Plaintiffs-Appellants Friends of Van Cortlandt Park and The Parks Council, Inc. ("Plaintiffs-Appellants") submit this Reply Brief in further support of their appeal of the District Court's Order and Opinion denying Plaintiffs-Appellants' cross-motion for summary judgment and granting Defendants-Appellees'("Appellees") motion for summary judgment.

Appellees' brief in opposition does little to help focus this Court on the issues in dispute on this appeal.  Instead, Appellees attempt to argue that alienation under the public trust doctrine is a question of title and control. To the contrary, the dispositive question under the public trust doctrine is use and whether the proposed use is consistent with park purposes.

In order to resolve this appeal, Plaintiffs-Appellants urge this Court to perform the following straightforward analysis.  First, the Court must determine whether the proposed water treatment plant ("WTP") is a use consistent with park purposes.  Appellants assert and Appellees have all but conceded that it is not.  Second, given that Appellees propose to construct a facility that is inconsistent with park purposes in a public park, the Court must determine whether Appellees have obtained the approval of the New York State Legislature.  As demonstrated by this appeal, Appellees have not.  Third, in view of the fact that the WTP is inconsistent with park uses and purposes and that there has been no legislative approval, the Court must determine if there is some exception to the public trust doctrine that relieves Appellees from their obligation to obtain legislative approval.

Appellees argue that legislative approval is unnecessary because they contend that, after more than five years of construction, the WTP will be covered and the park will be functionally equivalent to what it was before construction.  Appellees assert that this allows them to avoid their obligations under the public trust doctrine. Appellants maintain that, particularly given the magnitude of the proposed project and the absence of examples where similar projects of this size and design have been constructed below the surface, much less in a public park in New York, a ruling that the WTP is within an exception to the public trust doctrine would essentially eviscerate the doctrine. 

Appellees cannot be permitted to bypass the established system of checks and balances which vests in the State Legislature the power to determine whether a given non-park facility may be constructed in a public park.  If Appellees are entitled to so ignore the longstanding requirements of the public trust doctrine and construct this facility in the middle of precious Bronx parkland, it will create a dangerous precedent, at odds with the expressed intent of the New York State Court of Appeals and the New York State Legislature, and it may very well declare open season on public parkland for municipalities in need of public works projects.

Appellees' argument opens with the telling assertion that Plaintiffs-Appellants' position must be incorrect because if accepted "an appropriate utilization of park property may be precluded because the necessary construction is determined to constitute an alienation."  Appellees' Brief at 16.  Appellees' statement presumes that the proposed WTP is an appropriate use of public parkland.  Under the public trust doctrine, however, because the WTP is indisputably a non-park use, the determination of whether the WTP is an appropriate use of public parkland is vested in the State Legislature.  See Williams v. Gallatin, 229 N.Y. 248, 253, 128 N.E. 121, 122 (1920) ("no objects, however worthy, such as courthouses and schoolhouses, which have no connection to park purposes, should be permitted to encroach upon it without legislative authority plainly conferred");  Ackerman v. Steisel, 104 A.D.2d 940, 941, 480 N.Y.S.2d 556, 558 (2d Dep't 1984), aff'd, 66 N.Y.2d 833, 489 N.E.2d 251, 498 N.Y.S.2d 364 (1985) ("Dedicated park areas in New York are impressed with a public trust and their use for other than park purposes, either for a period of years or permanently, requires the direct and specific approval of the State Legislature, plainly conferred.").

Despite Appellees' contention to the contrary, it does not matter whether the alienation at issue involves a traditional conveyance of the City's property interest or simply the introduction of a non-park use that will interfere with the public use and enjoyment of the park.  Appellees' Brief at 17.  In fact, neither Ackerman v. Steisel nor Stephenson v. County of Monroe, 43 A.D.2d 897, 351 N.Y.S.2d 232 (4^th Dep't 1974), concerned the proposed transfer of a property interest.  The case law precedent discussed fully in Plaintiffs-Appellants' Brief makes unmistakably clear that the public trust doctrine applies when a municipality proposes to introduce a non-park use in public parkland even in the absence of an actual transfer of title or other property interest.  Brief of Plaintiffs-Appellants' Friends of Van Cortlandt Park and the Parks Council, Inc.  ("Plaintiffs-Appellants Brief") at 19-24. 

