UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

	FRIENDS OF VAN CORTLANDT PARK, PARKS COUNCIL, INC., NORWOOD COMMUNITY ACTION, LINA BURGER & FAY MUIR, Plaintiffs-Appellants, STATE OF NEW YORK, Plaintiff-Intervenor-Appellant, UNITED STATES OF AMERICA, Plaintiff, BARBARA DEBUONO, M.D., As Commissioner of the New York State Department of Health, Plaintiff-Intervenor, -against- CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW YORK CITY PLANNING COMMISSION, NEW YORK CITY COUNCIL, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, RUDOLPH W. GIULIANI, JOEL A. MIELE, SR. & HENRY J. STERN, DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Defendants-Appellees. __________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
	APPELLEES’ BRIEF

PRELIMINARY STATEMENT

In a well-reasoned opinion, the District Court concluded that neither the location of a water treatment plant below finished grade in a New York City park nor its construction by the City, necessitating the closing of a small section of the park for a period of approximately five years, constitutes an alienation of parkland within the meaning and intent of New York law.  The Court thus correctly rejected appellants’ contention that the project requires the prior approval of the New York State Legislature.

In these three proceedings, consolidated for the purposes of appeal, appellants, by the terms of their notices of appeal (see, A784-85, A1666-67, A1670-71),[1] appeal from an “opinion and order” of the United States District Court for the Eastern District of New York (Gershon, DJ), dated May 12, 2000. The order denied, and dismissed, the application of appellant State of New York for relief pursuant to a certain Consent Decree and granted the City summary judgment dismissing the petitions in the remaining proceedings (A758-81).[2]  The order appealed from should be affirmed in all respects.

QUESTIONS PRESENTED

1) Whether the District Court correctly concluded that, pursuant to New York law, neither the WTP itself nor the construction project leading to its completion constitutes an alienation of parkland so as to require the approval of the New York State Legislature?

2) Whether the District Court correctly concluded that construction of the WTP does not require an amendment to the Zoning Resolution of the City of New York?

3) Whether the District Court correctly determined that the comprehensive environmental review undertaken with respect to the WTP project included the requisite “hard look” at the issues of park alienation and whether an amendment to the Zoning Resolution of the City of New York was required?

STATEMENT OF FACTS

Overview

According to the District Court, the Consent Decree in issue “resolv[ed] claims brought by the United States ... and the State of New York against the City of New York to require the City to provide filtration and disinfection treatment for its Croton Water Supply System” in accord with Federal and State statutes and regulations governing drinking water quality (A759).  The Croton Water System, one of the City’s three supply systems, provides drinking water to the City and upstate communities.  It provides an average of approximately 10 percent of the City’s average daily demand.  During droughts, it can provide up to 30 per cent of in-city demand (A99).

The Decree, the Court said, “establishes detailed ‘milestones’ that the City must satisfy in order to fulfill its obligation to plan, design, construct and operate a Water Treatment Plant (‘WTP’) at a site selected by the City after its completion of an environmental review” (A759).  The failure to meet such stipulated milestones results in significant monetary penalties (see, A872-86).  One of those milestones provides that the City, “[b]y July 31, 1999 ... shall request state legislation ... in the event that use of the selected site for the WTP [so] requires” (A845).  Such legislation, “if necessary for use of the selected site for the WTP,” must be obtained by February 1, 2000 (id.).

The current disputes arise out of the ratification by the New York City Planning Commission (“CPC”) and the New York City Council, in accord with required State and City environmental and land use review procedures, of the City’s determination to construct the WTP at an underground site at the Mosholu Golf Course in Van Cortlandt Park, Bronx, New York.  Because this project “to supply essential municipal services” (A768) will not involve a conveyance of parkland, because the WTP is to be located entirely underground and because the site will be fully restored to park use upon the completion of construction, the City concluded that State legislative approval was not required.  In these proceedings, appellants challenge that determination, contending, inter alia, that both the five year period of construction and the completed project itself constitute alienations of parkland that cannot be undertaken without the express approval of the New York State Legislature.

