In the Matter of Senator Tony Avella, et al., Respondents,v.City of New York, et al., Respondents, Queens Development Group, LLC, et al., Appellants.BriefN.Y.April 25, 2017To be Argued by: CAITLIN HALLIGAN (Time Requested: 30 Minutes) APL 2015-00298 New York County Clerk’s Index No. 100161/14 Court of Appeals of the State of New York SENATOR TONY AVELLA, THE CITY CLUB OF NEW YORK, NEW YORK CITY PARK ADVOCATES, QUEENS CIVIC CONGRESS INC., BONO SAWDUST SUPPLY CO. INC., LEGACY WIRELESS INC., MORENA’S BOUTIQUE CORP., NEW YORK 128 REALTY CORP., SIJ INC., ST. JOHN ENTERPRISES INC., JOSEPH ARDIZZONE, ALFREDO CENTOLA, PAUL GRAZIANO, BENJAMIN M. HABER, MARTY KIRCHNER, NATALIA PERALTA and JOSE TORRES, Petitioners-Plaintiffs-Respondents, For a Judgment Pursuant to CPLR Art. 78 and General Municipal Law 51 and for a Declaration Pursuant to CPLR 3001, - against - (For Continuation of Caption See Inside Cover) BRIEF FOR RESPONDENTS-DEFENDANTS-APPELLANTS SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036 Tel.: (212) 735-3000 Fax: (212) 735-2000 GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, New York 10166 Tel.: (212) 351-3909 Fax: (212) 351-6209 Attorneys for Respondents-Defendants-Appellants Queens Development Group, LLC and Queens Ballpark Company, L.L.C. (For Continuation of Appearances See Inside Cover) Dated: April 8, 2016 CITY OF NEW YORK, BILL DE BLASIO, as Mayor of the City of New York, CITY COUNCIL OF THE CITY OF NEW YORK, NEW YORK CITY PLANNING COMMISSION, LIAM KAVANAGH, as Acting Commissioner, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION and KYLE KIMBALL, as President of New York City Economic Development Corporation and Chair of the Board, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, Respondents-Defendants-Respondents, QUEENS DEVELOPMENT GROUP, LLC, RELATED WILLETS, LLC, STERLING WILLETS LLC and QUEENS BALLPARK COMPANY, L.L.C., Respondents-Defendants-Appellants. FOX ROTHSCHILD LLP Attorneys for Respondents-Defendants- Appellants Related Willets, LLC and Sterling Willets LLC 100 Park Avenue, Suite 1500 New York, New York 10017 Tel.: (212) 878-7900 Fax: (212) 692-0940 DISCLOSURE STATEMENT 1. Pursuant to 22 NYCRR §§ 500.1(f), 500.22(b)(5), Appellant Sterling Willets LLC states that it is a limited liability company, that it has no corporate parents, its subsidiary is QDG URA Corporation, and that it is affiliated with and is a member of Appellant Queens Development Group, LLC. 2. Appellant Related Willets, LLC states that it is a limited liability company, that its corporate parent is Related Retail, L.P., its subsidiary is QDG URA Corporation, and that it is affiliated with and is a member of Appellant Queens Development Group, LLC. 3. Appellant Queens Development Group, LLC states that it is a joint venture and limited liability company, that it has no corporate parent, its subsidiary is QDG Retail Partners, LLC, and that it is affiliated with Appellants Sterling Willets LLC and Related Willets, LLC, which are the members of the joint venture. 4. Appellant Queens Ballpark Company, L.L.C. states that it is a limited liability company, that its sole member is BA Baseball Company, L.L.C., and that it has no subsidiaries or affiliates. i TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................... 1 STANDARD OF REVIEW ....................................................................................... 7 ISSUE PRESENTED ................................................................................................. 7 STATEMENT OF JURISDICTION.......................................................................... 8 STATEMENT OF THE CASE .................................................................................. 9 I. BACKGROUND ............................................................................................. 9 A. Willets Point .......................................................................................... 9 B. Willets West ........................................................................................ 12 C. The City Produces a Plan to Revitalize and Transform Willets Point ..................................................................................................... 15 D. QDG Creates the Only Viable Proposal to Develop Willets Point and the Surrounding Area .......................................................... 16 E. QDG and the City Secure All Necessary Approvals for the Plan ....... 21 II. PROCEDURAL HISTORY .......................................................................... 23 A. State Supreme Court Dismisses the Complaint .................................. 23 B. The Appellate Division Erroneously Reverses Supreme Court .......... 25 ARGUMENT ........................................................................................................... 26 I. Text, Structure, and Precedent Preclude Rewriting Section 18-118 to Narrow the Purposes for Which Willets West Can Be Used. ....................... 30 A. The Plain Language of Section 18-118 Authorizes Use of Willets West for Any One of the Broad Purposes Enumerated in 118(b). ............................................................................................. 30 ii B. The Structure of Section 18-118 Confirms that the City Can Permit A Wide Range of Uses on the Covered Property, Including Willets West. ....................................................................... 36 C. The Legislature Clearly Knows How to Restrict the Uses of Alienated Parkland, But Chose Not to Do So Here. ........................... 38 II. The Willets West Development Falls Squarely Within Section 18- 118(b)’s Enumerated Purposes. ..................................................................... 40 III. The Remaining Arguments Advanced By Respondents Below Are Meritless......................................................................................................... 43 CONCLUSION ........................................................................................................ 46 iii TABLE OF AUTHORITIES Page(s) Cases: Avella v. City of New York, 131 A.D.3d 77 (1st Dep’t 2015) .............................................................passim Avella v. City of New York, No. 100161/14, slip op. (Sup. Ct. N.Y. County Aug. 15, 2014) .......................................... 4, 24, 41, 45 Cahill v. Rosa, 89 N.Y.2d 14 (1996) ...................................................................................... 34 City of N.Y. v. Stringfellow’s of N.Y., Ltd., 253 A.D.2d 110 (1st Dep’t 1999) .................................................................. 45 Commonwealth of the N. Mariana Islands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55 (2013) ...................................................................................... 32 Concrete Applied Techs. Corp. v. Cty. of Erie, 130 A.D.3d 1578 (4th Dep’t 2015) ............................................................... 32 CSX Transp., Inc. v. Alabama Dep’t of Revenue, 562 U.S. 277 (2011)....................................................................................... 33 DiMarino v. Maher, 76 A.D.3d 653 (2d Dep’t 2010) ..................................................................... 32 Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 (2001) .................................................................... 3, 26, 30, 43 Gooch v. United States, 297 U.S. 124 (1936)....................................................................................... 33 Grayson v. Town of Huntington, 160 A.D.2d 835 (2d Dep’t 1990) ................................................................... 42 Hunt v. Bankers & Shippers Ins. Co. of N.Y., 50 N.Y.2d 938 (1980) ...................................................................................... 7 Jones v. Bill, 10 N.Y.3d 550 (2008) ................................................................................ 7, 44 iv Kaufmann’s Carousel, Inc. v. City of Syracuse Indus. Dev. Agency, 301 A.D.2d 292 (4th Dep’t 2002)............................................................ 40-41 Kuntz v. Castro, 5 A.D.3d 1088 (4th Dep’t 2004).................................................................... 42 Leader v. Maroney Ponzini & Spencer, 97 N.Y.2d 95 (2001) ................................................................................ 32, 35 Lederer v. Wise Shoe Co., 276 N.Y. 459 (1938) ...................................................................................... 32 People v. Cintron, 13 Misc. 3d 833 (Sup. Ct. Bronx County 2006), aff’d, 46 A.D.3d 353 (2007), aff’d sub nom. People v. Knox, 12 N.Y.3d 60 (2009) ............... 45 People v. English, 242 A.D.2d 940 (4th Dep’t 1997).................................................................. 44 People v. Wragg, 26 N.Y.3d 403 (2015) .................................................................................... 32 Rivers v. Sauter, 26 N.Y.2d 260 (1970) .................................................................................... 44 Rocovich v. Consol. Edison Co., 78 N.Y.2d 509 (1991) .................................................................................... 36 Samuelsen v. New York City Transit Auth., 101 A.D.3d 537 (1st Dep’t 2012) .................................................................. 28 Save Coney Island, Inc. v. City of New York, 27 Misc. 3d 1221(A) (Sup. Ct. N.Y. County 2010) ...................................... 41 Squadrito v. Griebsch, 1 N.Y.2d 471 (1956) ...................................................................................... 45 U.S. Power Squadrons v. State Human Rights Appeal Bd., 59 N.Y.2d 401 (1983) .............................................................................. 34-35 United States v. Turkette, 452 U.S. 576 (1981)....................................................................................... 32 Weingarten v. Board of Trustees of N.Y. City Teachers’ Ret. Sys., 98 N.Y.2d 575 (2002) ...................................................................................... 7 v William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470 (2013) ................................................................................ 5, 28 Williams v. Gallatin, 229 N.Y. 248 (1920) .................................................................................. 3, 13 Zaldin v. Concord Hotel, 48 N.Y.2d 107 (1979) ................................................................................ 5, 44 Statutes & Other Authorities: N.Y. Const. art. VI, § 3(a) .......................................................................................... 7 N.Y. Const. art. VIII, § 1 ......................................................................................... 46 2005 N.Y. Laws 2923 (ch. 238 § 2(a)) ................................................................ 6, 39 2005 N.Y. Laws 2923 (ch. 238 § 2(b)) .................................................................... 39 2005 N.Y. Laws 2923 (ch. 238 § 2(c)) .................................................................... 39 2005 N.Y. Laws 2923 (ch. 238 § 2(d)) .................................................................... 39 2005 N.Y. Laws 2923 (ch. 238 § 6) ......................................................................... 39 Admin. Code § 18-118 ......................................................................................passim Admin. Code § 18-118(a) .................................................................................passim Admin. Code § 18-118(b) .................................................................................passim Admin. Code § 18-118(b)(1) ............................................................................passim Admin. Code § 18-118(b)(2) ................................................................. 26, 27, 36, 37 Admin. Code § 18-118(c) .................................................................................passim Admin. Code § 18-118(c)(1) .................................................................................... 13 Admin. Code § 18-118(c)(2) .................................................................................... 13 Admin. Code § 18-118(d) ........................................................................................ 27 Admin. Code § 18-118(e) ........................................................................................ 27 CPLR § 5501(b) ......................................................................................................... 7 CPLR § 5602(a)(1)(i) ................................................................................................. 8 N.Y. Charter § 197-C ............................................................................................... 21 vi N.Y. Charter § 197-D ............................................................................................... 21 N.Y. Charter § 200 ................................................................................................... 21 N.Y. Charter § 201 ................................................................................................... 21 N.Y. Envtl. Conserv. Law §§ 27-1401-1437 ........................................................... 20 N.Y. Stat. Law § 94 cmt........................................................................................... 28 Arthur Karger, The Powers of the New York Court of Appeals § 13.1 (rev. 3d ed. 2005) ............................................................................................. 