Appellees erroneously attempt to focus this Court's attention on the case of 795 5^th Avenue Corp. v. City of New York, 15 N.Y.2d 221, 205 N.E.2d 850, 257 N.Y.S.2d 921 (1965).  In that case, however, the dispute before the New York State Court of Appeals was whether a restaurant and cafe pavilion to be constructed in Central Park was or was not consistent with park uses.  The Court of Appeals noted that although some witnesses testified that the restaurant was not consistent with park uses, other witnesses testified that "the installation of the pavilion was quite consistent with proper park management and would be a desirable improvement in the park's facilities."  Id., 15 N.Y.2d at 225, 205 N.E.2d at 851, 257 N.Y.S.2d at 923.  As the Court of Appeals recognized long ago in Williams v. Gallatin, a restaurant may very well be consistent with park uses because it contributes to the public use and enjoyment of the park.  229 N.Y. 248, 153-54, 128 N.E. 121, 122-23 ("Monuments and buildings of architectural pretension which attract the eye and divert the mind of the visitor, floral and horticultural displays, zoological gardens, playing grounds, and even restaurants and rest houses and many other common incidents of a pleasure ground contribute to  the use and enjoyment of the park.") [emphasis added].  In contrast, no credible argument can be made that the WTP is consistent with park uses or in any way will contribute to the public use and enjoyment of Van Cortlandt Park.

In addition, it is notable that, like Wigand v. City of New York, N.Y.L.J., Sept. 25, 1967, at 21, col. 5 (N.Y. Sup. Ct. Sept. 25, 1967) (A-536), the unreported trial court case on which the District Court so heavily relied, 795 5^th Avenue Corp. v. City of New York addressed a taxpayer action to enjoin a construction project under section 51 of the New York State General Municipal Law.  Thus, like the plaintiff in Wigand, in order to obtain the injunctive relief sought, the plaintiff in 795 5^th Avenue Corp. had to establish illegality and that public injury or public mischief would occur as a result of that illegality.  Plaintiffs-Appellants' Brief at 40-41.[1]

Appellees also attempt to rely on 795 5^th Avenue Corp. in support of their argument that construction of the WTP, which will close a portion of the park for more than five years, does not alone require the City to seek legislative approval under the public trust doctrine.  In furtherance of this argument, Appellees assert that the construction of the pavilion described in 795 5^th Avenue Corp. would likely "entail a lengthy construction process that would temporarily close a portion of the City's premier park."  Appellees' Brief at 16.  This is merely conjecture on the part of Appellees.  There is simply no discussion of construction issues or closure of the park in the opinion issued in connection with 795 5^th Avenue Corp.,  15 N.Y.2d. 221, 205 N.E.2d 850, 257 N.Y.S.2d 921 (1965).  In any case, since the restaurant was held to be consistent with park uses, construction of the restaurant would not present the same issues presented by construction of the WTP.

In fact, neither 795 5^th Avenue Corp. nor any other case supports Appellees' contention that a temporary intrusion to parkland, particularly one for a period of more than five years, does not constitute an alienation unless the completed project will interfere with the use of the park.  Appellees' Brief at 18.  Such a contention, in fact, is directly contrary to the available precedent, which expressly forbids the introduction of non-park uses to parkland without legislature approval, even for a period of years.  See Ackerman v. Stiesel, 66 N.Y.2d 833, 489 N.E.2d 251, 498 N.Y.S.2d 364 (1985);  Miller v. City of New York, 15 N.Y.2d 34, 203 N.E.2d 478, 255 N.Y.S.2d 78 (1964); Williams v. Gallatin, 229 N.Y. 248, 128 N.E. 121 (1920); Stephenson v. County of Monroe, 43 A.D.2d 897, 351 N.Y.S.2d 232 (4^th Dep't 1974).[2]  Where the construction of a non-park facility will undeniably interfere with park uses and render a significant portion of the park inaccessible for the better part of a decade, the construction period itself must be evaluated in its own right and it is up to the State Legislature to perform the evaluation.  Any other result would permit municipalities to tie up parkland for non-park uses as long as, at the end of an undefined period, the completed project did not interfere with the use of the park.  Such a result directly contradicts the purpose of the public trust doctrine.[3]