The proceedings

This appeal consolidates three proceedings in the Court below:

Norwood Community Action v. Department of Environmental Protection (“Norwood”)

This proceeding for injunctive relief and for review pursuant to Article 78 of the New York Civil Practice Law and Rules was commenced in the New York Supreme Court, New York County.  Petitioners (plaintiffs herein) sought an order (1) enjoining all planning, funding and construction activity “as it relates to the creation” of the WTP, (2) annulling and setting aside all “permits, authorizations or approvals” relating to the WTP, and (3) compelling compliance with all Federal, State and local statutes, rules and regulations “regarding usage and/or alienation of parkland,” including the Zoning Resolution of the City of New York (A1678; see, A1677-87).

Petitioners alleged that the WTP violates New York General City Law, section 20(2), “and a public trust that prohibits governmental use of parkland for other than park purposes, either for a period of years or permanently, without direct and specific approval of the State Legislature plainly conferred” (A1686).  Petitioners further alleged that the “approval of the site for the plant” violated section 11-13 of the New York City Zoning Resolution “which mandates a zoning amendment where a ‘public park or portion thereof is sold, transferred, exchanged, or in any way relinquished from the control of the Commissioner of Parks and Recreation’” (A1686-87).

Concluding that the proceeding “might delay performance” of the Consent Decree’s milestones, the City, pursuant to the terms of the Decree (see, A887-88), moved in the District Court to have the proceeding removed to that Court (A1674-76).  The matter was so removed without objection from the parties (see, A760).

State of New York v. City of New York

Upon the removal of the Norwood proceeding, the State of New York, a party to the original action that resulted in the Consent Decree, sought the intervention of the District Court pursuant to the dispute resolution provisions of the Decree (see, A889-90).  The State contended that “construction of the [WTP] at the selected site in Van Cortlandt Park, a process which will include the closing of the golf course for six years, requires state legislation” (A89-A90).  The Court’s intervention was sought because “[t]he City has disagreed with the State’s reading of the law and declined to seek such approval” (A87).[3]

Friends of Van Cortlandt Park v. City of New York (“Friends”)

This proceeding for injunctive relief and for review pursuant to Article 78 of the New York Civil Practice Law and Rules was commenced in the New York Supreme Court, Bronx County.  Plaintiffs-petitioners (plaintiffs herein) sought (1) a judgment annulling the decisions of CPC and the City Council authorizing the development of the WTP, and (2) an injunction prohibiting development of the WTP until (a) the enactment of authorizing legislation by the New York State Legislature and (b) the adoption of an amendment to the Zoning Resolution of the City of New York (A798-99; see, A802-30).

Plaintiffs alleged that “[b]oth the conversion into a construction site for at least five years of 28 acres of Van Cortlandt Park ... and the resulting installation of [the WTP] ... that will permanently alter the topography of the Park, constitute alienation of dedicated parkland for other than park purposes.  Pursuant to § 20(2) of the New York State General City Law and applicable law, the WTP Project cannot be undertaken without express authorization by the New York State Legislature,” which authorization the City did not obtain (A822).

Plaintiffs further alleged that such construction and the WTP itself, “all under the control of [the New York City Department of Environmental Protection],” would “effectively result in the Commissioner of Parks and Recreation relinquishing control of the Van Cortlandt Park Site.”  Therefore, “pursuant to Section 11-13 of the New York City Zoning Resolution the [site] must be zoned consistent with its proposed new use before the WTP Project can proceed” (A823).

Concluding that the proceeding “might delay per-formance” of the Consent Decree’s milestones, the City, pursuant to the terms of the Decree (see, A887-88), moved in the District Court to have the proceeding removed to that court (A795-97).  The matter was so removed without objection from the parties (see, A760).

