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.

Brief

N.Y.April 25, 2017

APL-2015-00298 New York County Clerk’s Index No. 100161/14 Court of Appeals 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 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, and QUEENS DEVELOPMENT GROUP, LLC, RELATED WILLETS, LLC, STERLING WILLETS LLC and QUEENS BALLPARK COMPANY, L.L.C., Respondents-Defendants-Appellants. >> >> BRIEF FOR PETITIONERS-PLAINTIFFS-RESPONDENTS To Be Argued By: John R. Low-Beer Time Requested: 15 Minutes JOHN R. LOW-BEER 415 8th Street Brooklyn, New York 11215 718-744-5245 Attorneys for Petitioners-Plaintiffs-Respondents Date Completed: October 7, 2016 LAW OFFICE OF LORNA B. GOODMAN 551 Madison Avenue, 7th Floor New York, New York 10022 212-223-7400 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... iv PRELIMINARY STATEMENT ............................................................................... 1 QUESTIONS PRESENTED ...................................................................................... 8 STATEMENT OF FACTS ........................................................................................ 9 THE DECISIONS BELOW ..................................................................................... 16 EVENTS AFTER THE APPELLATE DIVISION DECISION .............................. 18 ARGUMENT ........................................................................................................... 21 POINT I THE COURT BELOW CORRECTLY HELD THAT ADMIN. CODE § 18-118 DID NOT AUTHORIZE CONSTRUCTION OF A SHOPPING MALL IN THE PARK ................................................ 21 A. The Developers and the City Ignore the Public Trust Doctrine’s Requirement That Any Alienation Be Specific, Explicit, and Unambiguous. ................................................. 21 1. The Public Trust Doctrine Requires Specificity and Explicitness. ........................................................................... 21 2. The Developers’ and the City’s Approach to the Interpretation of an Alienation Statute Makes a Mockery of the Public Trust Doctrine. ......................................... 25 B. In Nine Specific Ways, the Structure and Plain Language of the Statute Belies the Developers’ and the City’s Interpretation. ...................................................................................... 28 1. The Developers’ and the City’s Interpretation Is Inconsistent With the Structure of the Statute. ............................. 28 ii 2. The Plain Language of the Statute Specifies Allowable Uses of the Stadium and Related Facilities, Not of “the Parkland,” “the Property,” “the Land,” or “the Parcel.” .......................................................... 29 3. The Statute’s Title Confirms That the Lessee Is Authorized Only to Use the Stadium for the Specified Purposes........................................................................ 31 4. The Specificity With Which Subsections (a) and (e) Describe What the City May Construct Is Inconsistent With the Argument That the Purposes Provision Authorizes Construction. ............................................. 32 5. Admin. Code § 18-118(b)’s List of Permissible Purposes Does Not Encompass Construction and Operation of a Private Commercial Shopping Mall. .................... 34 6. The Term “Improvement of Trade and Commerce” Does Not Encompass a Shopping Mall. ....................................... 36 7. QDG’s and the City’s Interpretation of the Statute Is Belied By the Fact That All of the Statute’s Examples of Allowable Uses Are Events Typically Held in Stadiums, Not Structures. ................................................ 40 8. In the Phrase “a Stadium, with Appurtenant Grounds, Parking Areas and Other Facilities,” “Other Facilities” Does Not Encompass a Shopping Mall. ..................... 41 9. QDG’s Interpretation Renders Subsection (b)(2) Superfluous. .................................................................................. 44 C. The Legislature’s Intent, Which Is the “Great and Controlling Principle” of Statutory Interpretation, Was to Ensure that Use of the Stadium Facilities Would Not Violate Article VIII, § 1 of the Constitution, the Gifts and Loans Provision. ........................................................... 45 D. Other Stadium Statutes, Including the Yankee Stadium Statute, Contain Identical or Similar Purposes Provisions. ................ 49 iii E. There Is No Support for the City’s Contention That the Legislature Authorized Non-Park Use of the Property. ...................... 52 POINT II ADMIN. CODE § 18-118 DOES NOT EXEMPT THE CITY AND THE DEVELOPERS FROM ULURP AND ZONING ................... 54 A. This Court May Either Affirm or Remit to the Appellate Division on Petitioners’ ULURP, Zoning, and “Arbitrary and Capricious” Points ........................................................................ 54 B. Admin. Code § 18-118 Did Not Supersede the Charter or the Zoning Resolution. ........................................................................ 59 CONCLUSION ........................................................................................................ 66 iv TABLE OF AUTHORITIES Page(s) Cases Aldrich v. City of New York, 208 Misc. 930 (S. Ct. Queens Co. 1955), aff’d., 2 A.D.2d 760 (2d Dep’t 1956) ........................................................................................... 23, 24 American Dock Co. v. City of New York, 174 Misc. 813, affd. 261 A.D. 1063, affd. 286 N.Y. 658 ................................. 23 Aquamsi Land Co. v. Cape Girardeau, 346 Mo. 524 (Mo. S. Ct. 1940) ......................................................................... 53 Avella v. City of New York, 131 A.D.3d 77 (1st Dept. 2015) .................................................................passim Baldwin Union Free School District v. County of Nassau, 105 A.D.2d 113 (2d Dept. 2013) ...................................................................... 65 Besser v. E. R. Squibb & Sons, Inc., 146 A.D.2d 107 (1st Dept. 1989), aff’d, 75 N.Y.2d 847 (1990) .......... 46, 60-61 Bluebird Partner L.P. v. First Fid. Bank N.A., 97 N.Y.2d 456 (2002) ....................................................................................... 58 Bordeleau v. State of New York, 18 N.Y.3d 305 (2011) ................................................................................. 37, 46 Brooklyn Park Comm’rs v. Armstrong, 45 N.Y. 234 (1871) ........................................................................................... 53 Buckhout v. City of Newport, 68 R.I. 280 ......................................................................................................... 23 City of Springfield v. Dreison Invs., 11 Mass. L. Rep. 379 (Superior Ct. Mass. 2000) ............................................. 48 Consolidated Edison Co. v. Town of Red Hook, 60 N.Y.2d 99 (1983) ......................................................................................... 65 v Council of City of New York v. Giuliani, 183 Misc. 2d 799 (S. Ct. Queens Co. 1999) ..................................................... 62 Council of the City of New York v. Giuliani, 93 N.Y.2d 60 (1999) ....................................................................... 30, 32, 45, 49 Council v. Giuliani, 172 Misc. 2d 893 (S. Ct. Queens Co. 1979) ......................................... 61, 62-63 County of Erie v. Kerr, 49 A.D.2d 174 (4th Dept. 1975) ................................................................. 48, 51 Friends of the Parks v. Chicago Park District, 203 Ill.2d 312 (Ill. S. Ct. 2003) ......................................................................... 