Opinion
10280 Index 100240/18
11-07-2019
In re BRONX COUNCIL FOR ENVIRONMENTAL QUALITY, et al., Petitioners–Appellants, v. The CITY OF NEW YORK, et al., Respondents–Respondents.
Bronx Legal Services, Bronx (Anne Nacinovich of counsel), for appellants. Georgia M. Pestana, Acting Corporation Counsel, New York (Nwamaka Ejebe of counsel), for respondents.
Bronx Legal Services, Bronx (Anne Nacinovich of counsel), for appellants.
Georgia M. Pestana, Acting Corporation Counsel, New York (Nwamaka Ejebe of counsel), for respondents.
Richter, J.P., Webber, Gesmer, Oing, JJ.
Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about July 9, 2018, insofar as appealed from as limited by the briefs, denying the amended petition for a judgment declaring that respondent City of New York's actions in releasing a parcel of land on the Harlem River in the Bronx known as Pier 5 for nonpark use is illegal and that ceding control of public parkland to a private developer without first securing State legislative approval violates the public trust doctrine, and to enjoin respondents from proceeding with the development project without State legislative authorization, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The record demonstrates that Pier 5 was never in "continuous use as a public park or recreational area," and thus was never impliedly dedicated for such use ( Matter of 10 E. Realty, LLC v. Incorporated Vil. of Val. Stream, 49 A.D.3d 764, 767, 854 N.Y.S.2d 461 [2d Dept. 2008], revd on other grounds 12 N.Y.3d 212, 879 N.Y.S.2d 361, 907 N.E.2d 274 [2009] ). To the contrary, the parcel was used for rail and storage for decades until 2006, when it was transferred to the management and jurisdiction of respondent New York City Department of Parks and Recreation (DPR), and it remained fenced-off and closed to the general public for most of the next decade. For most of the final period, from 2014 to 2017, DPR permitted the New York State Department of Transportation to use the parcel for work and equipment storage for a highway rehabilitation project.
While DPR permitted private companies to hold circuses and carnivals at Pier 5 for a few weeks each year from 2010 to 2016 and permitted petitioner Bronx Council for Environmental Quality to use the parcel for an environmental study from June 2013 to August 2014, apparently with some access by the community for educational purposes, these uses comprised only a small fraction of the total use of the parcel (see Matter of Glick v. Harvey, 121 A.D.3d 498, 994 N.Y.S.2d 118 [1st Dept. 2014], affd 25 N.Y.3d 1175, 15 N.Y.S.3d 733, 36 N.E.3d 640 [2015] ).
The fact that Pier 5 was transferred to DPR's jurisdiction and management does not by itself evince any intention on the City's part to commit the parcel permanently to use as parkland (see Martin v. Eagle Hill Found., 111 A.D.2d 372, 373–374, 489 N.Y.S.2d 357 [2d Dept. 1985] ). Nor do the facts that the parcel's fencing bore DPR signage and that DPR and other entities at times referred to the parcel as a park compel the conclusion that Pier 5 became a park by implication (see Hotel Empls. & Rest. Empls. Union, Local 100 of New York, N.Y., & Vicinity, AFL–CIO v. City of New York Dept. of Parks & Recreation, 311 F.3d 534, 548–549 [2d Cir. 2002] ).