The WTP project

The 290-million-gallon-per-day WTP is to be located under approximately 23 acres of the Mosholu Golf Course and Driving Range (the entire 13 acre driving range and 10 acres of the golf course), within the 1,146 acre Van Cortlandt Park, Bronx, New York (A108, A118).  The approximately 28 acre construction site is owned by the City of New York, and it includes a club house, the entire driving range, 15 acres of the 59 acre nine-hole Golf Course and a parking lot (id.).  While such activities, including the entire golf course,[4] will be temporarily displaced during the period of construction, the site plan includes reconstruction and improvement of the driving range, to be located on the landscaped roof of the WTP; a new club house; an improved parking lot and reconstruction of the golf course (A118, A551).

When completed, the WTP will be substantially below existing grade and wholly below finished grade.  It will have a constant finished grade elevation of 205 feet (A261, A550), which, according to the Final Environmental Impact Statement (“FEIS”), “approximately match[es] the existing grade elevation on the western side of the driving range” (A261).  That is, existing grade will be increased approximately three to ten feet along the western side of the site and approximately 30 feet at the southeastern corner (A550).  This change will require the construction of a 300 foot long retaining wall up to 20 feet high in the southeastern corner, reducing to zero at each end (A550).  From the end of this wall, a berm with a 35 foot maximum height will be constructed along the balance of the eastern side of the site bordering Jerome Avenue (A550-51).  In this regard, the FEIS noted (A112): “It is likely that the original site topography has been previously modified through excavation and backfill for landscaping of the golf course.”

In order to accommodate the existing slope of the site, the facades of the building housing the WTP will be constructed as bermed and landscaped embankments (A261, A550).  Air intakes for the WTP will be located adjacent to the driving range through louvers concealed in the berms around the perimeter of the building.  Exhaust stacks will be integrated into the supports for netting on both sides of the driving range and into other driving range structures (id.).

Upon completion of the project, all facilities will be reconstructed, and there will be no loss either of open space acreage or of existing functions.  The pre-construction open space ratio of 26 acres per 1000 residents will be restored.  As reviewed in the FEIS, the park open space reduction, during construction, to 23 acres per 1000 residents, will not, as conceded by Friends in the District Court (see, A766), represent a significant impact, as it remains well above the City’s recommended planning goal of 2.5 acres per 1000 residents (A552).

Environmental review

Insofar as is relevant to the environmental review issue on appeal raised by Friends, the environmental and land use review procedures conducted by the City pursuant to State and City statutes and regulations included the following with respect to the issue of park alienation:

CPC’s awareness of the park alienation issue is evident from a reading of its detailed report approving the project.  It noted, first, the opposition of the affected community boards, at least one of which explicitly raised the issue, as quoted in CPC’s report (A1180): “‘the applicant has refused to provide relevant information requested by the board, including material respecting parkland alienation.’”  The report further noted that at CPC’s public hearing, some elected officials “stated their opposition to building in Van Cortlandt Park, designated parkland, without legislative approval” (A1183).  Additionally, the dissenting opinion of a CPC member explicitly made the issue one basis for his dissent, including quoting from “a letter received from the law firm representing the ‘Friends of Van Cortlandt Park’” (A1196-97; see, A727-29).

Upon its review, CPC explicitly rejected the argument that the WTP project constituted park alienation (A1190):

“The Commission notes that there is precedent for construction of underground city facilities in parks, including the valve chamber for the third water tunnel, also in Van Cortlandt Park, and the combined sewer overflow facility which is currently under construction in Flushing Meadows-Corona Park and which was approved by the Commission and the City Council in 1993 ....  As proposed for this site, those sites have been or will be returned to parks use upon construction completion.”

The City Council, too, was fully cognizant of the issue.  The FEIS, reviewed by the Council prior to its approval of the project, addressed the alienation issue in its response to comments on the draft EIS (see, A547).  Thus, the FEIS provides, inter alia (Vol. E, Response to Comments on the Draft EIS, at 84):

“The water treatment plant proposed for construction at the Mosholu golf course site will be located underground and will not interfere with the park use of the property.  Construction will be only a temporary disruption of park use.  The Mosholu golf course and driving range will be reconstructed at the site.”