48 Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 (2001) (Kaye, C.J.) ....................................................... 22, 23, 25 Friends of Van Voorhis Park. v. City of New York, 216 A.D.2d 259 (1st Dept. 1995) (affirming Friends of Van Vorhees Park, Inc. v. The City of New York, Index No. 134528/93 (S. Ct. N.Y. Co. Jan. 23, 1995)................................................................................................ 53, 63-65 Idaho v. Coeur D’Alene Tribe, 521 U.S. 261 (1997) .......................................................................................... 25 Kato v. Ishihara, 360 F.3d 106 (2d Cir. 2004) .............................................................................. 38 Kaufmann’s Carousel, Inc. v. City of Syracuse Indus. Dev. Agency, 301 A.D.2d 292 (4th Dept. 2002) ............................................................... 38, 40 Kese Industries v Roslyn Torah Foundation, 15 N.Y.3d 485 (2010) ....................................................................................... 34 King County v. Taxpayers of King County, 133 Wn.2d 584 (Wash. S. Ct. 1997) ................................................................. 48 Lake Co .Water & Light Co. v.Walsh, 160 Ind. 32 ........................................................................................................ 23 vi Leader v. Maroney, 97 N.Y.2d 95 (2001) ......................................................................................... 41 Libertarian Party v. State, 199 Wis. 2d 790 (Wis. S. Ct. 1996) ............................................................ 48, 53 Martin v. Lessee of Waddell, 41 U.S. 367 (1842) ............................................................................................ 25 Matter of City of New York [Piers Old Nos. 8-11], 228 N.Y. 140 ..................................................................................................... 23 Mile High Enterprises, Inc. v. Dee, 192 Colo. 326 (Co. S. Ct. 1977)........................................................................ 53 Miller v. New York, 15 N.Y.2d 34 (1964) ......................................................................................... 52 Morris v. Board of Estimate, 489 U.S. 688 (1989) .......................................................................................... 62 Murphy v. Erie County, 28 N.Y.2d 80 (1971) ......................................................................................... 48 N.Y. County Lawyers’ Assn. v. Bloomberg, 19 N.Y.3d 712 (2012) ....................................................................................... 28 N.Y. Tel. Co. v. Nassau County, 1 N.Y.3d 485 (2004) ................................................................................... 57-58 Nash Metalware Co. v. Council of N.Y., 14 Misc. 3d 1211(A) (S. Ct. N.Y. Co. 2006) .................................................... 65 New York City Council v. City of New York, 4 A.D.3d 85 (1st Dept. 2004), app. den. 4 N.Y.3d 701 (2004) ........................ 35 P.M.S. Assets v. Zoning Bd. of Appeals, 98 N.Y.2d 683 (2002) ....................................................................................... 58 Parochial Bus Systems, Inc. v. Bd. of Education, 60 N.Y.2d 539 (1983) .......................................................................... 54-55, 59 vii People ex rel. Swan v. Doxsee, 136 A.D. 400 (2d Dept. 1910), aff’d, 198 N.Y. 605 (1910) ............................. 24 People v. English, 242 A.D.2d 940 (4th Dept. 1997) ..................................................................... 32 People v. Garson, 6 N.Y.3d 604 (2006) ......................................................................................... 49 People v. Illardo, 48 N.Y.2d 408 (1979) ....................................................................................... 42 People v. Martell, 16 N.Y.2d 245 (1965) ....................................................................................... 35 People v. New York & Staten Island Ferry Company, 68 N. Y. 71 (1877) ............................................................................................ 24 Rocovich v Consolidated Edison Co., 78 N.Y.2d 509 (1991) ....................................................................................... 41 Save Coney Island, Inc. v. City of New York, 27 Misc. 3d 122[A] (S. Ct. N.Y. Co. 2010) ...................................................... 39 Schiavone v City of New York, 92 NY2d 308 (1998) ......................................................................................... 59 Sebring v. Quackenbush, 120 Misc. 609, 199 N.Y.S. 245, affd. 214 A.D. 758 ........................................ 23 SFX Entertainment v. City of New York, 297 A.D.2d 555 (1st Dept. 2002) ...................................................................... 53 State ex rel. Excelsior Springs v. Smith, 336 Mo. 1104 .................................................................................................... 23 Sun Co. v. City of Syracuse Indus. Dev. Agency, 209 A.D.2d 34 (4th Dept. 1995) ................................................................. 38, 39 Turnpike Woods, Inc. v. Stony Point, 70 N.Y.2d 735 (1987) ....................................................................................... 65 viii Walton v. New York State Dept. of Correctional Servs., 8 N.Y.3d 186 (2007) ......................................................................................... 58 Waybro v. Board of Estimate, 67 N.Y. 2d 349 (1986) .......................................................................... 60-61, 66 Williams v. Gallatin, 229 N.Y. 248 ............................................................................................... 23, 25 Constitutional Provisions N.Y. Const., Art. VII, § 8 ............................................................................. 37, 38, 46 N.Y. Const., Art. VII, § 8(3). ................................................................................... 38 N.Y. Const., Art. VIII, § 1 ................................................................................passim Statutes Admin. Code § 18-118 ......................................................................................passim Admin. Code § 18-128 ....................................................................................... 49-50 City Charter, Chapter 8 ............................................................................................ 61 City Charter § 197-c(a)(10) ..................................................................................... 59 City Charter § 200 .................................................................................................... 59 City Charter § 201 .................................................................................................... 59 City Charter § 384(b)(5) .................................................................................... 59, 62 General Municipal Law § 51 ................................................................................... 16 General Municipal Law § 862(2) ............................................................................. 38 Laws of 1975, Chapter 512 ...................................................................................... 61 Zoning Resolution § 11-13 .......................................................................... 16, 55, 59 ix Session Laws L. 1961, Ch. 729 ....................................................................................................... 32 L. 1968, Ch. 252, § 2.......................................................................................... 48, 51 L. 1984, Ch. 836, § 1................................................................................................ 