A Norwood News Exclusive

Attorney General:  City Needs Legislature's OK to Build Plant in Park

By JORDAN MOSS

New York City needs approval from the state legislature if it wants to build a filtration plant at the Mosholu Golf Course in Van Cortlandt Park, according to the office of the state's top lawyer, Attorney General Eliot Spitzer.

In a letter dated July 30, 1999, two Spitzer aides advised the city's Department of Environmental Protection (DEP) that "construction of the Plant at the selected site in Van Cortlandt Park, a process which will include closing of the golf course for six years, requires state legislation for the reasons we have discussed with counsel for the City beginning in January, 1999."

Gordon J. Johnson, deputy bureau chief of the Attorney General's Environmental Protection Bureau, and Norman Spiegel, the litigation section chief, went on to warn the city that it would be in violation of a deadline stipulated in the Consent Decree it signed with the federal government if it did not request a home rule message from the New York City Council to pave the way for state legislation.

"By July 31, 1999, in the event that use of the selected site for the WTP [water treatment plant] requires state legislation, the City shall request state legislation and home rule message from the City Council," reads the Decree.

But that deadline came and went without any action from the city, because officials argue that state legislation is not necessary because the project does not involve "alienation" of parkland since the facility will be built underground and the park will eventually be restored. "As we have advised you in the past," wrote Susan M. Kath, of the city's Law Department on Aug. 10 in response to the letter from the attorney general's office, "we are firmly of the opinion, consistent with long-established practice, that construction of the plant at Mosholu Golf Course, in the manner proposed by the City, does not involve alienation of parkland. Therefore, we are of the view that the project may proceed with the need for State legislation or a home rule message."

Despite the difference of opinion, one that will likely be sorted out in federal court, lawyers for park advocates fighting the plant say the attorney general's letter will aid their lawsuit which they intend to file in two to three weeks.

"I think that the attorney general of New York is saying that, without any room for interpretation, legislation from the state is required to build in the park and that's been our position all along," said Howard Epstein, an attorney with the firm Schulte, Roth and Zabel which is serving as counsel to the Friends of Van Cortlandt Park and the New York City Parks Council.

Construction of the filtration plant for the Croton water system, which supplies the city with 10 percent of its water supply, is scheduled to begin in two years. Final approval of the park site was granted by the City Council in July, despite near unanimous local opposition. Seven other sites were under consideration, four of them in Westchester.

Many community residents and park advocates believe that the disruption caused by six to 10 years of construction will destroy the area's quality of life with unrelenting noise, dust and traffic, and harm the community's health, particularly by exacerbating an already severe asthma problem. They also mock promises to restore and enhance the park since it will rise up to 35 feet above its current grade and flatten up to 23 acres of rolling topography.

It is this alteration that plant opponents believe will convince a judge that state legislation is necessary. Epstein said there are precedents to support his clients' position, including a city sanitation facility in a Brooklyn park that did not have state approval, which was eventually forced to leave after occupying the space for years.

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