In addition, the City Council received a letter signed by 32 members of the State Assembly that unequivocally concluded that “the approval of the State Legislature is required before construction can commence” (A737; see, A737-39).  A letter from the City Department of Environmental Protection (“DEP”) countered the argument that the WTP would constitute an alienation of parkland.  DEP, the letter said, “has committed to a comprehensive set of mitigations that will not simply restore the park to what it was, but will actually enhance its value as a recreational resource not only at the driving range but in other areas of the park as well” (A1204).

Finally, the issue of park alienation was explored and debated at a hearing of the Council’s Subcommittee on Landmarks, Siting and Maritime Uses.  See, A1289-90; A1342-44 (Council Member DiBrienza:  “Parks Commissioner ... how can you possibly present this project as not being alienation of parkland?  You will tear up the park and the golf course for virtually 10 years and turn it in part into an industrial complex” [A1342]); A1370 (on behalf of State Senator Schneiderman:  “[I]t is debatable that [the] City has the authority to build a filtration plant on parkland without enacting alienation legislation.”); A1374-76 (on behalf of State Assemblyman Dinowitz:  “The State Legislature’s approval is required before construction can proceed” [A1374]); A1381; A1414-16 (Friend’s counsel).

OPINION BELOW

Upon a comprehensive review of the facts and the relevant New York law, the District Court categorically rejected appellants’ arguments.

First, interpreting New York law, the Court concluded that “underground use of parkland may be approved by the City without the need for ratification by the State Legislature” (A769).  The Court provided two reasons:  (1) “[T]he City will not surrender any of its land to another entity ....  The land will remain in the City’s ownership, possession and control during and after construction, so there will be no transfer of an interest in land to another entity” (A768, A771); (2) “[T]he public will have undiminished use of the surface of the park as soon as construction of the WTP and landscape restoration is completed....  [T]he park will be restored to its existing use as a golf driving range, [and] the golf course and associated structures will be restored or rebuilt” (A768, A768-69).  In this regard, the Court noted that it was “immaterial” that changes to the existing grade will occur in some areas.  “[N]o authority,” the Court said, “requires a municipality to seek State legislative approval to make changes to the gradient of parkland” (A769).

The Court next determined that State legislative approval is not “a precondition to the temporary disruption of parkland necessarily occasioned by the construction of a project that is properly undertaken without specific legislation” (A769).  The Court said (A773):

“The temporary disruption of park-land, even for the relatively lengthy period to be involved here, for construction of an otherwise permissible public project is not prohibited by the doctrine against alienation of parkland where the temporary disruption is not a subterfuge for a diversion of parkland for non-park use.  Interference with the public use of parkland will be limited to the time necessary for construction of the WTP and the restoration of the surface.  Moreover, even during the height of construction, large areas of parkland and other open space will remain, with all the rest of Van Cortlandt Park and other local areas of greenery available for use by residents and the general public.  And the City Council, in approving the project, directed that approximately $20 million be transferred to the Parks Depart-ment to ameliorate the effects of the construction and to preserve, restore and improve the site of the project, its immediate vicinity, and Van Cortlandt Park generally.”

The Court then rejected the argument of Friends that “an amendment of the City Zoning Resolution is required for construction and operation of the WTP” (A775).  The Court said (A775-76):

“The WTP does not create a ‘former public park or portion thereof’ that would give rise to the need for a zoning amendment.  When the project is completed, the area of parkland available for public use will remain substantially the same as it is now, and no portion of parkland will be placed beyond the control of the Parks Commissioner during or after construction of the WTP ....

“Moreover, the City Planning Commission, the agency responsible for all zoning matters including amendments, was aware of Friends’ argument, which was made before it, and did not deem a zoning amendment to be necessary.  The City Council approved the Planning Commission decision....  There is no basis under the City Zoning Resolution for rejecting their decision, made after a full airing of the issues raised here, that the WTP should be built at the site selected.”

Finally, regarding Friends’ argument that the City failed to take a “hard look” at the issue of park alienation, the Court “decline[d] to invalidate the approval process for failure to set forth the views of others whom [the Court] ha[s] concluded were mistaken” (A776).  Moreover, the Court said, “the responsible City entities ... were cognizant of the arguments that legislative approval ... [was] necessary” (id.)