Appellees argue that the cases cited by Plaintiffs-Appellants are distinguishable because they do not concern underground facilities.  While the case law does not expressly discuss underground projects, the rationale presented in those cases remains fuly applicable.  See William v. Gallatin, 229 N.Y. 248, 254, 128 N.E. 121, 123 (1920)(parkland must be "kept free from intrusion of every kind which would interfere in any degree with its complete use for [park purposes]").  Neither Appellees nor the District Court have cited any precedent that expressly recognizes an underground exception to the public trust doctrine.

The District Court and Appellees ignore the fact that never before, at least in New York, has a project similar in design and magnitude to the WTP been constructed in a public park.  Appellees instead attempt to argue that the City historically has installed public utility lines and sewers beneath parkland without first obtaining legislative approval.  These types of projects, however, are not even close to comparable to the proposed WTP.  The installation of a utility line does not take five and one-half years; it does not require closure of a portion of parkland sufficient to interfere with the public use and enjoyment of the park; it does not restrict future use of the above-ground portion of the park; and it does not forever alter the above and below-ground character of the park.  In contrast, installing the stadium-sized WTP in Van Cortlandt Park will have all these impacts and will also create a permanent industrial facility forever to remain in the park.[4]

Given the nature and magnitude of the proposed project, it is apparent that this is exactly the circumstance where application of the public trust doctrine is most important.  Under that doctrine, it is the State Legislature, not the City or the District Court, that is charged with weighing the public interest in the WTP against the public interest in protecting Van Cortlandt Park and keeping the park available for the use and enjoyment of the public.  The District Court cannot be permitted to substitute its judgment and usurp the role of the State Legislature. 

Time and again in this case, the unambiguous provisions of Section 11-13 of the New York City Zoning Resolution ("Resolution") and Section 533(a)(1) of the New York City Charter ("Charter") have been ignored.  Appellees' briefs below failed to address the clear language of Section 11-13 of the Resolution and Section 533(a)(1) of the Charter.  Likewise, the District Court ignored the clear meaning of these provisions and instead relied on a tortured misinterpretation of the Resolution.  True to form, Appellees' brief on appeal simply restated the District Court's opinion and never addressed the clear language of the Resolution and the Charter.

Appellees rely upon the District Court's contrived and erroneous interpretation of Section 11-13 of the Resolution.  Like the District Court, Appellees misquote this section by stating that it only applies to "former public park[s]," suggesting that the City and/or the courts may determine when a park becomes a "former park."  In contrast, Section 11-13 states:

District designations indicated on zoning maps do not apply to public parks, except as set forth in Section 105-91 (Special District Designation on Public Parks).  In the event that a public park or portion thereof is sold, transferred, exchanged, or in any other manner relinquished from the control of the Commissioner of Parks and Recreation, no building permit shall be issued, nor shall any use be permitted on such former public park or portion thereof, until a zoning amendment designating a zoning district therefor has been adopted by the City Planning Commission . . . . (Emphasis added.)

Resolution, § 11-13.

When Section 13 is read in its entirety it becomes clear that the term "former public park" is not open to interpretation.  The Resolution states that once property is "sold, transferred, exchanged or in any other manner relinquished" from the Commissioner's control, no use shall be permitted on "such former public park or portion thereof" until a zoning district has been adopted for that portion of the park.  This language leaves no doubt that once the Commissioner relinquishes control over a portion of the park, that portion automatically becomes a "former public park."  As discussed in Plaintiffs-Appellants' Brief at 44-45, under Section 533(a)(1) of the Charter, the Commissioner is deemed to have relinquished control over any building built in a park for non-park uses.  Consequently, this area of the park will be, as a matter of law, a former park requiring a new zoning district designation.

