Judges Grill City Lawyer on
Giving hope to local activists and their attorneys, the seven judges sitting on the state's highest court appeared, at a hearing in Albany on Jan. 3, to be highly critical of the city for not seeking legislative approval for its plan to construct a 23-acre filtration plant at Mosholu Golf Course in Van Cortlandt Park.
"Why didn't the city seek legislative approval?" asked Judge Carmen Beauchamp Ciparick of city attorney Ron Sternberg. "You just had to go through one more step and you didn't do it. Why didn't you do it?"
State law requires local government to get the OK from the state legislature before disrupting park land for a non-park use.
Though they were encouraged to do just that by the state attorney general as far back as Jan. 14, 1999, the city opted to forge ahead without permission from Albany lawmakers.
City lawyers steadfastly maintain that ripping up the golf course for the filtration plant does not require "alienation" because they plan to restore the golf course over the facility when it is completed in about six years.
"Our contention is that no part of the park surface will be used, and that the park will be fully restored," Sternberg said in a phone interview after the hearing. "The fact that the grade of the park is concededly changing doesn't affect the outcome."
But the judges, it appeared, were skeptical. Chief Judge Judith Kaye peppered Sternberg with questions about what would necessitate legislative approval?
If the project were built entirely underground but took 50 years to build, wouldn't that require alienation? Kaye asked. It would not, Sternberg responded.
Later she asked Sternberg, "The ground will be raised, will it not? Do you need an elevator to get to the top?" Sternberg conceded that the ground would be raised - 30 feet in the part of the park nearest to Jerome Avenue - but that the "change of topography means nothing" if the end result doesn't change the use of the park.
Trying one more time later in the hearing, Kaye asked if legislative approval would be necessary if a nuclear power plant were to be constructed over a 50-year period under the park. Once again Sternberg said that it would not, eliciting muffled gasps from portions of the spectators' section which was filled with Bronx residents and park advocates.
Judge Albert M. Rosenblatt got the biggest laugh of the hour-long session after Sternberg, in response to one of Kaye's questions, said that the height of the facility was irrelevant. "It's going to make the13th hole a par 15," Rosenblatt said, referring to the new height of the restored golf course.
Asked in the phone interview what then would necessitate legislative approval, Sternberg said, "If this same project were determined to be located on the surface of the park that would constitute the use of a park for non-park purposes and would require legislative approval."
The court's newest judge, Victoria Graffeo, who was hearing cases on that day for the first time, had a slightly different question. "Aren't you restricting future park usage?" she asked.
"The fact that the topography may change doesn't affect [the fact] that the park remains a park," Sternberg responded.
But Paul Sawyer, executive director of the Friends of Van Cortlandt Park, said Graffeo's question was on the mark, that the Parks Department would not be able at some future time to, for instance, to plant a forest of trees in the shallow soil that will cover the plant.
Attorneys for Norwood residents and park advocates argued that the city was trying to mask the massive scope of the facility. Howard Epstein, representing the Friends of Van Cortlandt Park, described the project this way: "If you can visualize Yankee Stadium in the ground in this park."
Epstein also said the lengthy construction period was, in fact, a use of park land for a non-park use, as it would render a nearby playground and other parts of the park off limits to residents. "Six years is a generation for a child," Epstein said.
Also arguing the case on the side of the plant's opponents were Jack Lester, attorney for Norwood Community Action, a group of local residents, and Gordon Johnson of Attorney General Eliot Spitzer's office.
The historic hearing may have represented the last day in court for the activists opposed to the construction of the plant, which they believe will destroy the community's quality of life by exacerbating traffic, noise and air pollution.
It will be rough going for the city if the court rules that it must seek the legislature's OK. Assemblyman Jeffrey Dinowitz and State Senator Guy Velella, whose districts include the golf course site, said they would not introduce park alienation legislation. Protocol in the legislature holds that the lawmaker from the district affected introduce such legislation. Both Dinowitz and Velella attended the hearing.
"As long as I'm in the Senate and they need Senate approval, it won't happen," Velella vowed in the corridor of the courthouse.
Dinowitz said the stakes couldn't be higher. "If the court rules against us, they're opening the door in the future to all kinds of destruction of parkland in the state of New York, and that's very disturbing," he said.
The Court of Appeals ruling in the case could come as early as Feb. 8, said court spokesman Gary Spencer. The court could also hand down a decision on Feb. 13, 15 or 20.
Because the city wants to break ground on the project this spring, park advocates are concerned that could mean the city will begin clearing the trees at the golf course site as early as February.
Ed. note: The legal briefs presented by both sides in this case can be read by clicking on the link to "Ongoing Story."
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