63 L. 2005, Ch. 238, § 1................................................................................................ 52 Other Authorities 10 McQuillin on Municipal Corporations [3d ed.], pp. 77, 82 ................................ 23 Black’s Law Dictionary (6th ed.) ....................................................................... 42, 43 City Council Resolution 0927-2015 (http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=25361 46&GUID=6AD88CD5-837A-47C8-AA43- A30D737FDA79&Options=ID|Text|&Search=0927) ...................................... 19 http://nypost.com/2016/07/21/islanders-talking-with-mets-about- building-arena-next-to-citi-field/ ...................................................................... 20 http://www.bloomberg.com/news/articles/2016-07-21/nhl-s-islanders- said-considering-a-move-to-queens-with-mets-help ........................................ 20 http://www.nycedc.com/press-release/mayor-michael-bloomberg- announces-start-public-approval-processes-plans-willets-point ....................... 11 http://www.nytimes.com/2014/10/12/realestate/35-million-condo-in- the-time-warner-center.html?_r=0 ...................................................................... 7 http://www.nytimes.com/2016/10/07/nyregion/auto-shop-owners- forced-out-of-willets-point-struggle-to-rebuild-in-the- bronx.html? r=0 (N.Y. Times, Oct. 6, 2016). .................................................. 10 N.Y. Daily News, “Willets Point Development Project Not Worth the Fight, De Blasio Says While Pointing Out It Was a Bloomberg Administration Plan” (Aug. 20, 2015) (http://www.nydailynews.com/news/politics/willets-point-project- not-worth-fight-de-blasio-article-1.2332757) ................................................... 19 x N.Y. Times, “New York City Declines to Fight in Court for Complex Near Citi Field” (Aug. 19, 2015) (http://www.nytimes.com/2015/08/20/nyregion/new-york-city- declines-to-fight-in-court-for-complex-near-citi- field.html?emc=eta1& r=0) .............................................................................. 19 Politico Pro, “City Ended Talks on Willets Point Appeal Just Minutes Before Deadline” (Aug. 20, 2015) (http://www.capitalnewyork.com/article/city- hall/2015/08/8574882/city-ended-talks-willets-point-appeal-just- minutes-deadline ) ............................................................................................. 19 PRELIMINARY STATEMENT The principal issue presented by this case is whether a State law enacted in 1961 to enable the City to finance, construct, and lease Shea Stadium in Flushing Meadows-Corona Park (“the Park”) provides the specific and explicit legislative authorization that the common law public trust doctrine requires for the construction of a 200-store regional shopping mall in that same Park. At no point did the City or the Queens Development Group (“QDG” or “the Developers”)1 ever seek or obtain any authorization from the Legislature to build a shopping mall in the Park. Nor did they comply with the uniform land use review process (“ULURP”) required by the New York City Charter, or obtain the necessary zoning action, to lease and build a shopping mall. The City and the Developers justify all of these failures by one argument. According to them, the 1961 law, codified as N.Y.C. Admin. Code § 18-118, gave them the specific and explicit authorization to build a shopping mall that is required by the public trust doctrine, and was indeed so specific in authorizing a shopping mall as to supersede all the procedural and substantive requirements of the Charter and the New York City Zoning Resolution. Reversing 1 Respondent-Appellant QDG is a joint venture created for this Project (defined below) by two real estate development companies, The Related Companies and Sterling Equities, the latter of which is owned by the Wilpon family who also own the New York Mets. 2 the decision of the Supreme Court, the Appellate Division correctly rejected this argument. The public trust doctrine is an ancient and unyielding common law rule that prohibits the sale or lease of parkland – an “alienation” – for any purpose, including even a park purpose, without the explicit, specific and unambiguous authorization of the State Legislature. That authorization is lacking here. Analysis of the structure of the 1961 law, Admin. Code § 18-118, its plain language and the Legislature’s overall intent in enacting it, evidenced by the extensive legislative history, makes pellucid that the sole purpose of that law was to enable the City to finance, construct, and lease a stadium and related facilities. Contrary to the City’s contention, that law did not authorize any non-park uses, and it certainly did not authorize a shopping mall. The Developers and the City barely touch on the text of the statute, quoting only snippets taken out of context – and no wonder, because it belies their interpretation. Subsection (a) of the statute addresses what the City can construct – “a stadium, with appurtenant grounds, parking areas and other facilities” – and further provides that the City may lease this stadium for the purposes set forth in subsection (b)(1). In a provision referred to below as the “purposes provision,” subsection (b)(1) lists those public purposes – “recreation, entertainment, 3 amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce” – for which the lessee may use the stadium facilities that the City will construct. By a deceptive paraphrase, QDG and the City present subsection (b)(1) as allowing the lessee to construct anything that would serve any of those purposes, including, according to them, a shopping mall. That subsection does not allow the lessee to use “the covered property” or “the parkland in Willets West” or “the land” or “the parcel” for the listed purposes. The lessee is only allowed to use “a stadium, with appurtenant grounds, parking areas and other facilities” for those purposes, not “the parkland” or “the parcel” or any other substituted words. Moreover, the lessee is only allowed to “use” the stadium facilities, not to “construct” anything. By these sleights of hand, substituting one direct object for another, and equating the word “use” with “construct,” the Developers and the City drastically change the meaning of the purposes provision. Their reading would permit a lessee to demolish any or all of the stadium facilities now on “the parcel” and replace them with almost any other structure, including a shopping mall. This reading is both wrong and disingenuous. 4 In numerous other ways, too, the text of the purposes provision forecloses QDG’s and the City’s interpretation. For example, the purposes for which the statute allows the lessee to use the stadium facilities confirm that this list is about use of the stadium facilities, not about construction. They are all associated with public uses that traditionally take place in stadiums. Moreover, the list of purposes is followed by illustrative examples, all of which are temporally limited events that are traditionally held in stadiums. Even if, as the City contends, mating a shopping mall with a baseball stadium is a natural pairing of two of the nation’s favorite national pastimes, a private commercial shopping mall does not fit within the statute’s list of public purposes, much less purposes likely to be authorized within a park. There is a reason, having nothing to do with construction, why the City included the purposes provision in this statute, which the City itself drafted and forwarded to the Legislature. A City memorandum in the bill jacket, which QDG and the City studiously ignore, explains that the purposes provision was included to ensure that the uses of this City-financed and City-built stadium would not violate Article VIII, § 1 