7 Appellants Queens Development Group, LLC (“QDG”); Related Willets, LLC; Sterling Willets LLC and Queens Ballpark Company, L.L.C. (“QBC”) (collectively “Appellants”), through their undersigned attorneys, submit this Memorandum of Law in support of their appeal from the July 2, 2015 Decision and Order of the Appellate Division, First Department (the “Appellate Division”) reversing the August 15, 2014 Decision and Order of Supreme Court, New York County (Mendez, J.) (the “Supreme Court”) granting Appellants’ motion to dismiss the Amended Verified Petition and Complaint (the “Complaint”). PRELIMINARY STATEMENT Willets Point is a waste repository and junkyard. It has languished for close to a century, plagued by severe and continuous environmental contamination that prevents it from being integrated into the flourishing neighboring communities of Flushing and Corona. From a city ash dump, to a home for heavy industrial plants, and in most recent decades, automobile repair and chop-shops, each successive user has polluted the land, contributing its wastes to the toxic ground. Adding to this almost perfect environmental storm, Willets Point lacks even the most basic infrastructure - streets, sewers, and storm drainage do not exist there. Willets Point’s waste flows unfiltered into the Flushing River and from there into Flushing Bay. Not surprisingly, numerous clean-up efforts over the years have failed. Not even construction of Shea Stadium, and then Citi Field, adjacent to 2 Willets Point, have provided the spark necessary to reclaim this potentially vital area. In 2011, New York City (the “City”) and Appellants reached consensus on a $3 billion, decades-in-the-making development plan (the “Willets Point Plan” or “Plan”) that will finally revitalize Willets Point. The Plan is scheduled in two phases-Phase 1A and Phase 1B. First, in Phase 1A, Appellants will remediate the contaminated land in Willets Point, which is immediately to the east of the Citi Field baseball stadium, so that it is safe for mixed-family housing. They will also develop a retail and entertainment center in Willets West, which sits on the west side of the Citi Field stadium and serves as its parking lot. This center - slated to include retail shops, restaurants and food courts, public spaces, a working rooftop farm and other facilities - will be an indispensable anchor for the new community in two respects. It will change public perception of the location from one wholly unfit for residences and families to a place where a vibrant new neighborhood can take hold and thrive. It is also integral to proceeding with the Willets Point Plan; without the concomitant development of Willets West, reclamation and renewal of Willets Point would require prohibitive levels of public subsidies- as the record establishes and years of failed solicitations by the City confirms. In Phase 1B, Appellants will build a new neighborhood in Willets Point, with approximately 35% affordable housing, a school, and all of the amenities 3 needed for a thriving community. The benefits to the people of the City and the State of New York will be tremendous: a transformative new community in New York City, the creation of permanent jobs, and the generation of substantial State and City tax revenue. Respondents ask this Court to call a halt to this innovative public/private commitment to reclaiming and renewing Willets Point. They point to the fact that Willets West, along with the adjacent land that first housed Shea Stadium parking and now Citi Field, is designated parkland, and claim that the Willets West parking lot may not be used as a site for the center. Yet pursuant to New York’s common-law public trust doctrine, property designated as parkland can be used for non-park purposes when directly authorized by the State Legislature. See, e.g., Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 632 (2001); Williams v. Gallatin, 229 N.Y. 248, 253 (1920). Here, in 1961, the Legislature did just that, enacting a statute alienating a swath of land that indisputably includes Citi Field and Willets West. See Admin. Code § 18-118(c) (setting forth the metes and bounds of the alienated parkland) (“Section 18-118” or “Admin. Code § 18-118”).1 The 1961 law delegated to the City express authority to enter into agreements that allow private parties to use the alienated land for any purpose 1 A copy of the full text of Admin. Code §18-118 is attached hereto in Addendum A. 4 enumerated in the statute. Admin. Code § 18-118(a)-(b). The text of the statute establishes that one of the intended purposes was construction of a stadium. See Admin. Code § 18-118(a), (b). The statute also explicitly permits the City to enter into agreements that allow use of the covered property for an exceedingly broad range of other purposes: “for any purpose or purposes which is of such a nature as to furnish to, or foster or promote among, or provide for the benefit of, the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce . . . .” Admin. Code § 18-118(b)(1) (emphasis added). The statute further declares that all of these purposes are public purposes. Id. §(b). Justice Mendez of Supreme Court correctly rejected Respondents’ claim that despite Section 18-118’s sweeping language, the statute did not authorize the City to undertake the planned development of Willets West. As Justice Mendez held, this core component of the Willets Point Plan falls squarely within the statute’s broad enumerated purposes, and thus fully comports with the public trust doctrine. The Plan “will serve the public purpose of improving trade or commerce,” Avella v. City of New York, No. 100161/14, slip op. at 5 (Sup. Ct. N.Y. County Aug. 15, 2014) (Mendez, J.) (RA. 2118), and it will surely promote recreation, entertainment, and amusement, as well. And critically, in tandem with the reclamation and renewal of Willets Point, the Plan will reverse an enduring 5 blight on an otherwise-thriving neighborhood - a result that will undoubtedly foster all of the purposes set forth in Section 18-118. The Appellate Division’s contrary ruling was erroneous because it effectively rewrote the plain language of the statute, in clear contravention of well- settled rules of statutory interpretation. See, e.g., William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 477 (2013). The Appellate Division focused on subsection 18-118(b)(1), which enumerates the broad purposes for which the alienated parkland can be used. Using words found nowhere in that subsection - or elsewhere in the statute - the Appellate Division declared that subsection (b)(1) “require[es] any proposed use to be associated with the stadium and the necessary and natural appurtenances to it.” Avella v. City of New York, 131 A.D.3d 77, 86 (1st Dep’t 2015) (RA. 2109). As detailed below, there is no basis whatsoever for this reading of the statute. Section 18-118(b)(1) could not be more explicit: the City may authorize use of the land “for any purpose” that fosters any of the long list of objectives enumerated in the statute. Under this Court’s precedent, see, e.g., Zaldin v. Concord Hotel, 48 N.Y.2d 107, 113 (1979), that ends the inquiry, and no “canon of construction” can yield a different result. There is no question that the immediate purpose of Section 18-118 was to allow for construction of Shea Stadium. But there can be no question either 6 that the Legislature crafted the law to also permit additional future development for a wide range of uses that the City could specify down the road. A comparison of the 1961 law with the 2005 law enacted to authorize use of parkland for Yankee Stadium underscores the point. In the 2005 law, the Legislature authorized the City to enter only “contracts, leases or rental agreements . . . with the New York Yankees Limited Partnership, [or] its affiliate . . . for development of a professional stadium and to grant . . . other authorizations . . . for the purpose of developing, maintaining and operating thereon a professional baseball stadium and related facilities.” 2005 N.Y. Laws 2923 (ch. 238 § 2(a)) (McKinney 2005). The 1961 statute obviously does not include such limiting language, and this Court cannot insert it into the law. Moreover, the text of the 2005 statute makes clear that the Legislature knew exactly how to tie the City’s hands by limiting the use of Willets West to a baseball stadium and related facilities if it had wanted to do so. It did not. That alone defeats Respondents’ claim. Respondents ask this Court to read the 1961 law as if it were drafted just like the 2005 law, but the Legislature made a different choice. This Court should respect that decision and reject the construction of the law pressed by Respondents. Because Section 18-118 directly authorizes the development envisioned in the Willets Point Plan, this Court should reverse the decision of the 7 Appellate Division and dismiss Respondents’ Complaint. Only at that point can Appellants break ground to begin reclaiming Willets Point and transforming it into a vibrant community - an elusive project that has been decades in the making. STANDARD OF REVIEW The Court of Appeals’ jurisdiction is generally “limited to the review of questions of law.” N.Y. Const. art. VI, § 3(a); Hunt v. Bankers & Shippers Ins. Co. of N.Y., 50 N.Y.2d 938, 940 (1980). See also N.Y. C.P.L.R. 5501(b) (McKinney 2014); Arthur Karger, The Powers of the New York Court of Appeals § 13.1 at 447-48 (rev. 3d ed. 2005). Where, as here, the issues presented raise questions of statutory interpretation, review is de novo. Jones v. Bill, 10 N.Y.3d 550, 553 (2008) (citing Weingarten v. Board of Trustees of N.Y. City Teachers’ Ret. Sys., 98 N.Y.2d 575, 580 (2002)). ISSUE PRESENTED Whether Admin. Code §18-118(b), the statute that alienated the parkland at issue here for development and delegated to the City express authority to enter into leases or other agreements to use that land “for any purpose or purposes which is of such a nature as to furnish to, or foster or promote among, or provide for the benefit of, the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and 8 improvement of trade and commerce,” permits use of this already leased and developed property called “Willets West”- currently an asphalt-paved parking lot- for a retail and entertainment center that will result in increased trade, revenues and taxes to the City and the State, as an essential part of a broader City- designed project that will transform a blighted neighborhood into a flourishing mixed-use neighborhood and community. STATEMENT OF JURISDICTION This Court has jurisdiction over this appeal pursuant to N.Y. C.P.L.R. 5602(a)(1)(i) (McKinney 2014). This action was pending in Supreme Court, New York County, before Justice Manuel Mendez. On August 15, 2014, that court rendered its decision and order granting Appellants’ motion to dismiss the Complaint with prejudice. (RA. 2112.)2 Respondents timely appealed to the Appellate Division, First Department. (A. 7.) On July 2, 2015, the Appellate Division reversed the grant of Appellants’ motion to dismiss and enjoined 2 Appellants’ Appendix contains Respondents’ and Appellants’ Appendices as filed in the Appellate Division. Cites to Respondents’ Appendix in the Appellate Division appear hereinafter as “A. __” and cites to Appellants’ Appendix in the Appellate Division appear hereinafter as “RA. __”. Cites to the Affidavit of Richard Browne (beginning at A. 147) appear as “Browne ¶ __, A. __”; cites to the Affidavit of Glenn Goldstein (beginning at A. 190) appear as “Goldstein ¶ __, A. __”; and cites to the Affidavit of David Quart (beginning at A. 157) appear as “Quart ¶ __, A. __”. 9 Appellants from taking further steps with respect to the Plan. (RA. 2092.) Appellants moved this Court for leave to appeal on August 19, 2015. This Court granted Appellants’ motion for leave to appeal on November 23, 2015. (RA. 2090.) STATEMENT OF THE CASE I. BACKGROUND A. Willets Point For over 100 years, Willets Point has been an undeveloped, contaminated wasteland in Queens, effectively walled off from the vibrant surrounding neighborhoods of Flushing and Corona.3 In the early 1900s, Willets Point served as an ash dump for all of New York City’s waste. Over time, it became home to a mountain of ash 30 feet high, with peaks rising up to 90 feet- the “valley of ashes” from F. Scott Fitzgerald’s The Great Gatsby. (ULURP Application Background, RA. 1254.) In anticipation of the 1939 World’s Fair, the ash hills were leveled and a street grid was created in Willets Point. But the ash pollution was never removed, Willets Point was never integrated into the Fair’s site, and no further development took place at the site. (Id. at 1255.) 3 Photographs of Willets Point included in the record are worth the proverbial “thousand words” in conveying the extreme deterioration of the area. (See Neighborhood Conditions Study, RA. 26-46, RA. 58-106.) 10 Over the next decades, first heavy manufacturing and then a raft of auto-related shops moved into the area, inflicting acute environmental harm on Willets Point and the surrounding area and waterways.4 Because basic infrastructure - paved streets, sewage, and storm drainage - has never been installed in Willets Point, the industrial waste created by these businesses has continuously been dumped onto already-toxic ground. (Neighborhood Conditions Study, RA. 8-11; ULURP Application, RA. 1255.) The junkyards and auto shops in the area have been routinely cited for illegally dumping chemical waste into and around the Flushing River, which flows directly into the Flushing Bay. (Neighborhood Conditions Study, RA. 11.) In 2001, the New York State Attorney General conducted a nearly year-long investigation into environmental crimes in Willets Point that culminated in the April 2001 indictment of 21 junkyards and 35 individuals. (Neighborhood Conditions Study, RA. 118-19.) “‘[D]efendants were charged with violating state environmental laws by dumping motor oil, antifreeze, transmission fluid and other materials into the ground, storm drains and Flushing Bay.’” (Id. at RA. 119.) In total, the Attorney General’s office estimated that 4 While some of these businesses have been successfully relocated by Appellants and the City in the past year pursuant to the Willets Point Plan, many others remain there today. (City Planning Commission (“CPC”) Calendar No. 25, RA. 1567 (describing the various businesses and their land uses); Quart ¶¶ 77-80, A. 184-85 (describing the relocation efforts); October 9, 2013 Letter from the Deputy Mayor to Hon. Julissa Ferreras, A. 530 (similar).) 