Adаm Clayton Powell, IV, et al., Appellants, v City of New York et al., Respondents.
Supreme Court, Appellate Division, First Department, New York
924 NYS2d 370
Michael D. Stallman, J.
Order and judgment (one paper), Supreme Court, New York County (Michael D. Stallman, J.), entеred January 27, 2010, which granted defendants’ motions for summary judgment, denied plaintiffs’ cross motion for summary judgment, and declаred that neither Asphalt Green nor Bobby Wagner Walk is subject to the public trust doctrine, and therefore, the City оf New York is not required to obtain legislative approval before commencing demolition, construсtion or operation of an access ramp and marine waste transfer station located аt East 91st Street in Manhattan, unanimously affirmed, without costs.
In
In this action, plaintiffs seek a judgment declaring that defendants cannot proceed with the construction and operation оf the East 91st Street MTS without authorization from the New York State Legislature.1 Plaintiffs maintain that because the prоject will encroach upon alleged parkland for nonpark purposes, the public trust doctrinе 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 thе 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 ramр 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 Asрhalt 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 operаtion of the MTS and access ramp. We now affirm.
Under the public trust doctrine, state legislative apprоval is required before parkland can be alienated or used for an
The motion court properly concluded that Asphalt Green and Bobby Wagner Walk do not constitute parkland subject to the public trust doctrine. Neither area has ever been mapped or expressly dedicated as a public park. Nor are these properties parks dedicated by implicatiоn. Asphalt Green was not acquired by the City for park purposes. Indeed, a 1989 assignment of a part of Asphalt Green to the Department of Parks includes a condition that the land not be formally “mapped” as рarkland, which shows an unambiguous intent that the site not be dedicated as a public park. Moreover, Asphаlt Green is operated by a non-city entity and the public’s access is restricted 70% of the time to those who pay substantial membership fees. As for Bobby Wagner Walk, the Department of Transportation owns the prоperty, and it functions primarily as a thoroughfare, which distinguishes it from a park. Thus, plaintiffs cannot establish an unequivocal intent to dedicate these areas as public parkland.
Even if the subject properties could be considered parks, the reconstruction of the access ramp and MTS would not result in a “substantiаl intrusion on parkland for non-park purposes” (Friends of Van Cortlandt Park, 95 NY2d at 630). Neither the temporary loss of some storage spаce under the existing access ramp nor the minimal encroachment onto the subject properties will substantially interfere with access to or use of the facilities. Furthermore, the construction is scheduled to mostly occur at night and last only 22 to 24 months overall, with only 11 months needed for demolition and reconstruction of the access ramp.
We have considered plaintiffs’ remaining arguments and find them unavailing. Concur—Andrias, J.P., Saxe, Moskowitz, Richter and Manzanet-Daniels, JJ.