Court Action Gives Filtration
Foes Hope With only nine months to go before bulldozers are scheduled to dig up Mosholu Golf Course in Van Cortlandt Park to make way for a controversial water filtration plant, the court system is giving local opponents of the project a little joy this holiday season. On Nov. 15, the federal court considering an appeal on the filtration issue by local community groups, decided that New York's top court, the Court of Appeals, was the best place to decide whether or not the city violated the law by not seeking the approval of the state legislature when deciding to site the plant in a public park. The Court of Appeals will hold a hearing on the case on Jan. 3 in Albany. Jack Lester, the lawyer for Norwood Community Action, a group of local residents suing the city, called the move to the Court of Appeals "a slam dunk." "The federal court put [the case] where it rightly belongs," said Lester, who is confident the court will rule in his clients' favor. At issue is whether or not the construction of the filtration plant constitutes alienation -a legal term meaning the use of parkland for purposes other than recreation. Alienation would require the approval of the state Senate and the Assembly. Federal judge Nina Gershon, who presided over the agreement between the city and the federal government to site and build the plant, ruled last May that state legislative approval was not parkland alienation. She agreed with the city's contention that because the plant would be built underground and the golf course restored on top of it, that use of the park would not be lessened. However, plant opponents, who are relieved that the filtration matter is now out of Gershon's hands, argue that the plant is not underground and rises 30 feet above the golf course's current grade. The project also constitutes alienation, they say, because the construction will render a section of it unusable for six years or more. With these issues in mind, a federal appeals court panel decided it would be better for a state court to handle a matter of state law after the state attorney general and the community groups requested such action. "We consider these contentions to frame a substantial issue on which the law of New York is not clear," wrote Circuit Court Judge Jon O. Newman. "... the fact that the State and the City are on opposite sides of this state law issue adds a potent reason why the issue should be resolved by the state's highest court." If the state court rules in favor of the Norwood residents and the Friends of Van Cortlandt Park, the state legislature will have the final say on the matter. That's reassuring to anti-plant activists because Assembly Speaker Sheldon Silver said he would defer to Assemblyman Jeffrey Dinowitz, a vocal opponent of the project who represents the area containing the golf course. If the legislature votes again alienation, the city's Department of Environmental Protection (DEP) will have to choose another site in the Bronx or Westchester. The DEP did not return a call request for comment by press time.
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