POINT I

THE DISTRICT COURT CORRECTLY CONCLUDED THAT, PURSUANT TO NEW YORK LAW, NEITHER THE WTP ITSELF NOR THE CONSTRUCTION PROJECT LEADING TO ITS COMPLETION CONSTITUTES AN ALIENATION OF PARKLAND SO AS TO REQUIRE THE APPROVAL OF THE NEW YORK STATE LEGISLATURE.

Appellants’ analysis, whereby they seek to have this Court look first at the period of construction of the WTP, distorts the applicable legal principles, leading to the incongruous result that an appropriate utilization of park property may be precluded because the necessary construction is determined to constitute an alienation.  The District Court recognized that the law does not so provide.  Rather, if a completed project is not an alienation of parkland, then the construction process cannot be so considered.

Thus, in 795 Fifth Avenue Corporation v. City of New York, 15 NY2d 221 (1965), the Court rejected a challenge to the City’s “proposal to construct ... a cafe and restaurant in the southeast corner of Central Park.”  15 NY2d at 224.  While such a project would presumably entail a lengthy construction process that would temporarily close a portion of the City’s premier park, the Court nonetheless concluded that the plaintiffs “did not establish the illegality of the project.”  15 NY2d at 225.  In the instant case, the District Court, correctly analyzing and applying New York law, appropriately concluded that the WTP itself does not constitute an alienation of parkland such as to require prior State legislative approval.

First, the WTP project does not involve alienation of parkland in the traditional sense of a conveyance to another entity, public or private.  Throughout the construction process and upon completion of the WTP, the site indisputably will remain in the City’s ownership, possession and control.  As found by the District Court, “the City will not surrender any of its land to another entity” (A768).

Cf., e.g., Miller v. City of New York, 15 NY2d 34 (1964)(absent State legislative approval, City may not lease parkland to a private business corporation); Williams v. Gallatin, 229 NY 248 (1920)(same); Grayson v. Town of Huntington, 160 AD2d 835 (2d Dept.), leave to appeal denied, 76 NY2d 714 (1990)(legislative approval required for conveyance of parkland to private developer for construction of low-income housing); Matter of Ellington Construction Corp. v. Zoning Board of Appeals, 152 AD2d 365, 377-79 (2d Dept. 1989), aff’d on other grounds, 77 NY2d 114 (1990)(State legislative approval required for village to convey dedicated parkland to a private developer); Aldrich v. City of New York, 208 Misc 930 (Sup. Ct. Queens Co. 1955), aff’d, 2 AD2d 760 (2d Dept. 1956)(legislative authority required for sale of City parkland to private purchaser); American Dock Company v. City of New York, 174 Misc 813 (Sup. Ct. NY Co. 1940), aff’d, 261 App Div 1063 (1st Dept.), aff’d, 286 NY 658 (1941)(specific legislative authority required before City may lease or license parkland for exclusively private business purposes); Tompkins v. Pallas, 47 Misc 309 (Sup. Ct. NY Co. 1905)(space on fence on park property surrounding construction site may not be leased to private advertising firm).

Second, the WTP will not entail an alienation of parkland because, with the exception of air intakes and exhaust stacks to be incorporated into park structures and landscaping, the WTP will be located entirely underground.  Moreover, upon completion of construction, parkland will be fully restored and enhanced, and, as found by the District Court, “the area available for public use for recreational purposes after the project is completed will remain undiminished” (A769).

Applying relevant principles developed in New York case law, the Court in Wigand v. City of New York, NYLJ, 9/25/67, at 21, col. 5 (Sup. Ct. Richmond Co.)(n.o.r.) (see, A536), rejected a challenge to the construction of two water storage tanks to be located under public parkland on Staten Island.  As correctly analyzed by the District Court, that opinion is fully supportive of, and authority for, the City’s contention that if construction under parkland does not, upon completion, interfere with the use of a park for park purposes, then no alienation has occurred.