11 “‘the businesses collectively dumped thousands of gallons of waste fluids’” onto the ground and into the Flushing River. (Id.) Despite these aggressive enforcement efforts, the area is still beset by grave problems. Because of its extensive environmental contamination, Willets Point cannot be developed for residential use absent substantial remediation. The area is chock-a-block full of vacant, substandard, underutilized structures plagued by building code violations, defective construction, lack of proper sanitation facilities, and inadequate fire or safety protection. (Id.; id. at RA. 15-16; Land Use Review Application, Description of Proposal, RA. 1261-62.) As a result, despite its prize location, reclaiming Willets Point is a truly formidable challenge. Indeed, all previous attempts have failed miserably. In 1960, Robert Moses tried to include Willets Point in the redevelopment plan for New York City’s second World’s Fair, but the City’s attempt to acquire the property was thwarted by a lawsuit filed by local landowners, and the plan was abandoned. (Neighborhood Conditions Study, RA. 8.) In the early 1990s, Willets Point was the focus of two planning studies-one prepared by New York City’s Public Development Corporation and one by the Queens Borough President’s office, but neither study ever proceeded past the planning stages. (Id.) In 2008, the City committed to remediate Willets Point and restore it to productive use. In its 2008 Willets Point Plan (the “2008 Plan”), the City 12 designated the area as a Special District, and charted its redevelopment as part of the City’s Urban Renewal Project. (ULURP Application, RA. 1265-67.) While the impact of the 2008 recession required some revisions to be made to the initial plan, the City and Appellants joined forces in support of the Willets Point Plan. As detailed below, their plan will remediate and renew the entire blighted area and transform it into a multi-use neighborhood that includes affordable and market-rate housing, retail spaces, a hotel, open green space and a school - a place where people will want to visit, congregate and ultimately live. (Id.) B. Willets West The land described as “Willets West” in the Plan is a 30.7-acre asphalt-paved parking lot immediately to the west of Citi Field5 in Flushing Meadows, Queens. It includes the land where Shea Stadium - the Mets’ home ballpark from 1961 to 2009 - once stood. (Browne ¶ 3, A. 148.) On October 6, 1961, the City and the Metropolitan Baseball Club, Inc. (“MBC”) entered into a lease that authorized the development of Shea Stadium. (1961 Lease § 3.1, RA. 1080-81.) 5 The Willets West parking lot includes the land on which Shea Stadium was located, not Citi Field itself. (See FSEIS Executive Summary, A. 290.) Citi Field was built just to the east of Shea Stadium, directly across the street from Willets Point. (Neighborhood Conditions Study, RA. 14.) 13 On April 22, 1961, because the property to be covered by the 1961 lease was parkland, the State Legislature passed a law expressly authorizing construction of the stadium and future development of the area, as required by the public trust doctrine.6 This statute, Admin. Code §18-118, covers the entirety of the land in Willets West, as well as the land where Citi Field was later built, and a tract of land across Roosevelt Avenue that currently serves as commuter parking lots. Admin. Code §18-118(c)(1)-(2).7 (FSEIS Figures 1-1 and 1-2, RA. 621; FSEIS Executive Summary, A. 270-72.) Section 18-118 empowers the City to enter into leases and other agreements to grant other parties the right to use any part of the covered property - including the stadium, grounds, parking areas and other facilities - for various enumerated purposes. Notably, at the time the law was passed, Shea Stadium had 6 Pursuant to the public trust doctrine, the State Legislature must expressly authorize the use of mapped parkland for non-park purposes. Williams, 229 N.Y. at 253 (“no objects, however worthy, . . . which have no connection with park purposes, should be permitted to encroach upon [parkland] without legislative authority plainly conferred. . . .”). The 1961 law provided such authorization for the property within the metes and bounds set forth in Section 18-118(c) of the statute. 7 See Admin. Code § 18-118(c) (“The tracts of land referred to in subdivision a of this section are more particularly described as follows: 1. The area of land bounded on the north by the south side of Northern boulevard, on the east by the west side of One hundred twenty-sixth street, on the south by the north side of Roosevelt avenue, and on the west by the east side of Grand Central parkway. 2. The area of land bounded on the north by the south side of Roosevelt avenue, on the east by the west side of One hundred twenty-sixth street, on the south by lands of the city of New York occupied by the New York city transit authority, and on the west by the east side of Grand Central parkway, excepting from such area of land, the portion thereof fronting on Roosevelt avenue occupied by such authority as a substation.”) 14 not yet been built, and the Legislature could not have known where exactly on the parkland the stadium would be built, or where any other facilities might be constructed. (See Browne ¶¶ 3-4, A. 148-49.) In 2006, the City leased the land in Willets West to the New York City Industrial Development Agency (“IDA”), and the IDA and QBC then executed new subleases in anticipation of the construction of Citi Field. (Primary Site Ground Lease Agreement, A. 436.) One of those subleases, which covers the parking areas that will house the Willets West retail and entertainment center, was amended and restated in 2009, and at the same time the Citi Field sublease for the stadium itself was amended. Neither the 2006 subleases nor the restatements or amendments required new enabling legislation. While Willets West is mapped parkland, contrary to Respondents’ characterizations below, it does not include a lake, sports fields, a zoo, botanical gardens or a museum, nor is it publicly accessible. (CPC Calendar No. 25, RA. 1569-70; FSEIS Figure 1-2, RA. 621; Resp. App. Br. 7.)8 Willets West is nothing more than an asphalt-paved parking lot. (Id.; FSEIS Figures 8-5 and 8-6, RA. 621; Executive Summary, A. 290.) And if Respondents are not permitted to move forward with the Project, Willets West will remain an asphalt-paved parking lot. 8 Cites to Respondents’ brief below appear as “Resp. App. Br. __” and relevant pages are attached hereto in Addendum B. 15 C. The City Produces a Plan to Revitalize and Transform Willets Point In 2008, the City itself, determined to revive Willets Point, put together both a development plan and its own Environmental Impact Statement (“EIS”) for the area. (CPC Calendar No. 25, RA. 1562-65; FSEIS 1-2, RA. 621.) This was a rare step by the City. Typically it is a developer that must invest the time and expense needed to produce an EIS and draft a development plan, but the City decided to take on these tasks itself given the unique challenges of reclaiming Willets Point. (Quart ¶ 23, A. 164.) The City’s 2008 Plan proposed one of the most ambitious physical transformation projects in New York City’s history. It called for a sustainable, mixed-use community with widely-distributed open space that will be served by excellent mass transit. Given the dire condition of Willets Point, the 2008 Plan mandated substantial (and costly) improvements: (1) raising the level of Willets Point to address recurrent flooding conditions; (2) remediating environmental conditions caused by decades of contamination; (3) installing infrastructure, including new streets, sanitary and storm water sewers, and a pump station to transport sanitary waste out of Willets Point; (4) pursuing Leadership in Energy and Environmental Design for Neighborhood Development (“LEED-ND”) certification by the U.S. Green Building Council (“USGBC”); (5) constructing a new interchange with the Van Wyck Expressway; and (6) providing economic and 16 relocation assistance to property owners, business people and employees who occupy the area. (Quart ¶ 25, A. 164-65.) Initially, the City’s 2008 Plan sought to develop the entire 61-acre area of Willets Point in one phase. Because of the size of the project and the turbulent state of the economy at the time, however, no interested developer could secure sufficient financing to undertake such a massive project. As a result, the City proposed a two-phase approach to develop the 61 acres. Again, the City’s Updated Plan proved to be too aggressive, and developers were unable to find funding to complete both phases of the project. (Quart ¶ 35, A. 167-68.) D. QDG Creates the Only Viable Proposal to Develop Willets Point and the Surrounding Area In 2011, the City further revised its plan and issued a Request For Proposals (“RFP”) for Phase I of the Willets Point Redevelopment, which included 23 acres in Willets Point. (Quart ¶¶ 36, 40, A. 168-69, A. 170.) This RFP offered a feasible project to prospective developers because it called for the development of a smaller tract of land in Willets Point. Phase II of the Project would focus on development of the remainder of the 61 acres.9 (Quart ¶¶ 42-43, A. 171-72.) 9 Under the Purchase and Sale Agreement between EDC and QDG (the “PSA”), QDG has a right of first offer for the Phase II lands, which terminates if it fails to complete the entirety of the planned development on the Phase I land. (PSA §§ 17.1, 17.4, A. 380-81.) 17 Sterling Equities Associates (“Sterling”), through Sterling Willets LLC, was uniquely situated to develop a strong proposal for the RFP because its owners also have an ownership stake in the New York Mets, whose home baseball field is Citi Field. Queens Ballpark Company, L.L.C. (“QBC”) is affiliated with Sterling, and holds the lease to Willets West. In addition to the economic value that this lease brings to the reclamation effort, the owners of Sterling have witnessed firsthand the deterioration of Willets Point over the decades, and the City’s project presented an opportunity to breathe new life into the whole area. (Browne ¶¶ 7-9, A. 149-50.) Sterling put forward two of the four proposals that were submitted in response to the City’s 2011 RFP. One of those proposals included a new convention center, but the construction and operation would have required a significant public subsidy that the City and the Sterling entities ultimately determined was impracticable. (Id. ¶ 13, A. 152.) For the second proposal (the “QDG Project”), Sterling created a joint venture with The Related Companies LP (“Related”), which has successfully completed complicated development projects across New York City. (Id. ¶ 14, A. 152.) Related has a national reputation for developing mixed-use communities, retail centers, rentals and affordable housing, and has often worked hand-in-hand with the City in developing projects with open, publicly-accessible parks and plazas alongside residences and amenities. 18 (Goldstein ¶ 5, A. 193-94.)10 Related has also managed many projects with significant numbers of affordable housing units, and assisted the City in ensuring that those units stay in the affordable housing program. (Id. ¶¶ 4, 9, A. 192-93, A. 195.) The QDG Project provides for the development of Willets Point and Willets West. (FSEIS Figures 1-4 - 1-5, RA. 621.) Willets Point - the environmentally contaminated wasteland that the City initially targeted in its 2008 Plan - lies directly to the east of Citi Field. It is a 61-acre triangular parcel of land bounded to the south by Roosevelt Avenue; to the east by the Van Wyck Expressway and the Flushing River; to the north by Northern Boulevard; and to the west by 126th Street. (ULURP Application, RA. 1256-61; FSEIS 1-4 - 1-5, RA. 621.) Willets West is a 30.7-acre asphalt parking lot for Citi Field that lies just west of the stadium. (Id., see also RA. 1268-69.) It is undisputed that the Willets West portion of the project lies entirely within the metes and bounds of the parkland that was alienated in the 1961 Statute. 10 For example, Related worked closely with the City to bring to fruition a project at the Gateway Center in East New York, Brooklyn, New York that is similar in key respects to this one. Like Willets Point, it is a phased plan that calls for construction of an open-air commercial center that will serve as a catalyst for residential development, including a significant number of affordable housing units, a new school, additional public park space and substantial roadway improvements. (Goldstein ¶ 7, A. 194-95.) 19 After careful analysis, Sterling and Related determined that the ambitious redevelopment envisioned by the City required some fundamental change to transform Willets Point into a habitable community where people want to spend leisure time and make a home. They realized, as well, that QBC’s lease on Willets West uniquely positioned them to partner with the City in bringing about that change. While no developer could find a way to make the Willets Point development project alone work without a prohibitive public subsidy,11 Sterling and Related could use the land on Willets West as a catalyst for the rest of the development. By developing the parking lot on Willets West into a retail and entertainment destination, the joint venture could revitalize commerce in the area and lay the groundwork for a new community in Willets Point. (Browne ¶ 15, A. 153.) To that end, Sterling Willets LLC and Related Willets, LLC, affiliates of Sterling and Related, respectively, formed a new joint venture, QDG, and submitted a proposal for the Willets Point Plan to the City in early 2012.12 QDG segmented the first phase laid out in the City’s 2011 RFP into two components, 11 (See CPC Calendar No. 25, RA. 1565 (explaining that other proposals required a “prohibitive level of public subsidy”).) 12 Sterling and Related initially proposed a plan that included a casino on Willets West. Given the extensive federal and state approvals needed for operation of a casino, along with the additional requirement that the City convey fee title of the land to the United States to obtain a gaming license, they concluded that this plan was unworkable and submitted the Willets Point Plan. (Goldstein ¶¶ 14-15, A. 197-98.) 20 Phase 1A and Phase 1B. In Phase 1A, QDG will remediate the land in Willets Point to residential standards and construct the retail and entertainment center in Willets West that will anchor the new Willets Point community. In Phase 1B, QDG will build 2,490 housing units - approximately 35% of which will be affordable housing units - and a school, along with all of the amenities needed for a thriving community. (CPC Calendar 25, RA. 1568-71.) The extensive remediation completed in Phase 1A will ensure that the land on Willets Point is clean, safe, and habitable for these new homes, schools, and parks. In furtherance of this key objective, QDG has enrolled in the New York State Brownfield Cleanup Program, under the oversight of the State’s Department of Environmental Protection. (Browne ¶ 16, A. 153; October 9, 2013 Letter from the Deputy Mayor to Hon. Julissa Ferreras, A. 535.)13 The City approved QDG’s proposal, and on May 2, 2012, QDG entered into the PSA with EDC for the land in Willets Point.14 QDG then reached 13 The Brownfield Cleanup Program is a state-run program designed to encourage private- sector cleanups of contaminated areas and to promote their redevelopment as a means to revitalize economically blighted communities. To apply, interested participants must schedule a pre-application meeting and complete an application which describes, among other things, the environmental history of the property and the detected contaminants, and which also includes a site location map and drawing. The Department of Environmental Conservation oversees all cleanup activity. See N.Y. Envtl. Conserv. Law §§ 27-1401 -1437 (McKinney 2007 & Supp. 2016). 