A.  Appellees' Brief Gives The False Impression
That Existing Underground Utilities Make This Project Acceptable For Zoning Purposes

Appellees make the misleading statement that "in light of the numerous utilizations of the ground beneath parkland     . . . the Commissioner does not relinquish control of parkland whenever construction of a permitted project occurs."  Appellees' Brief at 26.  Section 533(a)(1) of the Charter, however, only states that the Commissioner relinquishes control when a building for non-park purposes is erected in a park ("[The Commissioner's] jurisdiction shall not extend to . . . buildings which are . . . erected in parks . . . for governmental purposes other than those of the [Parks] department").  Thus, when parkland is used (pursuant to properly obtained legislative authority) for utility lines or other purposes, the Commissioner retains control.  In contrast, if the City constructs a building in a park for non-park uses, such as the WTP, the Commissioner no longer has jurisdiction over the portion of the park containing the building, triggering the need for a zoning amendment under Section 11-13.

B. Appellees' Reliance On The City Planning Commission And City Council's Approval Of The Project Is Not Dispositive

Appellees ask the Court to rely upon the City Planning Commission's ("Commission") and the City Council's decisions that the Resolution does not apply to this project.  Appellees neglect to inform the Court, however, that the courts are ultimately charged with the responsibility of interpreting the Zoning Resolution.

In New York, a "zoning board's interpretation [in this case, the Commission's] is subject to judicial review, and the ultimate responsibility of interpreting the law is that of the court."  KMO-361 Realty Assoc. v. Davies, 204 A.D.2d 547, 611 N.Y.S.2d 660 (2d Dep't 1994).  Thus, this Court has the full authority to review the Commission's decision, and overturn it if it is irrational or unreasonable.  Id.  Without restating the argument made in Plaintiffs-Appellants' Brief at 48-52, the Commission's and the City Council's decisions on this matter were irrational and unreasonable, and must be overturned. 

The New York Court of Appeals has held that "[z]oning regulations are in derogation of the common law and must be strictly construed against the municipality."  Allen v. Adami, 39 N.Y.2d 275, 277, 347 N.E.2d 890, 892, 383 N.Y.S.2d 565, 567(1976); KMO-361 Realty Assoc., 204 A.D.2d at 548, 611 N.Y.S.2d at 661.  As illustrated above, a strict interpretation of the Resolution leaves absolutely no doubt that the Resolution (1) does indeed apply in this case, and (2) requires the City to designate a zoning district for this portion of the park.

Consequently, for the reasons set forth above and in Plaintiffs-Appellants' Brief, this Court should reverse the Order of the District Court and grant summary judgment to Plaintiffs-Appellants. 

Dated:      New York, New York
                September 26, 2000

          By:_______________________________                       

On the Brief:

         Theodore A. Keyes, Esq.
         Peter C. Trimarchi, Esq.

Page

TABLE OF AUTHORITIES............................................................................. ii

PRELIMINARY STATEMENT........................................................................ 1

POINT I. LIKE THE DISTRICT COURT, APPELLEES'
IGNORE THE PUBLIC POLICY BEHIND THE
PUBLIC TRUST DOCTRINE AND NEW YORK
STATE'S INTEREST IN VESTING THE POWER
TO MAKE DECISIONS CONCERNING PUBLIC
PARKLAND IN THE STATE LEGISLATURE.................................................. 3

POINT II. APPELLEES' BRIEF FAILS TO ADEQUATELY
ADDRESS THE CLEAR IMPORT OF THE CITY'S
ZONING REGULATIONS................................................................................ 10

A......... Appellees' Brief Gives The False
Impression That Existing Underground
Utilities Make This Project Acceptable
For Zoning Purposes..................................................... 11

B......... Appellees' Reliance On The City
Planning Commission And City
Council's Approval Of The Project
Is Not Dispositive.......................................................... 12

CONCLUSION................................................................................................... 13