Unequivocally dismissing the plaintiffs’ argument that the water tanks were not compatible with public park purposes, the Court in Wigand noted that they would be underground and that “[t]rees, shrubs and grass w[ould] be replanted where required, to the end that the landscape w[ould] be restored with beautification greater than that which originally existed.”  In addition, a building housing the control mechanism was to be built into an existing slope and “virtually hidden by surrounding landscaping.”  The roof deck of that building would “serve as a patio with benches for the public.”

Appellants’ elaborate attempts to distinguish or limit Wigand are misleading and unavailing.  Contrary to the State’s argument, the Court’s conclusion in Wigand did not rest on “the limited authority granted the City to use parkland for water supply purposes with only state regulatory approval” (State’s Br., at 24).  Moreover, the Court did not, as argued by Friends, “fail[] to explicitly explain the basis for the City’s authority” (Friends’ Br., at 38).  Rather, the Court’s analysis and holding are immediately relevant to the issues herein.

The plaintiffs in Wigand referenced to State legislative acts that established the public park in issue in the action.  They argued that locating the water tanks in the park would result in such lands “not being used for public park purposes in perpetuity,” as mandated by the legislation.  In such context, the Court affirmatively answered the following question:  “Is the utilization of the land for the installation of the underground water storage tanks ... compatible with public park purposes?”  Further highlighting the relevance of the Wigand reasoning to the instant case, the Court therein, as did the District Court herein (see, A772; see, supra, at 17-18), explicitly distinguished cases in which the courts had prevented “encroachment[s] upon the use of park lands and ... diminu-tion[s] of the use of the said lands.”  The District Court herein correctly relied on Wigand in concluding that, in the instant case, “no alienation of parkland will occur” (A771).[5]

Cases relied upon by appellants are patently distinguishable inasmuch as they involved prohibitions, without legislative approval, of above ground uses of dedicated parkland that were inconsistent with park purposes.  See, e.g., Matter of Ackerman v. Steisel, 104 AD2d 940 (2d Dept. 1984), aff’d on opinion below, 66 NY2d 833 (1985)(utilization of parkland for temporary structures for the storage of vehicles and snow removal equipment); Stephenson v. County of Monroe, 43 AD2d 897 (4th Dept. 1974)(disposal of refuse in a public park); Matter of Central Parkway, 140 Misc 727 (Sup. Ct. Schenectady Co. 1931) (appropriating parkland for streets and public highways).

As correctly determined by the District Court, the change to existing grade that “will occur in some areas to accommodate the plant” (A769) does not alter the conclusion that the WTP does not constitute an alienation of parkland.  The fact is that, as noted by the Court, “the public will have undiminished use of the surface of the park as soon as construction of the WTP and landscape restoration is completed” (A768).  Every acre that is parkland prior to the project will be parkland upon the completion of the project.  “[N]o authority,” the Court correctly said, “requires a municipality to seek State legislative approval to make changes to the gradient of parkland; in fact, the Mosholu Golf Course and driving range were created in approximately 1914 by altering the natural landscape” (A769).[6]

With respect to the historical “record” relied upon by appellants, the District Court, upon the evidence adduced, stated that “[i]t is not disputed that underneath City parkland are many non-park facilities that benefit the City generally and do not serve just the parkland above, including water tunnels, sewer facilities and public utility lines” (A773-74).  As noted by the Court in a long footnote (A774-75), the State argued that “legislative approval has often been obtained for infrastructure projects” (A774).  The City, on the other hand, submitted evidence that numerous structures under parkland were accomplished without legislative approval (A751-57).[7]  The Court reviewed the examples submitted by the State (see, State’s Br., at 33-36) and determined that they were distinguishable (A774n.5).  The Court said (A774n.5-75):

“The compilation of statutes by the [Attorney General] and the private plaintiffs is more striking for the paucity of State legislation relating either to underground use of parkland in New York City for City-owned infrastructure or to temporary interference with parkland for construction of projects under parkland to supply essential services to the residents of the City.  The historical record of legislative enactments, to the extent it has been presented to the court and is argued to be a reliable reflection of legal requirements, does not support the [Attorney General’s] position.”

