roads, improve public transit or water systems, build schools and housing, and encourage economic development. Sometimes, a park is the most practical, or most expedient, site. Actions by municipalities may affect parks in other ways -- for example, through the draining of wetlands to build ball fields or the rerouting of traffic next to a park. State law in New York (and many other states), however, helps hold off potential park intrusions, as a number of recent and ongoing New York City park controversies illustrate.
The Public Trust
The major state safeguard for parks is known as the parkland, or public trust, doctrine, a widely accepted legal principle that parks are to be kept for the people. In New York, this doctrine is part of the common law, a body of law established through judicial decisions that recognizes rights that are generally agreed upon by society. New York State's common law is rooted in the centuries-old English common law brought here by the colonists.
The state courts have repeatedly ruled that if land has been dedicated as a park -- or, in some cases, used as a park consistently for many years to the point where it has been recognized as public space -- it cannot be "alienated," or taken for a non-park use, without the approval of the State Legislature.
This doctrine was invoked by the state Court of Appeals, the state's highest court, when it ruled that the city could not proceed with its plans to site a federally mandated water filtration plant in Van Cortlandt Park unless it got approval from the New York State Legislature. According to the city's plans, building the plant would have required closing the park's golf course and driving range for five years. The finished plant was to be partially underground, rising to a height of 30 feet at one end, with the driving range rebuilt on top. Residents of the adjacent neighborhood opposed the plan, as did the local state legislators, making legislative approval unlikely.
Public trust law also allowed Tribeca residents to sue to resurrect Canal Street Park, one of the city's first public parks. It was a small but elegant space first created by Ignatz Pilat and later remade by Samuel Parsons, both eminent landscape designers. The park fell into disrepair, and in 1929, without legislative approval, it was transferred to the state Department of Transportation and paved over to use during the construction of the West Side Highway. In recent years the city used it for parking garbage trucks. "This was one of those lawsuits that had a happy outcome," said Parks Commissioner Adrian Benepe. As part of its reconstruction of Route 9A, the state Department of Transportation agreed to build a new park. The design, by the department and the city parks department, is inspired by a combination of the two original versions, according to the commissioner, who said they hope to have construction under way by next spring.
In Staten Island, a controversy is brewing over the use of beaches for public transportation and commuter parking, a possible alienation of parkland. The city recently turned over a parking lot at South Beach to commuter parking during the week. The Staten Island Advance recently reported that the Port Authority is proposing to build a high-speed ferry pier and commuter park-and-ride lots somewhere on the beachfront, possibly Midland Park. Jim Scarcella, president of the Staten Island-based Natural Resources Protective Association, said, "If they're going to use our parks for purposes other than they've been intended, we're going to request they do the full act of the State Legislature that's required to do this."
Even when an alienation is approved, state law provides leverage to get something equivalent in exchange -- new parkland or park improvements -- as mitigation. The New York State Office of Parks, Recreation and Historic Preservation publishes a guidebook on the process, which can be requested by mail from the Counsel's Office, Empire State Plaza, Building 1, 19th Floor, Albany, NY 12238.
A proposal for the United Nations to erect an office building on Robert Moses Park, an asphalt yard and dog run on 42nd Street, would have to go through the alienation legislative process. The new tower would provide offices for the 5,000 people who now work in the Secretariat building while it is being renovated. Acknowledging the importance of keeping the United Nations headquarters in New York and allowing it to improve its facilities, Dave Lutz of the Neighborhood Open Space Coalition speculated about what the city might get in return for giving up the only park in that area: "For years, people have been looking for a greenway past the U.N.," he said. Parks Commissioner Benepe confirmed that an extension of the pedestrian promenade along the river near the United Nations is one option being discussed. "There is very little open space in that community," he said, "so it would have to be replaced on a square foot for square foot basis."
Environmental Protections -- or Not
State environmental laws also can be applied to protect the integrity of parks and natural areas, though there are loopholes, and enforcement remains spotty. State law covers wetland areas over a minimum size, including those in parks, but only if the wetlands have been officially identified on agency maps, whose accuracy has been questioned. The State Environmental Quality Review Act (SEQRA) mandates a review of potential environmental impacts (the environmental impact statement, or EIS) for major land use changes. But projects are often allowed to proceed when the state accepts a preliminary "environmental assessment" concluding that no further review is needed.
A project also is not required to have an environmental impact statement if it is a replacement "in kind," noted Mark Caserta, Director of the Waterfront Park Coalition. He said that his group is concerned about the effects of the city's replacement of the bridges over the Harlem River. The work could shower lead paint on waterfront parks adjacent to the bridges, increase traffic and air pollution in the area, and use as staging areas sites earmarked to complete a greenway along the river. But, because no environmental impact statement is needed, the city will not have to mitigate the impact.
But the fact that environmental laws are on the books gives citizens and advocacy groups legal tools when fighting a project they believe would cause environmental harm. These laws have also had an advocate in Attorney General Eliot Spitzer. The Attorney General's office played a significant role in the Van Cortlandt Park case, and also sued to stop the city from selling or developing community gardens on city land.
In the community garden lawsuit, which was recently settled, the state based its case both on the State Environmental Quality Review Act and the public trust doctrine. Although the community gardens are not officially dedicated parks -- in fact, the city viewed them as quite the opposite, vacant lots temporarily growing tomatoes until a better use for them could be found -- the Attorney General's lawsuit argued that they had become parks by implication. "Some have been in existence for 20 to 25 years of continuous, uninterrupted use," said Assistant Attorney General Chris Amato. "They have large trees. They have benches. Some have amphitheaters. They have all the attributes of a public park, and are used that way by the community."
The lawsuit also maintained that developing the garden lots violated the environmental law because the city was proceeding to sell off or develop the lots without adequate environmental review or public input.
The final agreement released 38 gardens for the development of low-income and market-rate housing. These were the gardens that already had gone through the city's land review process. The largest number of gardens, 198, were offered transfer either to the New York City Parks department or one of the land trusts set up by two nonprofits that purchased more than a hundred threatened gardens several years ago. Gardens already under the jurisdiction of the Parks department, the Department of Education, and other non-developing agencies -- a total of 193 - will continue as community gardens. The remaining 114 gardens are subject to possible future sale or development, but only after a "garden review process" that is yet to be established. The city must offer an alternate site, which may or may not be feasible to the existing community gardeners.
As in the community garden issue, it can be a tough call whether a project is important enough to displace open space. Should senior housing, for example, take precedence? "Citizens take very seriously the value of the parkland at the end of their streets -- which is a double-edged sword, because sometimes there is a very good, rational reason to change the use of parkland," said Commissioner Benepe. "If there ever is a good, rational use for alienating parkland, we have to make sure we do our homework ahead of time, and make sure that substitute parkland is provided."