14 Though Respondents made light of QDG’s obligations under the PSA, (Resp. App. Br. 11- 12), QDG is subject to a $35 million liquidated damages clause if it does not follow through on both Phase 1A and Phase 1B of the project. (PSA §12.3(3), A. 374.) That is one of the (cont’d) 21 out to elected officials and community groups to present the Project. (Goldstein ¶ 17, A. 198.) E. QDG and the City Secure All Necessary Approvals for the Plan Working alongside the City, QDG was fully involved in every single step of the approval process. To allow transitional uses-surface parking and recreational activities-in Willets Point, QDG applied for a zoning text amendment, Special Permits, and a minor modification to the City Map. (CPC Calendar No. 25, RA. 1562-63.) In connection with those applications, and in accordance with the ULURP process,15 QDG actively participated in Queens Community Board 7 meetings,16 CPC hearings, and meetings of the City Council ________________________ (cont’d from previous page) largest penalties-if not the largest-in the history of City-contractor development contracts. More significantly, once the land in Willets Point has been remediated, its value will increase substantially. It would make no economic sense for QDG to walk away from such a project, particularly when it would be giving up not just the chance to develop the 23 acres in Willets Point, but also its right of first offer to the rest of the 61 acres. See supra n.9. 15 The Uniform Land Use Review Procedure, or “ULURP,” is a formal public review process of an application for land use and development projects in New York City required by the New York City Charter. The ULURP process includes review by the Department of City Planning (DCP) and the CPC, Community Boards, the Borough Presidents, the Borough Boards, the City Council and the Mayor. New York City, N.Y. Charter §§ 197-C, 197-D, 200 and 201 (2004). 16 Willets Point lies within the jurisdiction of Queens Community Board No. 7. QDG was so committed to earning community approval that the joint venture agreed to pay $100,000 into a Willets Point Infrastructure and Traffic Mitigation Fund for any quarterly meetings of Queens Community Board No. 7 that it misses. QDG participated in the first quarterly meeting and will continue to update Board No. 7 at each such meeting. (Goldstein ¶ 18, A. 198-99.) QDG has fully satisfied their obligation to attend these meetings and will continue do to so in the future. 22 Subcommittee on Zoning and Franchises. Community Board No. 7 and the Queens Borough President recommended approval of the applications on May 13, 2013, and July 2, 2013, respectively. (Recommendation of Queens Community Board No. 7, RA. 1596; Queens Borough President Recommendation, RA. 1613- 16.) Following those recommendations, on August 21, 2013, the CPC approved the applications for the zoning text amendment and the City Map modification, as well as applications for four Special Permits pursuant to the zoning amendment. The CPC found that all were “reasonably necessary for transitional purposes to assist in achievement of the goals of the [Willets Point] Special District.” (CPC Calendars Nos. 24-29, RA. 1590, 1675, 1683, 1695, 1707, 1716.) As part of its determination, the CPC considered the entirety of the Project (including development of both Willets Point and Willets West), as well as the environmental review process, the ULURP review process, and the Project’s consistency with the Waterfront Revitalization Program. (CPC Calendar No. 25, RA. 1563-70, RA. 1577-85.) On October 9, 2013, the City Council, like the CPC, found that each application was reasonably necessary to assist in achieving the goals of the Willets Point Plan, and approved all six applications. (Oct. 9, 2013 City Council Meeting Minutes, RA. 2063-74.) Throughout these public hearings, Respondents had the 23 right to-and did-voice their concerns with the project. See, e.g., July 10, 2013 Transcript of CPC Public Hearing, RA. 1473-77 (Respondent Haber voices concerns); 1481, 1492 ($35 million penalty operates as an ‘out’ clause); 1526-29 (concerns from Phil Konigsberg of Queens Civic Congress); 1545-52 (concerns heard from Geoffrey Croft of NYC Parks Advocates); September 3, 2013 Transcript from City Council Subcommittee on Zoning and Franchises, RA. 1890- 99 (Geoffrey Croft raises concerns of “seizure” of public parkland); 1894-99 (discussion about the 1961 Statute); 1917-19 (Respondent Haber raises concerns about lack of transparency and compliance with ULURP). In order for the project to proceed, the City must complete acquisition of the 23 acres of Phase 1 land in Willets Point, pursuant to the PSA. While the City has already acquired 95 percent of the area and has conveyed a small portion to QDG, remediation work cannot commence until the entire 23 acres has been conveyed. (Quart ¶ 79, A. 184-85.) Once that happens, QDG can begin remediation-the first step toward transforming Willets Point into a thriving and sustainable community. (Quart ¶¶ 76, 81, A. 183-84, A. 185-86.) II. PROCEDURAL HISTORY A. State Supreme Court Dismisses the Complaint In 2014, Respondents filed a verified petition and complaint in New York State Supreme Court (Mendez, J.), alleging a laundry list of purported 24 violations in the approval process for the Willets Point Plan, and claiming that the development of Willets West is not authorized by statute and thus violates the public trust doctrine.17 Appellants moved to dismiss the Complaint on April 17, 2014, arguing that (1) they, in tandem with the City, had followed the proper procedures and received all necessary approvals for the Project, and (2) the City’s leasing of Willets West for the purpose of developing a retail and entertainment center as part of the overall Plan is authorized by Section 18-118 (the 1961 statute authorizing use of the land for Shea Stadium and other public purposes) and therefore does not violate the public trust doctrine. Supreme Court agreed with Appellants and rejected both of Respondents’ claims. Justice Mendez concluded that Section 18-118 authorizes the leasing of Willets West for the proposed retail and entertainment center. The Court held that the statute “applies to the use of the property for a shopping mall, because it will serve the public purpose of improving trade or commerce.” Avella, No. 100161/14, slip op. at 5 (RA. 2118). The Court also concluded that “[t]he legislature in designating other purposes for the use of the property has already resolved the issues related to the public trust doctrine” and that the Willets West Plan “will also serve the public purpose of ultimately altering the blighted Willets 17 Respondents filed a Verified Petition on February 10, 2014, and an Amended Verified Petition and Complaint on March 3, 2014 (the “Complaint”) (A. 17). 25 Point into a mixed use community.” Id. (RA. 2118). Supreme Court further held that because Section 18-118 sets forth the purposes for which the parkland on Willets West can be used “[n]otwithstanding any other provision of law, general, special or local,” development of the land pursuant to the Willets Point Plan is not subject to ULURP. Id. at 4 (RA. 2117). Finally, the Court found that the City’s land use determinations were not arbitrary or capricious. Id. at 6 (RA. 2119). Accordingly, Supreme Court dismissed the Complaint. Respondents appealed on September 10, 2014. (A. 7.) B. The Appellate Division Erroneously Reverses Supreme Court On July 2, 2015, the Appellate Division, First Department reversed Justice Mendez’s decision. See Avella, 131 A.D.3d 77 (RA. 2092, RA. 2110-111). In doing so, the Appellate Division ignored the Legislature’s explicit mandate that the parkland in Willets West can be used “for any purpose or purposes which is of such a nature as to furnish to, or foster or promote among, or provide for the benefit of, the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce.” Admin. Code § 18-118(b)(1) (emphasis added). Instead of giving effect to the plain language of this provision, the Appellate Division determined that the “overriding context” of Section 18-118 “concerns the stadium,” and held that the statute only allows for uses “relate[d] to the stadium itself and the naturally 26 expected uses of a stadium as listed in subdivision (b)(1).” Avella, 131 A.D.3d at 86 (RA. 2109-110). It made this determination notwithstanding the long list of purposes separately enumerated in Section 18-118(b)(1). Id. at 84 (RA. 2105-107). Contrary to fundamental principles of statutory interpretation, the Appellate Division read the examples of authorized uses set forth in Section 18- 118(b)(1) as limiting - indeed all but eviscerating - the statute’s broad list of enumerated purposes. Id. at 84-86 (RA. 2105-110). Additionally, while the Appellate Division appeared to agree with Appellants that Section 18-118(b)(2) authorized uses related to financing of the construction and operation of the stadium and other facilities on the covered land (as the statute expressly says), it inexplicably suggested that this provision somehow limited the reach of Section 18-118(b)(1). Id. at 86 (RA. 2109-110).18 Based on this flawed reasoning, the Appellate Division snuffed out the promise of the Willets Point Plan to rehabilitate a neighborhood in Queens that has languished for nearly a century. ARGUMENT New York’s common-law public trust doctrine requires direct, specific legislative approval to alienate parkland and use it for non-park purposes. See Friends of Van Cortlandt Park, 95 N.Y.2d at 632. It is undisputed that the 18 The Appellate Division did not address the other grounds for relief raised in Respondents’ Complaint. 27 Legislature specifically and directly alienated the parkland at issue here when it enacted Section 18-118. The only remaining question is whether using a section of that property to develop the Willets West parking lot into a retail and entertainment center falls within the broad range of purposes enumerated in the 1961 law. The plain language of the statute yields a straight-forward answer: yes. Section 18-118 has two provisions that are central to this appeal: subsection (a) directly authorizes the alienation of all parkland that falls within the metes and bounds set forth in the statute, including Willets West. In addition to authorizing the City to agree to construction and use of the stadium, grounds and parking areas, it grants the City authority to enter into “new, additional or further” agreements with “any other person or persons” for use of the covered property, all in furtherance of any of the purposes in subsection (b). Subsection (b) enumerates the purposes for which that land can be used.19 It includes two parts: the first part lays out a wide range of permissible purposes that benefit the people of the City, and the second part authorizes business or commercial purposes that aid in financing of the construction and operation of the stadium, grounds, parking areas, and facilities. See Admin. Code § 18-118(b)(1)-(2). 19 Subsection (c) specifies the metes and bounds of the property covered by the statute. The statute also contains a subsection (d), which allows the City to enter into contracts for less than one year without the approval of the Board of Estimate, and a subsection (e), which allows the City to issue bonds for the purposes of financing construction costs. 28 Respondents’ public trust doctrine claim requires a gross misreading of both provisions. They contend that the statute allows for construction and leasing only of the stadium (then Shea Stadium) and related facilities. But the plain language says otherwise: Section 18-118 plainly and directly authorizes the Plan, including the Willets West component, thereby satisfying the public trust doctrine’s requirement of legislative approval. Where, as here, the language of a statute is clear and unambiguous, the Legislature has directed that it must be construed according to its plain meaning, and “the courts are not at liberty” to read a statute otherwise. N.Y. Stat. Law § 94 cmt. (McKinney 1971). The precedents of this Court are fully in accord with this fundamental tenet of statutory interpretation. See, e.g., Rabizadeh, 22 N.Y.3d at 477 (“We construe the terms of a statute that are clear and unambiguous, ‘so as to give effect to the plain meaning of the words used[.]’” (citations omitted)); Samuelsen v. New York City Transit Auth., 101 A.D.3d 537, 540 (1st Dep’t 2012) (“‘[I]n construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning.’”). 