We commend to this Court, the District Court’s conclusion that “[i]f anything, the historical record supports the view that, despite the well-established doctrine against alienation of parkland, no State legislative approval is required for the WTP” (A775n.5).  However, even if appellants unearth an example or two of legislative approval sought and obtained for a project similar to the WTP, such would be no more dispositive of the issue to be determined herein than is the opinion of 32 State legislators that the WTP requires legislative approval (see, A737-39).  The fact is that, as reviewed herein, New York law, including the most closely analogous New York judicial opinion (Wigand v. City of New York, supra), leads to the opposite conclusion.[8]

With respect to the additional alienation issue raised by appellants, the District Court correctly concluded that legislative approval is not “a precondition to the temporary disruption of parkland necessarily occasioned by the construc-tion of a project that is properly undertaken without specific legislation” (A769).  As noted, the contrary conclusion would lead to the result that an otherwise permitted use might be precluded because of the construction process involved.

Presumably, the construction of a cafe and restaurant in a corner Central Park required the temporary dislocation of a small portion of the park during the construction phase.  See 795-Fifth Avenue Corporation v. City of New York, supra, 15 NY2d 221.  So, too, for the projected 30 month construction period for the underground water storage tanks in issue in Wigand v. City of New York, supra.  See Wetter v. Moses, 86 NYS2d 110, 111, 112 (Sup. Ct. NY Co. 1941)(n.o.r.), aff’d, 265 App Div 993 (1st Dept. 1943)(Upon the City’s donation of “certain property in Battery Park for the proposed Brooklyn-Battery Tunnel,” the decision of the Park Commissioner to close the entire park for safety reasons during construction was “a proper exercise of administrative power required to be taken in the public interest.”).

In the instant case, as correctly determined by the District Court, the temporary disruption caused by the construction of the WTP “is not a subterfuge for a diversion of parkland for non-park use” (A773).  The construction period, albeit lengthy, is limited in time, and will conclude with a complete restoration of parkland.  Additionally, even during construction, as noted by the District Court, “large areas of parkland and other open space will remain, with all of the rest of Van Cortlandt Park and other local areas of greenery available for use by residents and the general public” (id.).

Finally, Friends’ argument that the provisions of the Consent Decree constitute an admission by the City that legislative approval is required in the instant case (Friends’ Br., at 42-43) is a perverse reading of the Decree’s language.  The Decree requires the City to obtain State legislative approval only if such is “necessary for the use of the selected site for the WTP” (A845).  The City has consistently maintained that legislative consent for the WTP at the Mosholu Golf Course is not required and that, therefore, milestones 14 and 15 of the Decree have not been triggered (see, A561, A575-76).

Upon the facts and the law, the conclusion of the District Court was correct.  The law of New York “relating to alienation of parkland does not require approval by the State Legislature of every City infrastructure project underneath parkland” (A774-75).  State legislative approval is not required for the WTP project, “an underground project to meet essential municipal needs” (A771)[9] and “one which will not diminish the parkland available for public use when construction is completed" (A775).

POINT II

THE DISTRICT COURT CORRECTLY CONCLUDED THAT CONSTRUCTION OF THE WTP DOES NOT REQUIRE AN AMENDMENT TO THE ZONONG RESOLUTION OF THE CITY OF NEW YORK

Friends’ argument that the WTP may not be constructed without an amendment to the Zoning Resolution of the City of New York, a variation on the theme of park alienation, was correctly rejected by the District Court.  The argument fails because, as determined by that Court, the WTP does not require the City Commissioner of Parks and Recreation to relinquish control, in any manner, of any portion of Van Cortlandt Park.

Contrary to Friends’ tortured interpretation of sec-tion 11-13 of the Zoning Resolution, the clear import of the section is to require an amendment to the Resolution when a park becomes something other than a park, i.e., when the Commissioner’s relinquishment of control results in a “former public park.”  While “[d]istrict designations included on zoning maps do not apply to public parks,” they do apply to “former public parks,” and thus a zoning amendment designating a zoning district is required where such district did not previously exist.  As the District Court concluded, upon essentially the same reasoning by which it determined that no park alienation will occur, “[t]he WTP does not create a ‘former public park or portion thereof’ that would give rise to the need for a zoning amendment” (A775).