of the Constitution, which prohibits municipalities from giving gifts or lending their credit to private entities. To avoid this prohibition, the drafters limited the uses of the stadium to those public purposes for 5 which stadiums are typically used, and that have been recognized as constitutionally permissible in this context. This explains why other laws authorizing stadiums – including the Yankee Stadium law relied on by the Developers and the City, and the laws authorizing the Erie County stadium and the Louis Armstrong Tennis Stadium, also in Flushing Meadows-Corona Park – have virtually identical purposes provisions. Three of these stadiums are built in parks. It is unlikely – and would be devastating to the public’s interest in preserving parkland – that the Legislature in each of these four instances was sub rosa authorizing the construction of shopping malls. Petitioners also challenged Willets West on the grounds that its proponents failed to obtain required approvals of it, including a zoning change, from the City Council and other City bodies through ULURP, and that the related approvals for Willets Point were arbitrarily and capriciously granted. The Appellate Division did not reach these claims. The City now argues that Petitioners cannot argue them in this Court because they did not cross-appeal. Because the Appellate Division reversed the Supreme Court in toto and its decision was in no way adverse to Petitioners, they were not aggrieved and had no grounds for cross-appeal. Therefore, Petitioners can argue these points and this Court can 6 decide them. Alternatively, this Court should remit the matter to the Appellate Division so that it can consider those causes of action in the first instance. On Petitioners’ points concerning ULURP and zoning, the Developers and the City argued below that the statute so specifically authorized a shopping mall as to obviate and supersede all ULURP and zoning requirements. This argument is ludicrous on its face. In this Court, the City simply argues, with no support whatsoever in the text, that the statute permitted construction of a wide range of buildings and was intended to supersede local land use law. Admin. Code § 18-118 did not authorize a shopping mall at all, much less with the specificity required to supersede local land use review requirements. The Mayor’s Office itself has said that the City Law Department “didn’t believe they’d win” this case. Lacking any serious legal arguments, the Developers and the City focus on the purported benefits that will accrue to the public from the alleged creation of a “vibrant mixed-use neighborhood” in Willets Point. The public trust doctrine directs that it is for the Legislature, not the courts, to decide whether building a shopping mall in the Park is a good idea. The only question before this Court is whether it is legal. Moreover, it may be questioned whether the promised benefits will be forthcoming. The Developers have stated that building housing in Willets Point 7 would require “prohibitive subsidies,” and they can avoid their obligation to build this $2 billion portion of the Project by paying liquidated damages of only $35 million – the cost of a single apartment in Related’s Time Warner Center.2 The City’s renewed backing of this Project comes after the Mayor and the Deputy Mayor very publicly withdrew the City’s support for it in August 2015, and did not seek leave to appeal to this Court, precisely because, they said, they did not believe the housing would ever be built. The Developers too, tipped their hand just three months ago when the owners of the New York Mets, who are co-venturers in QDG, floated a plan to build a hockey arena in the area where the housing is promised. But even if the Developers and the City are able to renegotiate and restructure the present Project so that it is more likely to lead to housing in Willets Point, this goal cannot be attained by running roughshod over the law. 2 See http://www.nytimes.com/2014/10/12/realestate/35-million-condo-in-the-time-warner- center.html?_r=0 . 8 QUESTIONS PRESENTED 1. Does the Legislature’s adoption of a special law in 1961 authorizing the City to finance, construct, and lease a stadium in the Park, along with “appurtenant grounds, parking areas and other facilities,” to be used for athletic events, entertainment, cultural uses, and the “improvement of trade and commerce” constitute the specific and explicit authorization to demolish the stadium’s parking areas and construct a shopping mall on them that the public trust doctrine requires? The Court below answered: No. 2. Where, according to the Developers and the City, this same law authorized construction to meet “a broad array” of “wide-ranging” purposes, and where it explicitly required compliance with then-applicable local law approval procedures, did it so specifically authorize a shopping mall as to conflict with, and therefore supersede, local law ULURP and zoning requirements? The Court below, while not explicitly reaching this question, held that the law did not authorize construction of a shopping mall at all, and thereby implicitly answered: No. 9 STATEMENT OF FACTS The Developers intend to construct a regional shopping mall on parkland without having obtained authority from the State Legislature for the alienation of that parkland, and also without having obtained any zoning change or the required approvals of new leases and new zoning through ULURP. The proposed mall, which they have named “Willets West,” would contain over 200 retail shops, as well as a food court and a multiplex cinema (A275, A430-35). Although the Developers and the City call it a “retail and entertainment center,” the schematic plans reveal that this mall is in no way different from the ordinary regional mall with a large multiplex cinema (A430-35). The mall is to be built immediately to the west of CitiField stadium, on a parking area for CitiField that is concededly, like the stadium itself, dedicated parkland (A208, 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 same public purposes – athletic events, entertainment, cultural betterment, and improvement of trade and commerce – that the 1961 law contemplated. It has been regularly used by the public, including some Petitioners, for wheelchair baseball games, marathon races, concerts, automobile shows, individual exercise and recreation, and similar activities (A28-29, A611-17). 10 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, to enable the City to finance and construct Shea Stadium and appurtenant parking lots, and to lease these facilities to the New York Mets. In 2006, the City entered into new lease arrangements with the owners of the Mets that allowed for the demolition of Shea Stadium and its replacement with CitiField, just to the east of the old Shea Stadium site (A436-71). No legal challenges were brought. CitiField, completed in 2009, was built on the former Shea Stadium parking area, and borders directly on Willets Point, located to the east of the stadium, across 126th Street (A208). Willets Point is a 61-acre tract that, prior to recent City buyouts, was home to some 260 industrial and auto repair businesses (A286).3 This area has long struggled with a peculiar relationship with the rest of the City. Its property 3 Last week, the New York Times reported that the Sunrise Cooperative, a cooperative of auto repair businesses formed to enable them to move collectively to a new facility in the Hunts Point section of the Bronx, had filed for bankruptcy. Although the new facility into which they were supposed to move is nearly completed, the City, which had promised to support their relocation, has so far refused to provide an additional $3 million needed to cover their costs. See http://www.nytimes.com/2016/10/07/nyregion/auto-shop-owners-forced-out-of-willets-point- struggle-to-rebuild-in-the-bronx.html?