29 The authority that Section 18-118 confers goes far beyond using the alienated land for construction and operation of a stadium. Rather, the statute expressly enumerates a broad range of permissible purposes, without circumscribing them to ones that are necessary for the stadium. One searches the text in vain for the limiting language that Respondents and the Appellate Division would write into the statute - constraining the City’s authority to allowing only use of “the stadium and the necessary and natural appurtenances to it.” Avella, 131 A.D.3d at 86 (RA. 2109). To the contrary, Section 18-118 explicitly authorizes the City to enter into “contracts, leases or rental agreements . . . licenses, permits, concessions or other authorizations . . . for any purposes or purposes referred to in subdivision b.” Admin. Code § 18-118(a) (emphasis added). And the City may enter into “new, additional or further” agreements “from time to time” “prior to or after the expiration or termination” of any other such agreements. Admin. Code § 18-118(a). The development of Willets West fits comfortably within the broad parameters of Section 18-118(b)(1). The project will foster, furnish, and provide for entertainment, recreation, amusement, education and improvement of trade and commerce. Moreover, it will enable the remediation and development of Willets Point. Because the retail and entertainment center will serve the public purposes contemplated by Section 18-118, its construction is expressly authorized by 30 legislation and complies with the rule that alienation of parkland must have specific and direct legislative approval. Friends of Van Cortlandt Park, 95 N.Y.2d at 631-32. I. Text, Structure, and Precedent Preclude Rewriting Section 18-118 to Narrow the Purposes for Which Willets West Can Be Used. Both the text and structure of Section 18-118 make clear that the statute authorizes the City to allow any use of the covered property that promotes any one of the broad purposes enumerated in 18-118(b). Respondents’ contention, adopted by the Appellate Division, that the 1961 law allows only construction, operation, and use of a baseball stadium and related facilities simply cannot be squared with the language of the statute itself. Indeed, had the Legislature wanted to write such a law, it knew exactly how to do so, as the 2005 statute passed to authorize construction of Yankee Stadium proves. But here it chose otherwise, and this Court should give full effect to the plain words of Section 18-118. A. The Plain Language of Section 18-118 Authorizes Use of Willets West for Any One of the Broad Purposes Enumerated in 118(b). Respondents and the Appellate Division proffer a reading of Section 18-118 that has no anchor in the text itself: that the only permissible uses for Willets West (and all of the property covered by the statute) are those associated with the stadium. Avella, 131 A.D.3d at 86 (RA. 2109-110). If the Legislature had 31 intended to limit use of the alienated parkland to these narrow purposes, it would have said so. Basic tenets of statutory interpretation require this Court to respect the plain language of the 1961 law, rather than rewriting it to insert the limiting language that Respondents propose. Referencing its finding that “the overriding context of Administrative Code § 18-118 concerns the stadium to be built,” the Appellate Division improperly discarded subsection (b)(1)’s broad list of enumerated purposes and confined the acceptable uses to those related to the “stadium, and the stadium only.” Avella, 131 A.D.3d at 84-85 (RA. 2106-107). That was error, especially given the exceedingly broad grant of authority conveyed by Section 18-118. Although financing and building a stadium in 1961 was a central purpose of the statute, Section 18-118 expressly anticipated future development that goes beyond that objective in several respects. Subsection 118(a) authorizes agreements to use the property that are distinct from those related to the stadium itself, alienating the covered land for “any purpose” enumerated in subsection (b). That provision in turn sets forth a broad range of purposes, including “recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce.” Admin. Code § 18- 118(b)(1). Nowhere does that plain language limit authorized uses only to those 32 that “relate to the stadium itself and the naturally expected uses of a stadium.” Avella, 131 A.D.3d at 86 (RA. 2109). The Appellate Division cast aside the text of the statute and contravened well-settled principles of statutory interpretation in holding otherwise. It is well established that a court should not, as the Appellate Division did, read language into a statute. See People v. Wragg, 26 N.Y.3d 403, 405 (2015) (“this Court is without authority to read mandatory language into a statute where it is otherwise absent” ) (citing Lederer v. Wise Shoe Co., 276 N.Y. 459, 496 (1938) (“We do not by implication read into a clause of a rule or statute a limitation for which we find no sound reason and which would render the clause futile.”)); see also Commonwealth of the N. Mariana Islands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55, 62 (2013); Concrete Applied Techs. Corp. v. Cty. of Erie, 130 A.D.3d 1578, 1580 (4th Dep’t 2015); DiMarino v. Maher, 76 A.D.3d 653, 654-55 (2d Dep’t 2010). Nor can a court excise words, or render them surplusage. Leader v. Maroney Ponzini & Spencer, 97 N.Y.2d 95, 104 (2001). While the Appellate Division believed that its radical rewrite of the statute was supported by the “ejusdem generis” canon, it misapplied that interpretative guideline. First, there is no need to look to any canon of construction here because the plain language is unambiguous. See, e.g., United States v. Turkette, 452 U.S. 576, 581 (1981) (“The rule of ejusdem [sic] generis is no more 33 than an aid to construction and comes into play only when there is some uncertainty as to the meaning of a particular clause in a statute.”) Second, the “ejusdem generis” canon is properly used in an entirely different circumstance than the one presented here: when a general term or phrase (usually a “catchall” word) follows a list of specific terms. That is not the case with subdivision (b)(1), which gives a general list of authorized uses, and then gives an illustrative list of some uses that fit within the general list. Though the Appellate Division suggested that the order was irrelevant, the canon has long been applied to “limit[] general terms which follow specific ones to matters similar to those specified.” See, e.g., Gooch v. United States, 297 U.S. 124, 128 (1936); CSX Transp., Inc. v. Alabama Dep’t of Revenue, 562 U.S. 277, 294-95 (2011) (declining to apply the canon where a sub-division in a statute was, “‘[a]lthough something of a catchall, . . . not a general or collective term following a list of specific items to which a particular statutory command is applicable (e.g., ‘fishing rods, nets, hooks, bobbers, sinkers, and other equipment’)’”) (alterations in original) (citations omitted). While the canon is sometimes used to narrow a final term that would swallow up a list of narrower words if given literal construction, the Appellate Division pointed to no cases where it has been used to excise broad statutory language followed by several examples, and replace it with substitute language that dramatically narrows the scope of a statute. 34 The Appellate Division made another critical interpretative error: it read subsection (b)(1)’s list of examples of permissible purposes - “including professional, amateur and scholastic sports and athletic events, theatrical, musical or other entertainment presentations, and meetings, assemblages, conventions and exhibitions for any purpose, including meetings, assemblages, conventions and exhibitions held for business or trade purposes, and other events of civic, community and general public interest” - as limiting, rather than illustrative language. Avella, 131 A.D.3d at 85 (RA. 2107-109) (emphasis added). Inexplicably, the Appellate Division acknowledged the breadth of the statutory language, yet averred that it should be construed narrowly: “Here, the purposes for which the ‘stadium, grounds, parking areas and other facilities’ may be used are unquestionably wide, but only to the degree that they fit within the specific examples provided by the limiting language.” Id. at 85-86 (RA. 2108-109). Not only does this explanation muddy the waters, but it also fails to apply the well-settled tenet that statutory language such as “including” is illustrative, not limiting language. Cahill v. Rosa, 89 N.Y.2d 14, 21 (1996) (statutory language that “‘[t]he term ‘place of public accommodation, resort or amusement’ shall include” “is broad and inclusive language, and the statutory list that follows it is illustrative, not specific” (alteration in original)); accord U.S. Power Squadrons v. State Human Rights Appeal Bd., 59 N.Y.2d 401, 409 & n.1 35 (1983) (statutory language that “‘[t]he term ‘place of public accommodation, resort or amusement’ shall include, except as hereinafter specified…’” “define[d] ‘place of public accommodation, resort or amusement’ inclusively and illustratively, not specifically”). Had the Legislature wanted to include limiting language that restricted use of Willets West to stadium and stadium-related uses, it could have done so, replacing the term “including” with the phrase “limited to,” or otherwise circumscribing the uses that could be made of Willets West, as it did in the 2005 Yankee Stadium Statute. See infra Point IC. Instead, the Legislature laid out a wide-ranging array of purposes for which Willets West can be used - a list that surely encompasses future development such as this very project that benefits the people of the City. The only coherent reading of Section 18-118 - one that gives effect to every word in the statute - is that adopted by Supreme Court. The text confirms that while the immediate purpose of the 1961 law was to facilitate construction of Shea Stadium, the Legislature authorized further development on that plot for anything that promoted the purposes enumerated in 18-118(b). Because Respondents’ contrary interpretation would require this Court to write key terms out of the statute, it violates a basic precept of statutory interpretation. See Leader, 97 N.Y.2d at 104 (statute should not be interpreted to render a term superfluous); 36 Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 515 (1991) (same). Accordingly, it must be rejected. B. The Structure of Section 18-118 Confirms that the City Can Permit A Wide Range of Uses on the Covered Property, Including Willets West. The structure of Section 18-118 confirms what the plain text directs: the statute’s grant of authority extends to any purpose enumerated in Section 118(b), and is not limited to construction (or operation or use) of a stadium and its necessary facilities. Subdivision (a) authorizes the City to enter into leases that convey “the right . . . to use, occupy or carry on activities” anywhere on the covered property “for any purpose or purposes referred to in subdivision (b).” Section 118-18(b) sets forth two categories of purposes, and defines all of them as “public purposes.”20 The first category, subsection (b)(1), is broad. It includes: any purpose or purposes which is of such a nature as to furnish to, or foster or promote among, or provide for the benefit of, the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce. Id. Subsection (b)(2), by comparison, authorizes use of the covered property for a more targeted set of purposes: “any business or commercial purpose which aids in 20 The statute’s express determination that all of the enumerated purposes are “public purposes” squarely defeats Respondents’ contrary position below. See Admin. Code § 18-118(b). 37 the financing of the construction and operation of such stadium, grounds, parking areas and facilities, and any additions, alterations or improvements thereto.” Id. If the Legislature had intended to authorize only construction and use of Shea Stadium, as Respondents have claimed, or only uses “relate[d] to the stadium itself and the naturally expected uses of a stadium,” as the Appellate Division read the law, it would not have needed to include subsection (b)(1) at all. Avella, 131 A.D.3d at 86 (RA. 2109). Conversely, if (b)(1) were read as narrowly as Respondents and the Appellate Division would have it, then subsection (b)(2) would be wholly unnecessary. But in enacting two different provisions that address permissible uses, the Legislature plainly contemplated two distinct categories of purposes. It even placed the words “and/or” between the two subsections, conclusively establishing this intention. The crabbed construction advanced by Respondents and the Appellate Division strips out this language, collapses the two subsections and renders one or the other of them superfluous. Such an interpretation again violates a cardinal rule of statutory interpretation and should be rejected out of hand.21 See supra Point IA. 21 While the Appellate Division recognized this canon of construction, acknowledging that “‘all parts of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided,’” Avella, 131 A.D.3d at 84 (RA. 2106) it ignored it. 38 C. The Legislature Clearly Knows How to Restrict the Uses of Alienated Parkland, But Chose Not to Do So Here. Not only does the language of Section 18-118 plainly authorize broad uses of the covered property - including the planned development at Willets West - but there is no question that the Legislature knew precisely how to circumscribe the uses of Willets West to those directly related to a stadium if it had intended to do so. The 2005 statute authorizing construction of Yankee Stadium provides a critical counterpoint: 2. a. Notwithstanding any other provision of law, general, special or local to the contrary, the city of New York, acting through the mayor or his or her designee, is hereby authorized and empowered to enter into one or more contracts, leases or rental agreements for a term not to exceed ninety-nine years, with the New York Yankees Limited Partnership, its affiliate and/or another entity or entities, for development of a professional baseball stadium and to grant easements, licenses, permits, concessions and other authorizations. . . for the purpose of developing, maintaining and operating thereon a professional baseball stadium and related facilities . . . . b. Notwithstanding any other provision of law, general, special or local to the contrary, the city of New York, acting through the mayor or his or her designee, is hereby authorized and empowered to enter into one or more contracts, leases or rental agreements with a local development corporation, the New York state urban development corporation or a subsidiary thereof, or another entity or entities, for a term not to exceed ninety-nine years, and to grant easements, licenses, permits, concessions and other authorizations, with respect to certain land of the city of New York, including parkland in the borough of the Bronx, more particularly described in subdivision d of this section, for the purpose of developing, constructing, operating and maintaining parking facilities and other stadium related facilities and the equipping thereof, and facilities 39 related thereto, to serve the professional baseball stadium referred to above . . . 