The District Court stated, simply and correctly, “no portion of parkland will be placed beyond the control of the Parks Commissioner during or after construction of the WTP” (id.).  Particularly in light of the numerous utilizations of the ground beneath parkland (see, A751-57), the Commissioner does not relinquish control of parkland whenever construction of a permitted project occurs.  A different conclusion cannot reasonably be determined to be within the contemplation of the Zoning Resolution.  Further, as fully reviewed herein, not a single acre of Van Cortlandt Park will be lost to non-park use following construction of the WTP.  The entire construction site, including the golf course and driving range, will be fully restored to public use.  Indeed, the City Council’s approval of the project was predicated upon the allocation of millions of dollars to the Parks Department for the explicit purpose of restoring and enhancing the park (A1210-11).

Additionally, as the District Court noted, both CPC and the City Council, the agencies responsible for land use matters in the City (see New York City Charter, § 197-c), both rejected the argument that the project required an amendment to the Zoning Resolution.  The issue was raised during the environmental/land use review process, and it was addressed in the Response to Comments section of the FEIS.  Thus, that document provides, inter alia (Vol. E, Response to Comments on the Draft EIS, at 96, 97):

“The Mosholu golf course will remain parkland under the control of the Commissioner of the [NYC Department of Parks and Recreation].  Therefore, it is not necessary to amend the New York City Zoning Resolution.”

“Since the Mosholu Golf Course is situated within a mapped City park ... the New York City Zoning Resolution does not apply at this site.  Therefore, there are no siting restraints posed by zoning patterns.”

Also, Friends’ counsel, in a letter to CPC, explicitly contended that the project required an amendment to the Zoning Resolution (A728).  The issue having thus been presented and considered, CPC concluded (A1186):  “As the site is located within a park, the regulations of the Zoning Resolution are not applicable.”  The City Council approved CPC’s decision.  “There is no basis,” the District Court correctly concluded, “for rejecting their decision, made after a full airing of the issues raised here, that the WTP should be built at the site selected” (A776).

POINT III

THE DISTRICT COURT CORRECTLY DETERMINED THAT THE COMPREHENSIVE ENVIRONMENTAL REVIEW UNDERTAKEN WITH RESPECT TO THE WTP PROJECT INCLUDED THE REQUISITE “HARD LOOK” AT THE ISSUES OF PARK ALIENATION AND WHETHER AN AMENDMENT TO THE ZONING RESOLUTION WAS REQUIRED.

Friends’ argument that the “City’s review process was completed without there having been a legally sufficient assessment of the need for State legislative approval” (Friends’ Br., at 52) is a non-issue.  That is, as correctly determined by the District Court (A776), if the WTP project does not constitute park alienation within the meaning and intent of New York law, the approval process may not be invalidated for failing to include a study of the issue.

That said, however, the record clearly supports the District Court’s further conclusion (A776-77) that the issue was adequately presented to the decision making bodies, CPC and the City Council, and that they took the requisite “hard look” (Akpan v. Koch, 75 NY2d 561, 570 [1990]) at the issue.  As fully reviewed in the Statement of Facts (supra, at 10-13), the conclusion is inescapable that the agencies gave “due consideration” (Akpan v. Koch, id., 75 NY2d at 571) to the issue.  It follows that their actions in approving the WTP project “cannot be characterized as arbitrary and capricious or an abuse of discretion” (id., 75 NY2d at 574).[10]

CONCLUSION

THE ORDER APPEALED FROM SHOULD BE AFFIRMED IN ALL RESPECTS, WITH COSTS.

Dated:    New York, New York
              September 19, 2000

                        Respectfully submitted,

                        MICHAEL D. HESS,
                               Corporation Counsel of the
                           City of New York,
                                            Attorney for Defendants-Appellees 

                                                         By:
                                                               RONALD E. STERNBERG (RS2242)

LEONARD KOERNER,
RONALD E. STERNBERG,
INGA VAN EYSDEN,
                           of Counsel.