_r=0 (N.Y. Times, Oct. 6, 2016). 11 owners paid taxes, and the businesses there employed over 1,700 workers (A286), but Willets Point received virtually no services. Its unpaved roads are splotched with potholes (A77). It has no sewers or streetlights (A35, A160-61). Numerous businesses continue to operate in the northeastern portion of Willets Point, the so-called “Phase II” area, for which no redevelopment is immediately contemplated. Among those businesses are Respondent Bono Sawdust Supply, Inc., a manufacturer of sweeping compounds, pet litter, animal bedding, and absorbent products which has been located in Willets Point for 69 years, and Respondent St. John Enterprises, Inc., which has operated a general contracting business in Willets Point for over 30 years. In 2008, following a ULURP process, the City obtained final approval for a redevelopment plan for Willets Point that Mayor Bloomberg said would “transform what is now a highly contaminated area into a vibrant, mixed-use neighborhood,” slated to include a hotel, retail stores, a school and a mix of housing, including some affordable housing.4 Willets Point was designated an urban renewal area and a Special District under the Zoning Resolution (A166, A268). The redevelopment plan did not include the parkland on which Willets West is proposed to be sited. 4 http://www.nycedc.com/press-release/mayor-michael-bloomberg-announces-start-public- approval-processes-plans-willets-point 12 Respondent New York City Economic Development Corporation (“EDC”) subsequently issued a request for proposals (“RFP”) that solicited proposals for an area designated as Phase 1 of the redevelopment of Willets Point, comprised of a 23-acre portion of the 61 acres of Willets Point immediately to the east of CitiField. (A268, A213-65). The RFP did not call for proposals to do anything with respect to the parkland on which Willets West is projected to be built. 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 the joint venture called QDG (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, in the stadium 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 had not been included in the RFP. It is not within the Willets Point Special District or the urban renewal area. It is, as QDG and the City concede, parkland. 13 Phase 1 was now to be divided into two subphases. In Phase 1A, originally scheduled to be completed by the end of 2025, the mall would be built on the 30.7 acres of parkland already leased to the Mets, to the west of the stadium. Also in Phase 1A, the 23 acres of Willets Point closest to CitiField would be remediated. This remediation would not be funded by QDG, as QDG suggests (QDG Br. 19-20), but rather by the City through a $99,990,000 capital grant to QDG (A375, A402, A418, A424.) After remediation, 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. Construction of housing (2,490 units) was to be postponed until Phase 1B, originally scheduled to begin in 2026 (A272-75). By that time, parking garages were to have been 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 EDC and the Developers, the Developers can get out of building the housing that comprises Phase 1B upon payment of $35 million in liquidated damages (A374) – a large sum in absolute terms, but a very small one relative to the estimated $3 billion cost of the Project 14 (A609).5 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. The Developers sought no approvals whatsoever to construct the huge Willets West mall on mapped parkland, either from the State Legislature for the alienation of parkland, or from the community boards, the Borough President, the CPC and the City Council, through ULURP, for the leasing of City property and a change in zoning. The CPC refused to consider the public comments pertaining to Willets West, stating in its Lead Report that they “relate to issues that are beyond the scope of the application” (A505-A506). The only approvals the Developers and the City sought and obtained were for zoning changes and special permits pertaining to the Willets Point Special District, on the other side of CitiField. These changes would permit, instead of the housing originally promised as part of the Willets Point Special District, an enormous, supposedly temporary, parking area for the cars displaced by construction of Willets West on what is now the CitiField parking lot (A479-511, A551-80). These approvals were based on a finding by the CPC and the City Council, under the Special District zoning as amended, that construction of Willets 5 The Supplemental Environmental Impact Statement states that over two thirds of the total Phase 1 square footage would be in Phase 1B (A278). Therefore, the total cost of Phase 1B can be estimated as approximately $2 billion. 15 West on the other side of CitiField was “reasonably necessary . . . to assist in achievement of the goals of the [Willets Point] Special District” (A507). From the outset, QDG and the City have sold the Project on this basis: that without the shopping mall, a “vibrant, mixed-use neighborhood” would never rise in Willets Point (see, e.g., A162, A189, A180, A474-77, A502). However, they have never provided any support for this contention, and indeed, construction of the “temporary” parking lot is more likely to prevent this goal than to advance it. As noted above, the Developers can avoid their obligation to build housing by paying only $35 million in liquidated damages. The agreements between the City and the Developers have no provision in them that would direct any of the mall’s profits toward the housing. Once the mall is built, QDG will have every reason not to build the housing which, by their own account, would cost roughly $2 billion, and would require “prohibitive” City subsidies that have not been promised (A609, A278, 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 CitiField parking area that is now used for recreational events and everyday recreation (A611-17). 16 THE DECISIONS BELOW Early in 2014, Petitioners filed a petition and complaint stating five causes of action: (1) that the City’s leasing of parkland for the construction of a shopping mall without legislative authorization violated the public trust doctrine; (2) that the City’s failure to zone for a shopping mall in the parkland purportedly alienated for that purpose violated N.Y.C. Zoning Resolution § 11-13; (3) that because the City was entering into new leases with QDG and also because new zoning was required, the City Charter required a ULURP process; (4) that the above illegal acts gave rise to a taxpayer cause of action under Gen. Mun. L. § 51; and (5) that the City Planning Commission and the City Council acted arbitrarily and capriciously in approving special permits and zoning changes to Willets Point. The Supreme Court (Mendez, J.) granted the Developers’ and the City’s’ motion to dismiss. The Supreme Court ignored the requirement of the public trust doctrine that any alienation of parkland be explicit and specific. Taking five words of the statute – “improvement of trade and commerce” – out of context, the Supreme Court held that although the statute’s “initial intent” was to enable the construction of Shea Stadium, “other uses [of the parkland] were acceptable for a public purpose,” including “improvement of trade or commerce,” and that a shopping mall was sanctioned because it would improve trade or 17 commerce (A14-15). This was the entirety of the Supreme Court’s analysis of the statute. By a unanimous decision, the Appellate Division reversed the Supreme Court. The Appellate Division correctly