2005 N.Y. Laws 2923 (ch. 238 § 2(a)-(b)) (emphasis added) (McKinney 2005) (“Ch. 238”). Notably, the structure of the 1961 law and that of the 2005 law are similar. Both lay out the metes and bounds of a tract of land, §18-118(c), Ch. 238 § 2(c)-(d), and set forth the purposes for which the covered property may be used, §18-118(b), Ch. 238 § 2(a)-(b). But they differ in one key aspect. The 1961 law authorizes use of the covered property for a broad range of purposes without limitation. See Admin. Code § 18-118. In contrast, the 2005 statute confines use of the land covered by that law to “a professional baseball stadium and related facilities.” Ch. 238 § 2(a).22 Indeed, the 2005 statute even provides for termination of the lease and reverter of the land to the City if the parkland in Yankee Stadium is ever conveyed for a non-stadium use. Id. § 6. Plainly, the Legislature knows how to limit the use of alienated parkland when it wants to do so. And critically, that choice is reserved to the Legislature. Faced with a statute that authorizes exceedingly broad uses of the parkland at issue, Respondents want this Court to rewrite that law so that it 22 Section 2(a) of the 2005 statute authorizes development of the stadium itself within the metes and bounds of the area described in section (c) of the statute. Section 2(b) permits the development of additional parkland, described in section (d) of the statute, but only for “parking facilities and other stadium related facilities.” (emphasis added). 40 resembles the Yankee Stadium statute. This Court should reject that invitation and give effect to the plain words that were enacted into law, as precedent dictates. II. The Willets West Development Falls Squarely Within Section 18- 118(b)’s Enumerated Purposes. The development that is planned for the Willets West parking lot area fits comfortably within the expansive purposes that the Legislature set forth in Section 18-118(b). Willets West is expected to contain retail shops, movie theaters, amusements, restaurants, public programming spaces, a rooftop farm and other commercial attractions. (Development Agreement Schedule 1-1, RA. 929- 37.) All of these uses fall squarely within the purposes outlined in Section 18- 118(b)(1). Movie theaters and restaurants provide entertainment, amusement and gathering places for patrons, and the films shown in those theaters provide education, enlightenment, and insight into other cultures and viewpoints that results in cultural development and betterment, as will the rooftop farm. In addition, public programming spaces, which are expected to contain spaces for art displays and public performances, provide places for meetings, education and community development. There is also no doubt that adding a significant stream of commerce to an otherwise blighted area serves a public purpose and improves trade and commerce. See Kaufmann’s Carousel, Inc. v. City of Syracuse Indus. Dev. Agency, 301 A.D.2d 292, 296, 303 (4th Dep’t 2002) (development of a retail 41 shopping center served the stated public purposes of advancing the general prosperity and welfare of residents, promoting tourism and ameliorating economic deterioration); Save Coney Island, Inc. v. City of New York, 27 Misc. 3d 1221(A), at *17 (Sup. Ct. N.Y. County 2010) (unpublished table decision) (“[T]he record indicates that the Rezoning Plan is reasonably related to the (undisputed) legitimate governmental purpose of revitalizing the Coney Island economy, while restoring Coney Island to its iconic status as a world-renowned amusement center and destination for visitors both near and far.” (emphasis added).) Furthermore, as Supreme Court held, all of these things, in conjunction with retail shops, will contribute to the improvement of trade and commerce not only in Willets Point, but also in the City and State as a whole. Indeed, this portion of the development is essential to the overall Plan’s goal of rehabilitating a blighted area and revitalizing Willets Point for the benefit of the people of the City, a patently public purpose: The improvement of trade or commerce resulting from leasing the parkland including use as a shopping mall, is part of the development plan for purposes of creating an entire “special district” and community which ultimately will result in the public benefit of removal of urban blight from Willets Point. Avella, No. 100161/14, slip op. at 5 (RA. 2118). In addition to establishing a major new entertainment and commercial destination, the development will create a center for economic growth in Queens 42 by infusing approximately $3 billion of private investment into the local economy, generating over tens of millions of dollars in new tax revenues during construction and after completion. The development will help create over 10,000 construction jobs during its pendency, and once completed is anticipated to create over 7,100 permanent jobs. (October 9, 2013 Letter from the Deputy Mayor to Hon. Julissa Ferreras, A. 529.) It will remediate an area that has been plagued by severe environmental contamination, and bring modern infrastructure to a location that has been neglected for nearly a century. All of these outcomes will “benefit [] the people of the city” by improving their welfare, creating areas for “recreation and prosperity,” and improving trade and commerce. For all of these reasons, the development of Willets West as a retail and entertainment center is expressly permitted by the statute. The public trust doctrine requires nothing more. Kuntz v. Castro, 5 A.D.3d 1088, 1088 (4th Dep’t 2004) (public trust doctrine not violated where “project complie[d] with the legislative authorization therefor” (citation to statute omitted); Grayson v. Town of Huntington, 160 A.D.2d 835, 837 (2d Dep’t 1990) (construction did not violate public trust doctrine where proposed use fell within authorization of Public Housing Law). 43 III. The Remaining Arguments Advanced By Respondents Below Are Meritless. Respondents advanced several arguments below that the Appellate Division correctly declined to embrace, and this Court should do the same. First, Respondents claimed that the public trust doctrine imposes some ill-defined, heightened burden on the Legislature when it chooses to alienate parkland.23 Since Friends of Van Cortlandt Park, 95 N.Y.2d at 631-32, the law has been settled that to alienate parkland in accordance with the public trust doctrine, that alienation must be directly authorized by statute, and every word of the statute must be given effect. But nothing in this Court’s precedent, or in the policies underlying the public trust doctrine, suggests that the Legislature is subject to some additional burden when it specifies the purposes for which alienated parkland can be used. All that is required is that the alienation be directly authorized, and there is no question that all of the land at issue here was expressly alienated. See Admin. Code § 18-118(c). Indeed, Respondents’ novel “public trust” canon would sharply curtail the Legislature’s discretion. In enacting the 1961 law, the Legislature made a choice to authorize a broad range of uses for the parkland it was alienating. Respondents ask this court to instead rewrite the text of Section 18-118(b) by 23 Respondents now appear to have abandoned this argument. See Affirmation in Opposition to Motion for Leave to Appeal to the New York State Court of Appeals (“Leave Opp.”) at 5 n.4. 44 significantly narrowing those authorized uses. The future implications of their position are clear: if they prevail, then in the future, the Legislature will be able to identify only a very specific, discrete use for alienated parkland, rather than allowing some flexibility in future uses. That result is certainly not required by precedent or principle, and would significantly compromise public land use planning. Second, Respondents insisted that the bill jacket and title of the 1961 law required the court to abandon the plain language of the statute, and pressed the same point in their opposition to Appellants’ leave motion. Leave Opp. at 4, 8. That argument is foreclosed by well-settled precedent instructing that the text of a statute controls an inquiry into legislative intent. See, e.g., Zaldin, 48 N.Y.2d at 113 (when text is “free from ambiguity and its sweep unburdened by qualification or exception,” court should have done “no more and no less than apply the language as it is written”); Jones, 10 N.Y.3d at 555 (same); Rivers v. Sauter, 26 N.Y.2d 260, 262 (1970) (“By accepted canons of construction the generalities of the article heading must yield to the specifics of the section itself.”); People v. English, 242 A.D.2d 940, 940 (4th Dep’t 1997) (“‘[T]here can be no doubt that the text of [a] statute must take precedence over its title. While a title or heading may help clarify . . . the meaning of an imprecise or dubious provision, it may not alter or limit the effect of unambiguous language in the body of the statute itself.’” 45 (alterations in original) (citing Squadrito v. Griebsch, 1 N.Y.2d 471, 475 (1956)); City of N.Y. v. Stringfellow’s of N.Y., Ltd., 253 A.D.2d 110, 116 (1st Dep’t 1999) (“[L]egislative intent is ascertained from the words and language used in the statute and if the language thereof is unambiguous and the words plain and clear, there is no occasion to resort to other means of interpretation.”); People v. Cintron, 13 Misc. 3d 833, 849 (Sup. Ct. Bronx County 2006) (stating that “the law is clear that the title of a statute has no substantive significance”; and “relying solely upon the title of the New York statute and legislative memoranda in support of [its] adoption” creates a “cabined reading of [the statute that] flies in the face of established rules of statutory construction and ignores the unequivocal [statutory language]”), aff’d, 46 A.D.3d 353 (2007), aff’d sub nom. People v. Knox, 12 N.Y.3d 60 (2009). In any event, the legislative history of the 1961 law cuts against the construction Respondents propose, not in their favor. As Supreme Court correctly concluded, “[t]he legislative history of Administrative Code §18-118, which was approved in 1961, establishes that although the state Legislature’s initial intent for the parkland was Shea Stadium, other uses were acceptable for a public purpose. . . . includ[ing], ‘improvement of trade or [sic] commerce.’” Avella, No. 100161/14, slip op. at 4-5 (RA. 2117-18). 46 Third, Respondents suggested that Section 18-118 authorizes only construction of a stadium (presumably Shea Stadium), and did so again in their leave opposition. Leave Opp. at 8-9. This contention is wrong on numerous counts. The statute authorizes far more than construction of a stadium: subsection (a) explicitly authorizes the City to enter into a wide range of agreements for use of the covered property for any enumerated purpose, whether tethered to the stadium or not. See Admin. Code § 18-118(a)-(b); supra Point IA. The open-ended flexibility conferred by this broad grant of authority would make no sense if the Legislature intended to authorize only the construction of Shea Stadium and nothing more.24 CONCLUSION For all these reasons, the Appellate Division erred in construing Admin. Code § 18-118, and in doing so misapplied the public trust doctrine. This Court should reverse the Appellate Division’s July 2, 2015 decision and dismiss the Complaint. 24 Respondents also argued below that the purpose served by the Willets West retail and entertainment center - “actual engagement in trade and commerce,” as they put it - does not serve the statutorily-enumerated purpose of “improvement of trade and commerce.” Resp. App. Br. 29-32. That contention is as nonsensical as it sounds. Respondents also cited cases regarding the gift and loan clause of the state Constitution, N.Y. Const. article VIII, Section 1, Resp. App. Br. 32-33, but freely acknowledged that they are not pressing any challenge under this provision. Respondents’ Reply Brief in Supreme Court at 16 n.8. Relevant pages of Respondents’ Reply Brief in Supreme Court are attached hereto in Addendum C. ADDENDUM TABLE OF CONTENTS Addendum A - NYC Administrative Code 18-118 Addendum B - Excerpts of Brief for Petitioners-Plaintiffs- Appellants in the Appellate Division-First Department (“Resp. App. Br.”) Addendum C - Excerpts of Petitioners-Plaintiffs’ Reply Memorandum of Law in Supreme Court ADDENDUM A Administrative Code of the City of New York Copyright 2016 New York Legal Publishing Corporation a New York Corporation, All Rights Reserved **** Current through March 2016 **** NYC Administrative Code 18-118 New York Administrative Code of the City of New York Title 18 Parks CHAPTER 1 DEPARTMENT OF PARKS AND RECREATION § 18-118 Renting of stadium in Flushing Meadow park; exemption from down payment requirements. a. Notwithstanding any other provision of law, general, special or local, the city, acting by the commissioner, with the approval of the board of estimate, is hereby authorized and empowered from time to time to enter into contracts, leases or rental agreements with, or grant licenses, permits, concessions or other authorizations to, any person or persons, upon such terms and conditions, for such consideration, and for such term of duration as may be agreed upon by the city and such person or persons, whereby such person or persons are granted the right, for any purpose or purposes referred to in subdivision b of this section, to use, occupy or carry on activities in, the whole or any part of a stadium, with appurtenant grounds, parking areas and other facilities, to be constructed by the city on certain tracts of land described in subdivision c of this section, being a part of Flushing Meadow park and situated in the borough of Queens, city and state of New York, title to which tracts is now in the city. Prior to or after the expiration or termination of the terms of duration of any contracts, leases, rental agreements, licenses, permits, concessions or other authorizations entered into or granted pursuant to the provisions of this subdivision and subdivision b of this section, the city, in accordance with the requirements and conditions of this subdivision and subdivision b of this section, may from time to time enter into amended, new, additional or further contracts, leases or rental agreements with, and grant new, additional or further licenses, permits, concessions or other authorizations to, the same or any other person or persons for any purpose or purposes referred to in subdivision b of this section. b. Any contract, lease, rental agreement, license, permit, concession or other authorization referred to in subdivision a of this section may grant to the person or persons contracting with the city thereunder, the right to use, Page 1 occupy or carry on activities in, the whole or any part of such stadium, grounds, parking areas and other facilities, (1) for any purpose or purposes which is of such a nature as to furnish to, or foster or promote among, or provide for the benefit of, the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce, including professional, amateur and scholastic sports and athletic events, theatrical, musical or other entertainment presentations, and meetings, assemblages, conventions and exhibitions for any purpose, including meetings, assemblages, conventions and exhibitions held for business or trade purposes, and other events of civic, community and general public interest, and/or (2) for any business or commercial purpose which aids in the financing of the construction and operation of such stadium, grounds, parking areas and facilities, and any additions, alterations or improvements thereto, or to the equipment thereof, and which does not interfere with the accomplishment of the purposes referred to in paragraph one of this subdivision. It is hereby declared that all of the purposes referred to in this subdivision are for the benefit of the people of the city and for the improvement of their health, welfare, recreation and prosperity, for the promotion of competitive sports for youth and the prevention of juvenile delinquency, and for the improvement of trade and commerce, and are hereby declared to be public purposes. c. The tracts of land referred to in subdivision a of this section are more particularly described as follows: 1. The area of land bounded on the north by the south side of Northern boulevard, on the east by the west side of One hundred twenty-sixth street, on the south by the north side of Roosevelt avenue, and on the west by the east side of Grand Central parkway. 