Vol. 13, No. 3 Feb. 10 - 23, 2000


Federal Judge Hears Filtration Lawsuits


The two lawsuits brought by community organizations to stop the city from building a filtration plant at Mosholu Golf Course in Van Cortlandt Park got a hearing in a federal court in Brooklyn last week.

Both suits -- one brought by the Friends of Van Cortlandt Park and the Parks Council, and another brought by a group of Norwood residents calling themselves Norwood Community Action -- argue that the city violated state law and an agreement it entered into with the federal government by not asking the state legislature for permission to build the facility in a park.

The proceedings centered around when and if a local government is permitted to disrupt park land without legislative approval, and the judge, Nina Gershon, ordered both sides to come up with more information on what the legal standards are for underground construction.

City attorney Inga Van Eysden, argued that the Public Trust Doctrine permits the city to build underneath parks without asking the legislature, and she cited manhole covers, sewer drains, and utility lines as examples.

Howard Epstein, a lawyer representing the Friends of Van Cortlandt Park and the Parks Council, argued with the city's assertion that the plant would be an underground facility. He described the 30-foot-high stone wall that would rise above the park's current grade and the 30- foot berm -- or hill of earth -- that would surround that wall. Epstein compared the construction to taking "Macy's department store and putting it literally in this location." Later in the hearing, he said the project was "the equivalent of a strip mine and then you put a building in the hole."

Epstein urged the judge to visit the site. "To understand the massiveness of this construction, you have to be there," he said.

Jack Lester, a lawyer for the Norwood residents, called the filtration project an "above- ground encroachment and infringement on the integrity of Van Cortlandt Park" and a "huge industrial plant right smack in the middle of Van Cortlandt Park."

Van Eysden said the plant will "not affect the use of parkland," and that the use of the golf course will not change." She also cited the $1 million improvement slated for the Saturn playground, which abuts the filtration facility in the southeast corner of the park. But Epstein and Lester stressed that the plant did not serve a park or recreational purpose and that the facility would disrupt recreational uses for six years or more during construction. And the playground, Epstein said, would be virtually unusable during that time. "Would you take your kids there?" he asked the court, pointing to its proximity to the digging and blasting the project would require.

Gershon is presiding over the case rather than a judge in state court, because she supervised the Consent Decree signed by the city last year. That document compelled the city to adhere to a series of deadlines to site, design and construct the filtration plant, which is for the treatment of the Croton water system. One of those deadlines was July 31, 1999, by which the city was required to request state legislation and a home rule message from the City Council "in the event that use of the selected site for the WTP [water treatment plant] requires state legislation." The administration, believing legislation was not required let that deadline pass without action as well as another one on Feb. 1, 2000, the day before the court hearing, by which actual state legislation was required to be obtained.

Epstein said city officials tried to suppress the opinion of the state attorney general, which was that state legislation was necessary, and that documents on file with the court support the allegation. "The city asked them not to put anything in writing, to keep the record clean, and they respected that request," Epstein said. The city also refused to accept a memorandum of law prepared by the attorney general's office, according to Epstein. (Gordon Johnson, a lawyer with the attorney general's office told the judge he believed the city was required to seek state legislation, but added that that legislation was likely to be approved.)

"The city understood all along that it had to go to the legislature [so it] suppressed [information] from the public but also elected representatives on the City Council, waiting for the opportunity to argue a loophole to a judge," Epstein said.

[The city's Department of Environmental Protection (DEP), the agency that chose the site for the plant and will oversee its construction, referred questions to Van Eysden, who the Norwood News was not able to reach by press time.]

That "loophole" is the city's contention that underground facilities are not covered by the Public Trust Doctrine. Epstein said the law does not support that view. "For the court to rule that there is a subsurface exception to the Public Trust Doctrine would deviate from the Law of New York and would open up a Pandora's box that would permit the City of New York or any other municipality to develop public parkland in a manner inconsistent with park uses, and for that reason we're confident that the court is going to grant the relief we seek," he said in an interview.

The suit brought by Epstein and his clients also argues that the project violates New York City zoning regulations. Though a special zone for parks does not exist in city law, "the law says that if the commissioner [of the Parks Department] will give up control and relinquish his authority of the park, then there has to be a zoning amendment," Epstein said. "And we think it's a fiction that the commissioner is going to maintain control over the park. Certainly for the six years of construction he'll have no control."

Van Eysden said the parks commissioner "will not be relinquishing authority."

About 30 environmental and community activists attended the hearing and some worried that the judge was concerned about the wrong issues.

"I think the dialogue should have been about what is parkland and not a dialogue about what is underground," said Karen Argenti, a long time filtration foe. "Thirty-five feet above ground is not underground by anybody's stretch of the imagination."


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