acknowledged that although parkland could be alienated or leased for non-park purposes, the legislative authority for any such alienation “must be plain,” and that “any alienation of parkland must be explicitly authorized by the legislature.” Avella v. City of New York, 131 A.D.3d 77, 82, 86 (1st Dept. 2015). In contrast to the Supreme Court, the Appellate Division quoted the relevant statutory language without elisions or omissions, pointing out that where the statute gave the lessee the “‘right ... to use, occupy or carry on activities in, the whole or any part of a stadium, with appurtenant grounds, parking areas and other facilities,’” id. at 84, “the term ‘use’ is not broad enough to embrace a construction project of the type proposed by [QDG]. . . . [T]he language employed makes clear that, in enacting § 18-118, the legislature, contemplating the construction of a stadium in the Park, intended to provide only for how the stadium itself, and any necessary supporting facilities, such as parking lots, could be used.” Id. The Appellate Division found confirmation for this conclusion in the examples of permissible uses in § 18- 118(b)(1), each of which is a type of event “traditionally associated with a 18 stadium.” Id. at 85. The Appellate Division correctly concluded: “No reasonable reading of Administrative Code section 18-118 allows for the conclusion that the legislature in 1961 contemplated, much less gave permission for, a shopping mall, unrelated to the anticipated stadium, to be constructed in the Park.” Id. at 86. In the decretal paragraph, the Appellate Division did not merely modify the decision of the Supreme Court, but reversed it and granted the petition “to the extent of declaring that construction of Willets West on City parkland without the authorization of the state legislature violates the public trust doctrine, and enjoining any further steps toward its construction.” Id. at 86-87. The Appellate Division did not specifically address Petitioners’ other causes of action. EVENTS AFTER THE APPELLATE DIVISION DECISION The City, having spearheaded this Project under Mayor Bloomberg, very publicly withdrew its support after the Appellate Division declared the Project illegal, and did not seek leave to appeal from the decision of the Appellate Division. City officials, including Mayor DeBlasio and Deputy Mayor Glen, belatedly realized what Petitioners have contended from the outset: that the housing promised in a subsequent phase of the Project is unlikely ever to be built.6 6 N.Y. Times, “New York City Declines to Fight in Court for Complex Near Citi Field” (Aug. 19, 2015) (http://www.nytimes.com/2015/08/20/nyregion/new-york-city-declines-to-fight-in- court-for-complex-near-citi-field.html?emc=eta1&_r=0) (quoting Deputy Mayor Alicia Glen as 19 Referring to the City’s expenditures for land in Willets Point and future expenditures for remediation, Glen reportedly told the New York Daily News, “Nearly half a billion dollars is an enormous public investment to make when the only guarantee is a shopping mall.”7 Deputy Mayor Glen was also quoted as saying that the City Law Department “didn’t believe they’d win” this case.8 Almost four months after the deadline to seek leave to appeal to this Court had passed, on December 16, 2015, the City Council, which had been named as a respondent in the Petition, voted to file an “amicus” brief in support of the Project.9 Thereafter, flip-flopping again, the Mayor and the other municipal parties decided to join the Council in filing a brief in this Court, now as “respondents.” Meanwhile, the Developers were backing away from building the promised housing, proposing instead a completely different vision for Willets Point: in July, 2016, the New York Post and Bloomberg News reported that the owners of the Mets, co-venturers in the Project, were in talks with the New York saying that “[t]he deal as it stood did not actually mandate any affordable housing actually be built”). 7 N.Y. Daily News, “Willets Point Development Project Not Worth the Fight, De Blasio Says While Pointing Out It Was a Bloomberg Administration Plan” (Aug. 20, 2015) (http://www.nydailynews.com/news/politics/willets-point-project-not-worth-fight-de-blasio- article-1.2332757). 8 Politico Pro, “City Ended Talks on Willets Point Appeal Just Minutes Before Deadline” (Aug. 20, 2015) (http://www.capitalnewyork.com/article/city-hall/2015/08/8574882/city-ended-talks- willets-point-appeal-just-minutes-deadline ). 9 Resolution 0927-2015 (http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2536146&GUID=6AD88CD5-837A- 47C8-AA43-A30D737FDA79&Options=ID|Text|&Search=0927) . 20 Islanders hockey team, also co-owned by them, to build a hockey stadium in Willets Point.10 The hockey stadium would displace the much ballyhooed “vibrant mixed use community” that the Developers cite as a reason why this Court should reverse the Appellate Division. These developments make clear that, as Petitioners argued below, it was arbitrary and capricious for the City Council to base approval of special permits and zoning changes for Willets Point on the ground that the construction of Willets West was both lawful and “reasonably necessary to assist in achievement of the goals of the [Willets Point] Special District” (A43, A54). As of this writing, it appears that the Developers and the City are renegotiating their deal. Whether they will emerge with an agreement that provides any greater assurance of construction of housing in Willets Point remains to be seen when and if the details are revealed. But the outcome of this case turns on the law, not on the elusive promise of a “vibrant mixed-use neighborhood” in Willets Point. 10 See http://nypost.com/2016/07/21/islanders-talking-with-mets-about-building-arena-next-to- citi-field/ ; http://www.bloomberg.com/news/articles/2016-07-21/nhl-s-islanders-said- considering-a-move-to-queens-with-mets-help . 21 ARGUMENT POINT I THE COURT BELOW CORRECTLY HELD THAT ADMIN. CODE § 18-118 DID NOT AUTHORIZE CONSTRUCTION OF A SHOPPING MALL IN THE PARK This case involves a straight-forward reading of Admin. Code § 18- 118, a special law enacted at the City’s behest to enable the City – not the City’s lessee – to construct Shea Stadium in Flushing Meadows-Corona Park. It is undisputed that the Property is designated as parkland and that a shopping mall is not a park use (A583.2). It is also undisputed that the public trust doctrine prohibits the alienation of parkland for a non-park use without the explicit, specific and unambiguous consent of the State Legislature. That consent is lacking here. As the Appellate Division stated, “[t]here is simply no basis to interpret the statute as authorizing the construction of another structure that has no natural connection to a stadium.” Avella v. City, 131 A.D.3d at 85. A. The Developers and the City Ignore the Public Trust Doctrine’s Requirement That Any Alienation Be Specific, Explicit, and Unambiguous. 1. The Public Trust Doctrine Requires Specificity and Explicitness. The public trust doctrine protects the integrity of parkland by prohibiting any alienation of parkland without the explicit, specific, and unambiguous consent of the State Legislature, acting on behalf of the beneficiaries 22 of the trust, the people of the entire State. Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 630 (2001) (Kaye, C.J.); Avella v. City, 131 A.D.3d at 86. The purpose of that doctrine is to ensure that the people, who are the beneficiaries of the public trust, are not deprived of parkland except by their own consent clearly voiced through their elected representatives. Therefore, in order to find a valid alienation, the Court must find that this is the only meaning the Legislature could have intended. In the leading modern case, Friends of Van Cortlandt Park, 95 N.Y.2d 623, this Court said, “[O]ur courts have time and again reaffirmed the principle that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for nonpark purposes.” Id. at 629-30. Moreover, the approval of the Legislature must be “direct and specific” and “plainly conferred.” Id. at 632 (citations omitted). Van Cortlandt Park illustrates the strictness with which New York courts have applied the public trust doctrine. This Court there held that the City could not, even temporarily, alienate parkland during construction of a drinking water filtration plant under a park without first obtaining the consent of the Legislature. The Court so held even in the face of an urgent need for governmental 23 action to safeguard the public water supply, reinforced by a federal consent decree that required the City to build the filtration plant on a set schedule. Van Cortlandt Park cited with approval Aldrich v. City of New York, 208 Misc. 930, (S. Ct. Queens Co. 1955), aff’d., 2 A.D.2d 760 (2d Dep’t 1956), in which the court summarized the extensive case law that imposes a high bar on the government when it seeks to alienate parkland: [L]egislative authority permitting encroachment upon park purposes must be “plainly conferred.” (Williams v. Gallatin, 229 N.Y. 248, 253 . . . .) When speaking of the legislative authority to alienate public parks, language varying only slightly has been used. Some have said that the legislative authority must be ‘special’ (American Dock Co. v. City of New York, 174 Misc. 813, 824, . . . affd. 261 A.D. 1063, affd. 286 N.Y. 658 . . . ; Lake Co .Water & Light Co. v.Walsh, 160 Ind. 32, 39 . . . ; 10 McQuillin on Municipal Corporations [3d ed.], pp. 77, 82); others, that such authority must be “specific” (Buckhout v. City of Newport, 68 R.I. 280, 287-288 . . .) or “direct” (Sebring v. Quackenbush, 120 Misc. 609, 613, 199 N.Y.S. 245, affd. 214 A.D. 758, . . .) or “express” (State ex rel. Excelsior Springs v. Smith, 336 Mo. 1104, 1113, . . .). Add to the foregoing the well-settled rule that “When there is a fair, reasonable and substantial doubt concerning the existence of an alleged power in a municipality, the power should be denied” (Matter of City of New York [Piers Old Nos. 8-11], 228 N.Y. 140, 152), and it seems clear that the legislative authority required to enable a municipality to sell its public parks must be plain. Id. at 939. Despite a Charter provision that allowed the Board of Estimate to dispose of parkland no longer needed as such, the Aldrich court rejected the City’s attempt to sell to private developers a former hospital building located in Jacob Riis Park without legislative consent. The Court held that the Charter provision 24 was insufficiently specific. It being doubtful whether the Legislature had authorized alienation, “the power should be denied.” Id. at 942. At common law, not even the sovereign could grant private rights to public trust property: only parliament could do so. People v. New York & Staten Island Ferry Company, 68 N. Y. 71, 77 (1877); see also People ex rel. Swan v. Doxsee, 136 A.D. 400, 404 (2d Dept. 1910), aff’d, 198 N.Y. 605 (1910) (“even the power of the Legislature to grant such authority was seriously challenged as in derogation of the public right”). A parliamentary grant was construed narrowly: It will not be presumed that the legislature intended to destroy or abridge the public right for private benefit, and words of doubtful or equivocal import will not work this consequence. Public grants to individuals under which rights are claimed in impairment of public interests are construed strictly against the grantee, for it is reasonable to suppose that if they were intended to have this operation, the intention would have been expressed in plain and explicit language. Staten Island Ferry, 68 N.Y. at 77. In Staten Island Ferry, the Court held that a grant of land under water for construction of a wharf would not be read to authorize any structure that interfered with the public right in the waters of New York bay, because “the rule of strict construction applies,” nothing in the authorizing statute specifically allowed this, and “inferences or implication will not be indulged.” Id. at 78.11 11 See also, e.g., Idaho v. Coeur D'Alene Tribe, 521 U.S. 261, 283-284 (1997) (disposals of public trust lands by the United States “are not lightly to be inferred, and should not be regarded 25 To this day no alienation will be recognized unless expressed with the utmost certainty: [A] park is a pleasure area set aside to promote public health and welfare, and as such: “no objects, however worthy . . . which have no connection with park purposes, should be permitted to encroach upon [parkland] without legislative authority plainly conferred . . . .” Van Cortlandt Park, 95 N.Y. 2d at 629-30 (quoting Williams v Gallatin, 229 N.Y. 248, 253 (1920) (statute authorizing a museum of safety and sanitation was not sufficiently explicit to allow it to be housed in the Central Park Arsenal)). There is good reason for the rule: allowing an unrestrained discretion in the courts to determine whether the Legislature intended to alienate parkland would usurp the power that the Legislature alone may exercise on behalf of the people. 2. The Developers’ and the City’s Approach to the Interpretation of an Alienation Statute Makes a Mockery of the Public Trust Doctrine. Although the unambiguous plain language of Admin. Code § 18-118 makes resort to the interpretative rule of the public trust doctrine unnecessary,12 the Appellate Division properly acknowledged that rule when it held that construction of a shopping mall was not “explicitly authorized by the legislature.” Avella v. as intended unless the intention was definitely declared or otherwise made very plain”); Martin v. Lessee of Waddell, 41 U.S. 367, 411, 416 (1842) (“it will not be presumed that [the sovereign] intended to part from any portion of the public domain, unless clear and especial words are used to denote it”). 12 Cf. QDG Br. 32 (there is “no need to look to any canon of construction here because the plain language is unambiguous”). 26 City, 131 A.D.3d at 86; see also id. at 82 (“direct and specific approval” required; legislative authority must be “plain”). In contrast, the Developers and the City blatantly ignore it. Since this statute, far from specifically authorizing a shopping mall, lacks any mention of such a thing, the City emphasizes that the statute is “flexible,” “expansive,” and authorized construction to meet “a broad array” of “wide-ranging” purposes. See, e.g., City Br. 3, 4, 6, 24, 26, 28, 30. “The question,” says the City, “must not be whether a plan like Willets West specifically entered the legislators’ minds back in 1961. The question instead is whether the plan fits within the leeway inherent in the statutory design . . . .” City Br. 31-32. Similarly, the Developers speak of “a broad range of permissible purposes,” “broad parameters,” “the exceedingly broad grant of authority,” and “expansive purposes.” See, e.g., QDG Br. 6, 29-31, 35,38, 40, 43-44. According to the Developers, the Legislature, by this “broad grant of authority,” conferred “open-ended flexibility” on the City to “permit additional future development for a wide range of uses that the City could specify down the road.” Id. at 6, 46. If Petitioners prevail, they say, “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.” QDG Br. 44 (underlining added). 