High Court Blocks Filter Plant in VC Park
New York City cannot build a filtration plant occupying 23 acres of the Mosholu Golf Course in Van Cortlandt Park without the approval of the state legislature, ruled the state's highest court on Feb. 8. The decision makes any disruption of the park for the plant highly unlikely and now reopens a whole series of questions regarding where the plant should be sited, or even if it should be constructed at all.
In a unanimous decision, Chief Judge Judith Kaye of the Court of Appeals wrote that a previous case, Williams v. Gallatin, "makes clear that legislative approval is required when there is a substantial intrusion on parkland for non-park purposes, regardless of whether there has been an outright conveyance of title and regardless of whether the parkland is ultimately to be restored."
The city maintained that the park site, located just off Jerome Avenue in Norwood, did not require legislation because, after its construction, they planned to restore the golf course on top of the plant, but opponents argued that the project would forever alter the topography of the park with the new golf course rising as high as the elevated train on Jerome Avenue. And the construction period itself, they said, would deprive a generation of kids the opportunity to play in the adjacent southeast corner of the park.
Local opponents of the plant hailed the ruling at a press conference in Van Cortlandt Park on the day of the ruling. "This unanimous decision ... highlights that parks and open spaces are invaluable to the quality of life in New York City and should not be sacrificed for a minimum cost reduction on an industrial project," said Paul Sawyer, executive director of the Friends of Van Cortlandt Park, who was referring to the higher cost of building the plant on an industrial site in Westchester. The Friends was a plaintiff in the case as was Norwood Community Action, a group of local residents opposed to the plant.
Decision 'incomprehensible' to mayor
Howard Epstein, a lead attorney on the case representing the Friends and the Parks Council, said it was unlikely the mayor had any recourse within the judicial system. "I don't think that there is any merit to [an appeal or a request for reconsideration]," Epstein said. "This was a unanimous decision written by the chief justice."
Asked if reconsiderations of cases were rare, Court of Appeals spokesman Gary Spencer said, "Rare is an understatement."
The filtration saga began at least 11 years ago, when the city first unveiled a model of a plant for the Croton water system, which supplies the city with up to 10 percent of its water, at a joint meeting of community boards 7 and 8. Then, the city's preferred site was the Jerome Park Reservoir, but years of stormy meetings, hearings and protests made the reservoir site politically untenable. On Dec. 1, 1998, the city chose another Bronx site -Mosholu Golf Course.
The choice of that site united park advocates, golfers and environmentalists, community residents and elected officials against the plan. But the protests could only go so far because the city was bound by a Consent Decree ordering it to design and construct the plant according to a strict schedule. The DEP was so close to beginning the project that two large trucks with heavy equipment were already in the park at the time of the ruling testing soil from one of the fairways. (A DEP official told the Norwood News a few days later that the contractors doing the work had been asked to leave.)
What the city does now is anyone's guess. "We're in a box," conceded Charles Sturcken, the DEP's chief of staff, "and we'll have to figure it out." The city could seek legislative approval, pick another site, or ask the federal government to reconsider its order to filter.
Meanwhile, according to the Consent Decree, the city must pay fines of up to $5,000 per day for every day it delays building the plant. Karen Argenti, a veteran local activist on this issue, believes, however, that a provision in the Consent Decree called force majeure will allow the city to avoid such fines for "any event that is beyond the control of the city that prevents the timely performance of any of the obligations of the city under this consent decree." Argenti thinks that the state court ruling fits the bill. But Sturcken says that force majeure only applies to "an act of God," and that the federal government has said that it doesn't apply in this case. "It was made clear to the city in discussions with the federal government previously that this would not be applicable [in the case of park alienation legislation]," Sturcken said. "They said, 'You could have applied for this in 1999.'" According to the Consent Decree the city had up to July 31, 1999 to seek state legislative approval for the plant. In response, Argenti cited a portion of the provision that states: "In the event any legal action is brought which might delay performance of any of the milestones in this Consent Decree, the city shall exercise due diligence in seeking removal to this Court and in defending such action, including appeals."
"Why would you put that sentence in there if it didn't apply to a court case?" Argenti said.
Trying to change the EPA's mind
"The Consent Decree pushing New York City's rush to filtration can and should be reopened," the groups wrote. "Several significant legal, scientific, and administrative developments have taken place since the decision was made (in 1989, if not before) to build a filtration plant for the Croton watershed. These developments could make it unnecessary to filter Croton water." The group also issued a document laying out their reasoning for reconsidering the need for filtration.
Though a local spokeswoman for the EPA was adamant that the city still has no choice but to filter, some see a new presidential administration in Washington possibly opening a new window of opportunity. Councilwoman June Eisland is calling on the new administrator of the Environmental Protection Agency, former New Jersey governor Christine Todd Whitman, to consider issuing a filtration waiver for the Croton, which the city failed to apply for in the early 1990s. In a telephone interview, Congressman Eliot Engel promised to meet with Whitman or her top deputies after the dust settled on the transition. (Sen. Hillary Clinton said during her campaign last fall that she supported the pursuit of filtration avoidance for the Croton. And Bradley Tusk, a spokesman for Sen. Charles Schumer in New York, said the Norwood News should assume the senator had no position on filtration if he did call not back. He didn't. Another Schumer spokesman in Washington also did not get back to us.)
Legislation would be 'dead on arrival'
"It's not going to pass in the Senate," vowed State Senator Guy Velella. "I can be assured of that because it's in my district, because I will have the respect of colleagues in Albany."
"It'll never pass muster," echoed Assemblyman Jeffrey Klein who represents a neighboring district that includes the reservoir. "Any legislation like that would be dead on arrival."
At the press conference, Assemblyman Jeffrey Dinowitz reiterated that he had been promised last year by the Assembly's leadership that whether or not to bring up legislation to approve the Van Cortlandt Park site would be his call.
"I have the backing of the Speaker [Sheldon Silver] on this," Dinowitz said. "He agreed that if I don't put forth a bill, there won't be a bill."
Silver's office confirmed that lawmakers from the affected district are traditionally deferred to in such matters.
Perhaps most controversial is the possibility of the city returning to the Jerome Park Reservoir, which most Bronx opponents of the plant consider the worst possible location for the facility, as it is surrounded by residential communities and several schools. Though that site is not parkland, local officials and residents argue that any use of parks adjacent to the reservoir -such as Fort Independence Park or Harris Park -as approaches for trucks or staging areas would also require state legislation.
If the plant must be built, activists say it should be built at one of the Westchester sites, three of which are remote and industrial. The supervisors of two neighboring Westchester towns - Greenburgh and Mt. Pleasant -say they would welcome the facility on one of two sites formerly owned by Union Carbide that straddle Route 100C. Greenburgh town supervisor Paul Feiner told the Norwood News his town is still interested in the plant provided the city purchases adjacent land for the town to use as parkland. That, in addition to the new property taxes the city would be required to pay the town for the plant site, would help convince Greenburgh residents to support the idea. "I think if we could get parkland out of it, it would be doable," Feiner said.
The city had been cold to the Greenburgh option, because of the taxes and the cost of buying the land and also because of labor union pressure to keep the jobs in the city, but Sturcken counted it as one of the options the city is considering
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