2. The area of land bounded on the north by the south side of Roosevelt avenue, on the east by the west side of One hundred twenty-sixth street, on the south by lands of the city of New York occupied by the New York city transit authority, and on the west by the east side of Grand Central parkway, excepting from such area of land, the portion thereof fronting on Roosevelt avenue occupied by such authority as a substation. d. Notwithstanding the foregoing provisions of this section or the provisions of any other law, general, special or local, the commissioner, acting in behalf of the city, is hereby authorized and empowered, without the approval of the board of estimate, to enter into contracts, leases or rental agreements with or grant licenses, permits, concessions or other authorizations to any person or persons, upon such terms and conditions and for such consideration as may be agreed upon by the commissioner and such person or persons, for terms of duration, which, in the case of each such contract, lease, rental agreement, license, permit or other authorization, including renewals, shall not be in excess of one year, whereby such person or persons are granted the right to use, occupy or carry on activities in, the whole or any part of such stadium, grounds, parking areas and other facilities, for any purpose or purposes referred to in subdivision b of this section. Upon the expiration of the terms of duration of any of such contracts, leases, rental agreements, licenses, permits, concessions or other authorizations entered into or granted pursuant to the provisions of this subdivision, or within thirty days prior to such expiration or termination, the commissioner, in accordance with the requirements and conditions of this subdivision, acting in behalf of the city, and without the approval of the board of estimate, may from time to time enter into new, additional or further contracts, leases or rental agreements with, and may grant new, additional or further licenses, permits, concessions or other authorizations to, the same or any other person or persons for any purpose or purposes referred to in subdivision b of this section. e. Notwithstanding the provisions of section 107.00 of the local finance law, for the purpose of financing and paying the cost of the construction of such stadium, grounds, parking areas and facilities, and the construction of any additions, alterations or improvements thereto or to the equipment thereof, including a roof for such stadium and increased seating capacity therein, the city is hereby authorized and empowered, without providing from current funds any part of such cost or otherwise complying with the provisions of section 107.00 of such law, but upon compliance by the city with all other applicable provisions of the local finance law, to issue bonds and bond anticipation notes and to make expenditures from the proceeds of such bonds and bond anticipation notes or from any fund into which such proceeds are paid. Page 2 ADDENDUM B New York County Clerk’s Index No. 100161/14 New York Supreme Court APPELLATE DIVISION - FIRST DEPARTMENT In the Matter of the Application of SENATOR TONY AVELLA, THE CITY CLUB OF NEW YORK, NEW YORK CITY PARK ADVOCATES, QUEENS CIVIC CONGRESS INC, BONO SAWDUST SUPPLY CO INC, LEGACY WIRELESS INC, MORENA’S BOUTIQUE CORP, NEW YORK 128 REALTY CORP, SIJ INC, ST. JOHN ENTERPRISES INC, JOSEPH ARDIZZONE, ALFREDO CENTOLA, PAUL GRAZIANO, BENJAMIN M. HABER, MARTY KIRCHNER, NATALIA PERALTA and JOSE TORRES, Petitioners-Plaintiffs-Appellants, For a Judgment Pursuant to CPLR Art. 78 and General Municipal Law 51 and for a Declaration Pursuant to CPLR 3001, against CITY OF NEW YORK, BILL DE BLASIO, as Mayor of the City of New York, CITY COUNCIL OF THE CITY OF NEW YORK, NEW YORK CITY PLANNING COMMISSION, LIAM KAVANAGH, as Acting Commissioner, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, KYLE KIMBALL, as President of New York City Economic Development Corporation and Chair of the Board, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, QUEENS DEVELOPMENT GROUP LLC, RELATED WILLETS LLC, STERLING WILLETS LLC and QUEENS BALLPARK COMPANY LLC, Respondents-Defendants-Respondents. >> >> To Be Argued By: John R. Low-Beer BRIEF FOR PETITIONERS-PLAINTIFFS-APPELLANTS JOHN R. LOW-BEER 415 8th Street Brooklyn, New York 11215 718-744-5245 jlowbeer@yahoo.com Attorneys for Petitioners-Plaintiffs-Appellants Senator Tony Avella, The City Club of New York, New York City Park Advocates, Queens Civic Congress Inc, Bono Sawdust Supply Co Inc, Legacy Wireless Inc, Morena’s Boutique Corp, New York 128 Realty Corp, SIJ Inc, St. John Enterprises Inc, Joseph Ardizzone, Alfredo Centola, Paul Graziano, Benjamin M. Haber, Marty Kirchner, Natalia Peralta and Jose Torres LAW OFFICE OF LORNA B. GOODMAN 551 Madison Avenue, 7th Floor New York, New York 10022 212-223-7400 glornab@gmail.com Printed on Recycled Paper 7 3. Did the CPC and the City Council act arbitrarily and capriciously when, without any consideration of the legality of constructing the Willets West shopping mall to the west of CitiField, and also without any factual or legal basis for concluding that their approvals were “reasonably necessary” to achieving the goals of the Willets Point Special District to the east of CitiField, they approved zoning changes and special permits for the Special District that were required solely for the construction of Willets West? The Court below answered: No. STATEMENT OF FACTS At 1255 acres, the Park is the largest in Queens. 1 Often referred to as “Queens’ premier park,” 2 it contains the City’s largest lake, baseball, soccer, tennis, and cricket fields, an indoor, Olympic-sized pool and NHL-regulation ice rink, zoo, botanical garden, 3 science museum, 4 and a baseball stadium. 5 Without obtaining any governmental approvals other than the Mayor’s, Respondents intend to construct a regional shopping mall in the Park. The proposed mall, which they have named “Willets West,” will contain over 200 1 http://www.nycgovparks.org/parks/flushing-meadows-corona-park 2 http://www.qchron.com/monarch-of-queens-parks-flushing-meadows-has-it- all/article_cdd46308-0759-5326-bf61-7fcba725019c.html 3 The zoo and botanical garden are authorized by Admin. Code § 18-119. 4 The Hall of Science is authorized by Admin. Code § 18-120. 5 See http://www.nycgovparks.org/news/press-releases?id=21135 8 retail shops, as well as a food court and a multiplex cinema (A275, A430-35). Although Respondents call it an “entertainment/retail center,” the schematic plans reveal that this mall is in no way different from the ordinary mall (A430-35). The mall is to be built immediately to the west of CitiField stadium, on a parking area for CitiField that remains, like the stadium itself, dedicated parkland (A208, A267, A270). The New York Mets, who sublease this parking area from the City, have, for many years, offered it, during the off-season or when the Mets are away, for the very purposes - athletic events, entertainment, cultural betterment, and improvement of trade and commerce - that the 1961 law contemplated. It has been regularly used for wheelchair baseball games, marathon races, concerts, automobile shows, individual exercise and recreation, and similar activities (A28-29, A611-17). The parking area in question is a portion of a larger area (“the Property”) that comprises the CitiField stadium and its parking areas (A208). The Property, while remaining mapped as parkland, was set aside by the 1961 State special law, codified as Admin. Code § 18-118, enacted on a home rule message from the City to enable the City to finance and construct Shea Stadium and appurtenant parking lots, and lease these facilities to the New York Mets. This case turns on the interpretation of that law. 10 housing, including some affordable housing. 6 Willets Point became an urban renewal area and a Special District under the Zoning Resolution (A166, A268). Respondent New York City Economic Development Corporation (“EDC”) subsequently issued a request for proposals (“RFP”) that solicited proposals for Phase 1 of the redevelopment of Willets Point (A268, A213-65). In 2012, the City announced that it had selected a project (“the Project”) sponsored by the owners of the New York Mets baseball team and their real estate company, Sterling Equities, together with another large developer, The Related Companies, acting as a joint venture called Queens Development Group (A268). This Project was very different from that described in the RFP. The Project’s centerpiece was now the Willets West shopping mall to be built outside of Willets Point, on the other side of CitiField from Willets Point, in the CitiField parking area that was available to the Mets’ owners - but not to others who responded to the RFP - because they already leased that area from the City. This area, which is designated parkland, had not been included in the RFP. Nor is it within the Willets Point Special District or the urban renewal area. Phase 1 was now to be divided into two subphases. In Phase 1A, the mall would be built on the 30.7 acres of parkland already leased to the Mets, to the 6 http://www.nycedc.com/press-release/mayor-michael-bloomberg-announces-start-public- approval-processes-plans-willets-point 11 west of the stadium. Twenty-three of the 61 acres of Willets Point would also be developed in Phase 1. However, in Phase 1A, almost all of these 23 acres, formerly the site of many small businesses, would be used as a parking lot for cars displaced from the CitiField parking area where Willets West would rise (A209- 10). In Willets Point, only a narrow strip directly across 126th Street from CitiField would see construction of some retail and a hotel. The Phase 1 housing (2,490 units) would be postponed until Phase 1B, scheduled to begin in 2026 (A272-75). By that time, parking garages would be built west and south of the stadium to accommodate the parking needs of both the stadium and Willets West (A211, A275). However, under the agreement between the New York City Economic Development Corporation (“EDC”) and the developers, the developers can get out of building Phase 1B upon payment of $35 million in liquidated damages (A374) - a large sum in absolute terms, but a small one relative to the estimated $3 billion cost of the Project. As to Phase 2, which encompasses the remaining 38 acres of Willets Point and promises an additional 3,360 units of housing, no concrete action has yet been taken. Respondents sought no approvals whatsoever to construct a huge mall on mapped parkland, either from the State Legislature for the alienation of 12 parkland or from the City Council and the CPC, through ULURP, for the leasing of City property and a change in zoning. The only approvals Respondents sought and obtained were for changes pertaining to the Willets Point Special District, on the other side of CitiField, to permit, instead of the housing originally promised as part of the Willets Point Special District, an enormous parking area (A479-511, A551- 80). These approvals are based on a required finding by the CPC and the City Council, under the Special District zoning as amended, that construction of Willets West on the other side of CitiField is “reasonably necessary . . . to assist in achievement of the goals of the [Willets Point] Special District” (A507). From the outset, Respondents have sold the Project on this basis: that without the shopping mall, a “vibrant, mixed-use neighborhood” would never rise in Willets Point (A153, A172, A176, A189, A474-77). However, Respondents have never provided any support for this proposition, and indeed, the opposite would seem to be true. Once the mall is built, Respondents will have every reason not to build the housing which, by their own account, would require “prohibitive” City subsidies (A153). The businesses in the 23 acre Phase 1 area of Willets Point will thus have been displaced in favor of a parking area in Willets Point and a shopping mall on parkland, and nothing more. That mall will also displace the 29 purpose or purposes . . . .” The underlined words, omitted by the Court below, describe the facilities to be constructed and then used for the purposes that follow, including “improvement of trade and commerce.” Omitting those words leads the reader to the erroneous inference that it is not the stadium facilities, but rather the site itself, that can be used for “improvement of trade and commerce.” This interpretation is contrary to the plain language of the statute. 3. The Supreme Court Misconstrued the Term “Improvement of Trade and Commerce” to Encompass a Private Use Precluded by the Overriding Purpose of the Statute Compounding its errors, the Supreme Court misinterpreted the term “improvement of trade and commerce” to encompass anything and everything that improves trade and commerce, including constructing and operating a shopping mall. According to the Court below, the statute authorizes construction of a mall because the mall would advance the public purpose of “improvement of trade and commerce” (A15). Despite any superficial plausibility this overly broad definition of “improvement of trade and commerce” may have, it is not correct, nor is it consistent with the structure, language and purpose of the statute. “Improvement of trade and commerce” is a term of art that refers to activities and events commonly held in stadiums and convention centers to promote trade and 30 commerce, as distinct from actual engagement in trade and commerce. Whereas the former serves a public purpose, the latter generally serves a private one. After describing in Admin. Code § 18-118(a) what could be built, the Legislature listed in subsection (b) seven permissible purposes for which the stadium, once built, could be used: . . . any purpose or purposes which is of such a nature as to furnish to, or foster or promote among, or provide for the benefit of, the people of the city, recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce . . . . Admin. Code § 18-118(b) (emphasis added). 13 These are all purposes for which stadiums and convention centers are typically used, and they are explicitly declared by the statute to be public purposes. 14 The fact that “improvement of trade and commerce” is one in a list of seven typical stadium uses indicates that like the others, it denotes a typical use of 13 The full list of allowable purposes and illustrative examples reads: “recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce, including professional, amateur and scholastic sports and athletic events, theatrical, musical or other entertainment presentations, and meetings, assemblages, conventions and exhibitions for any purpose, including meetings, assemblages, conventions and exhibitions held for business or trade purposes, and other events of civic, community and general public interest.” Id. 14 “It is hereby declared that all of the purposes referred to in this subdivision are for the benefit of the people of the city and for the improvement of their health, welfare, recreation and prosperity, for the promotion of competitive sports for youth and the prevention of juvenile delinquency, and for the improvement of trade and commerce, and are hereby declared to be public purposes.” Admin. Code § 18-118(b). 31 a stadium and appurtenant facilities, not a shopping mall. 15 Once again, the rule of noscitur a sociis applies. Kese Industries, 15 N.Y.3d at 491; see also New York City Council v. City of New York, 4 A.D.3d 85, 95-96 (1st Dept. 2004), app. den. 4 N.Y.3d 701 (2004) (the term “bridge” in a statute’s list of public structures must be read as excluding the Highline, which is a private bridge). Any ambiguity in the term must be interpreted by reference to the other allowed uses, all of which are typical stadium uses that serve public purposes and do not involve trade or commerce, or construction. This point is confirmed by the statute’s specific examples of “improvement of trade and commerce.” The stadium’s lessee is granted “the right to use, occupy or carry on activities in, the whole or any part of such stadium, grounds, parking areas and other facilities” for the improvement of trade and commerce, “including meetings, assemblages, conventions and exhibitions held for business or trade purposes, and other events of civic, community and general public interest.” Admin. Code § 18-118(b)(1). “Meetings, assemblages, conventions and exhibitions” are all events that promote trade and commerce, but do not involve actually engaging in trade and commerce. 15 Black’s Law Dictionary (6th ed.) defines “appurtenant” as “belonging to; accessory or incident to; adjunct, appended , or annexed to; . . . A thing is ‘appurtenant’ to something else when it . . . is necessarily connected with the use and enjoyment of the latter.” A mall is not appurtenant to a stadium. 32 Case law confirms that “improvement of trade and commerce” is a public purpose like the other listed purposes, in contrast to engaging in trade and commerce, which is generally a private purpose. In Bordeleau v. State of New York, 18 N.Y.3d 305, 317-18 (2011), the Court of Appeals considered whether State appropriations of funds for the promotion of New York State products were for a constitutionally permitted public purpose. 16 The Court drew a distinction between government support for the promotion of trade and commerce and government support for commerce per se, holding that the former is a public purpose that the State could constitutionally support: “[A]ppropriations to the State Department of Agriculture and Markets to fund agreements with not-for- profit organizations for the promotion of agricultural products grown or produced in New York, namely apple and grape crops and products” were constitutional, the Court held, because they served the predominantly public purpose of enhancing “the State’s competitiveness to foster growth in this important sector of the State’s economy,” and “any private benefit is merely incidental.” Id. In so holding, the Court implicitly distinguished between State appropriations to promote an industry as a whole, which are constitutional, and appropriations to a particular business, which would be unconstitutional gifts to a private entity. 16 Bordeleau interprets Article VII, § 8, which imposes on the State itself the same restrictions with respect to gifts and loans as are imposed on localities by Article VIII, § 1. Id. at 317 n.3. 33 Similarly, in Kato v. Ishihara, 360 F.3d 106, 111-12 (2d Cir. 2004), the Second Circuit rejected the contention that the promotion of trade and commerce by the New York office of the Tokyo Metropolitan Government was a private commercial activity not protected by foreign sovereign immunity. Rather, the Court held, it is “a basic - even quintessential - governmental function” that involves “product promotion, . . . general business development assistance, [and] participation in trade shows,” all of which are governmental activities. The activities described in Admin. Code § 18-118(b)(1) are precisely the kind described in Bordeleau and Kato. None of them involve actually engaging in trade and commerce. The Legislature limited the permissible uses of the stadium to public purposes, and excluded trade and commerce per se, for a reason: to ensure that the City’s construction, financing and leasing of the stadium would not violate Article VIII, § 1 of the Constitution, which bars the City from directly financing or appropriating money for private purposes. This is confirmed by a City memorandum in the bill jacket (A628-32). Admin. Code § 18-118 was proposed by the City and enacted by the State Legislature on a home rule message from the City (A642). The City memorandum, based on research by the Corporation Counsel (A628), reviewed 34 decisions from numerous other states in which the same constitutional issue had been raised, and concluded that City financing and construction of the stadium would be constitutional provided, however, that its use was limited to public purposes, such as those listed in Admin. Code § 18-118(b). 17 The City memorandum quoted 15 McQuillin, Municipal Corporations (3rd ed.) as follows: Among the public municipal purposes for which it has been held that money may be expended or indebtedness incurred are the following: * * * construction of an auditorium, stadium, public hall or civic building to be used for the holding of public meetings, gatherings and conventions for the discussion of public questions, and to provide suitable meeting places for educational, moral, musical, industrial, labor, athletic and other purposes; * * *. (A630). This list of allowable purposes, which includes “industrial” and “labor” purposes, is similar to that of Admin. Code § 18-118(b). The history and content of the list of allowable purposes in § 18- 118(b), including “improvement of trade and commerce,” show that these limitations of the purposes for which the stadium facilities could be used were 17 The case law concerning public financing of stadiums is further discussed in, for example, City of Springfield v. Dreison Invs., 11 Mass. L. Rep. 379 (Superior Ct. Mass. 2000) (reviewing cases and holding that city’s use of eminent domain, without legislative authorization, for the purpose of leasing the land to a private entity to build a baseball stadium was unconstitutional because “[l]egislation . . . is necessary in order to define the public purpose”); King County v. Taxpayers of King County, 133 Wn.2d 584 (Wash. S. Ct. 1997) (stadium financing does not violate Washington constitution’s Gifts and Loans provision); Friends of the Parks v. Chicago Park District, 203 Ill.2d 312 (Ill. S. Ct. 2003) (public financing of stadium held constitutional); Libertarian Party v. State, 199 Wis. 2d 790 (Wis. S. Ct. 1996) (upholding Wisconsin Stadium Act). ADDENDUM C SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------------ x Index No. 100161-2014 (Mendez, J.) SEN. TONY AVELLA; THE CITY CLUB OF NEW YORK; NEW YORK CITY PARK ADVOCATES; QUEENS CIVIC CONGRESS, INC.; et al., Petitioners-Plaintiffs, For a Judgment Pursuant to CPLR Art. 78 and General Municipal Law § 51 and for a Declaration Pursuant to CPLR 3001 -against- THE CITY OF NEW YORK; et al., Respondents-Defendants. ------------------------------------------------------------------------------ x PETITIONERS-PLAINTIFFS’ REPLY MEMORANDUM OF LAW Dated: New York, New York May 16, 2014 JOHN R. LOW-BEER 415 8th Street Brooklyn, New York 11215 jlowbeer@yahoo.com (718) 744-5245 LORNA B. GOODMAN Law Office of Lorna Goodman 551 Madison Avenue, 7th floor (212) 223-7400 lornag@optonline.net Attorneys for Petitioners Respondents’ only argument with respect to the statute is that the phrase “improvement of trade and commerce,” contained in Admin. Code § 18-118(b)’s list of purposes for which the stadium and parking areas can be used, encompasses not only the improvement or promotion of trade and commerce, but actually engaging in trade and commerce. There are numerous reasons why Respondents’ interpretation of this phrase is untenable. 1. The Public Activity of “Improvement of Trade and Commerce,” Which the Statute Allows in the Stadium and Appurtenant Facilities, Does Not Include the Private Activity of Engaging in Trade and Commerce by Owning and Operating a Shopping Mall. The City argues that the phrase “improvement of trade and commerce” subsumes actually engaging in trade and commerce, and calls the distinction between promoting trade and commerce, on the one hand, and engaging in trade and commerce, on the other, “illogical.” City Mem. at 19. It argues that conducting trade and commerce is permissible because that activity stimulates and improves trade and commerce. City Mem. at 17-19; see also QDG Mem. at 26. Even if engaging in trade and commerce has the incidental effect of improving trade and commerce, it is not, per se, “the improvement of trade and commerce.” Respondents’ sleight of hand cannot eliminate the distinction between efforts to improve trade and commerce, which do not involve buying and selling anything, and actually engaging in trade and commerce, which consists of buying and selling goods and services. If there were no distinction between “the improvement of trade and commerce” and “trade and commerce” itself, one might ask why the Legislature did not simply list “trade and commerce” as a permissible purpose for which the stadium and parking areas could be used, rather than “improvement of trade and commerce.” It is a basic principle of statutory interpretation that “meaning and effect should be given to every word of a statute. ‘Words are 15 not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning.’” Leader v. Maroney, 97 N.Y.2d 95, 104 (2001). That principle is applicable here, especially because, as shown below, the Legislature had a clear purpose in distinguishing between “improvement of trade and commerce,” which is a public activity, and “engaging in trade and commerce,” which is a private activity. In order to ensure that the City’s financing and construction of a stadium would not violate Article VIII § 1 of the New York Constitution (the “Gifts and Loans” provision), the Legislature needed to prohibit all activities that served private purposes, except insofar as such activities were incidental to the public purposes of the stadium.8 Far from being “illogical,” the distinction between the promotion of trade and commerce and engaging in trade and commerce is obvious and well-known in the law. Government frequently improves or promotes trade and commerce by building convention centers, as well as stadiums that may be used to hold “conventions and exhibitions for business or trade purposes,” such as are mentioned in Admin. Code § 18-118(b). These activities do not involve the buying and selling of goods and services. In contrast, government does not generally engage in trade and commerce, other than, of course, in its proprietary capacity as a purchaser of goods and services. The Second Circuit has specifically held that the promotion of trade and commerce is not a commercial activity. Rather, it is “a basic - even quintessential - 8 Petitioners do express any opinion as to whether the Willets West project, in which subsidies are apparently provided through independent agencies such as the New York City Industrial Development Agency rather than by the City directly, is unconstitutional. The constitutionality of Willets West is not at issue here. Rather, the question is whether the Legislature, when it enacted Admin. Code § 18-118 with the intent of rendering constitutional the City’s financing and construction of a stadium, also authorized construction of a private commercial project such as a shopping mall. Without the clear and specific authorization of the Legislature, construction of a mall in parkland is prohibited. 16