27 QDG has it exactly right. The public trust doctrine, as uniformly applied in this State until now, mandates that if there is any ambiguity in a statute that supposedly alienates parkland, that statute must be read as not having done so. QDG would instead radically rewrite the doctrine to drop its requirement that the language of consent be precise, and instead read that language as “broadly,” “open- endedly” and “flexibly” as possible. The Legislature can, of course, de-designate parkland entirely, and thereby make the land available for any future use. However, so long as the land remains parkland, an alienation statute must indeed identify “a very specific, discrete use.” The Developers’ and the City’s pleas that the statute should be interpreted as having “leeway inherent” in its design, or as conferring “open-ended flexibility” on the City to build anything it wants, must be rejected, for they would abrogate the public trust doctrine. This statute is sufficiently specific in authorizing, in subsection (a), “a stadium, with appurtenant grounds, parking areas and other facilities,” and in subsection (e), possible additional stadium facilities to be built in future (“additions, alterations or improvements thereto or to the equipment thereof, including a roof and increased seating capacity”). A ruling that this unambiguous 28 statute authorizes a shopping mall would eviscerate the public trust doctrine, which this Court has long staunchly upheld. B. In Nine Specific Ways, the Structure and Plain Language of the Statute Belies the Developers’ and the City’s Interpretation. 1. The Developers’ and the City’s Interpretation Is Inconsistent With the Structure of the Statute. A basic principle of statutory interpretation teaches that “a statute … must be construed as a whole and that its various sections must be considered together and with reference to each other.” N.Y. County Lawyers' Assn. v. Bloomberg, 19 N.Y.3d 712, 721 (2012) (citation omitted). The Developers’ and the City’s’ argument that Admin. Code § 18-118 authorizes construction of anything that would serve the purposes listed in the purposes provision egregiously violates this principle by taking the purposes provision of subsection (b) out of context and downplaying subsection (a) and its relation to subsection (b). Subsection (a) focuses on the City, and what it may construct and do. First, it defines specifically what may be constructed: “a stadium, with appurtenant grounds, parking areas and other facilities.” Second, it states who may construct it: the stadium is “to be constructed by the City” – not by a lessee. Third, it states that the City can lease the stadium and related facilities and how it may do so. Fourth, 29 it limits the purposes for which the City can lease the stadium facilities to “any purpose referred to in subsection (b).” Subsection (b)(1) contains the purposes provision, which states the purposes for which the lessee may “use” what the City has “constructed.” Only the City is authorized to construct. The lessee is not authorized to construct anything. Consistent with this distinction, subsection (b) does not authorize any construction. QDG’s and the City’s interpretation of the language in subsection (b) as authorizing the lessee to construct is inconsistent with the plain language of the statute and its division of subject matters between subsections (a) and (b). As explained in subsection C below, this division between subsections (a) and (b), between the City as builder and lessor of the stadium on the one hand and the lessee as user of it for the specified public purposes only, is not coincidental or casual, but rather is necessitated by the Constitution and basic to this statute. 2. The Plain Language of the Statute Specifies Allowable Uses of the Stadium and Related Facilities, Not of “the Parkland,” “the Property,” “the Land,” or “the Parcel.” A second fundamental principle of statutory interpretation, cited by the court below, is that “when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used.” 30 Avella v. City, 131 A.D.3d at 84 (citation omitted); see also Council of the City of New York v. Giuliani, 93 N.Y.2d 60, 68 (1999) (“We begin with the plain meaning of the words used in the statute.”) (invalidating City’s proposed lease of Coney Island Hospital to private company as contrary to statute creating N.Y.C. Health and Hospitals Corp.). Over and over again, QDG and the City twist the plain language of the statute to their own purposes, replacing its actual words with others that radically change its meaning. Subsection (a) of Admin. Code § 18-118 authorizes the City to enter into leases whereby the lessees “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 . . . .” Similarly, the purposes provision of subsection (b)(1) states that the City’s lessee may be 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,” i.e., the stadium and facilities described in subsection (a), for the listed purposes. However, the Developers and the City repeatedly and falsely contend that the statute gives the City the authority to lease “the covered property,” “the alienated parkland,” “the parkland at issue here,” “the parkland in Willets West,” 31 “Willets West,” “the property covered by the statute,” “the land,” or “the parcel” for the purposes enumerated in Admin. Code § 18-118(b)(1).13 In fact, however, the statute only authorizes the City to lease “a stadium, with appurtenant grounds, parking areas and other facilities” for the enumerated purposes. These misleading paraphrases are at the heart of the Developers’ and the City’s misrepresentation of the statutory language. QDG and the City make their paraphrases seem plausible by always omitting the direct object of the verb “use,” namely the stadium and its facilities, substituting “the covered property,” “the alienated parkland,” “the parcel,” or similar for the omitted stadium.14 This substitution leads the reader to the erroneous inference that it is not only the stadium facilities, but also the Property itself, that can be “used” for the listed purposes. 3. The Statute’s Title Confirms That the Lessee Is Authorized Only to Use the Stadium for the Specified Purposes. The title of the statute confirms the point that it is the stadium that is to be leased by the City, not the parkland, and moreover, that it is the City that is to build the stadium, not the lessee. The title reads as follows: AN ACT to amend the administrative code of the city of New York, in relation to financing the construction of a stadium to be erected by 13 QDG Br. 4, 13, 7, 24, 25, 27, 29, 30, 31, 35, 36, 37, 38, 45; City Br. 3, 23, 26, 29. 14 The Supreme Court, in its paraphrase of the statute, simply omitted the direct object entirely (A14). 32 the city of New York in Flushing Meadow park, and authorizing, in aid of such financing, the renting of such stadium and exemption from down payment requirements.” L. 1961, Ch. 729 (A618) (underlining added). Notably, the statute’s title makes no mention of constructing anything other than a stadium. QDG cites cases for the proposition that the title of a statute must yield to the text if the two are in conflict. However, here the title is fully consistent with, and confirms, the clear meaning of the text. Even QDG admits that “a title or heading may help clarify . . . the meaning of an imprecise or ambiguous provision.” QDG Br. 44 (quoting People v. English, 242 A.D.2d 940, 940 (4th Dept. 1997)). If this statute were in the least ambiguous, the title would confirm its meaning. 4. The Specificity With Which Subsections (a) and (e) Describe What the City May Construct Is Inconsistent With the Argument That the Purposes Provision Authorizes Construction. The statute uses the word “constructed” or “construction” four times. Admin. Code §§ 18-118(a), 18-118(b)(2), 18-118(e). Each time it is in specific reference to a stadium and appurtenant facilities, and nothing else. Subsection (a) states that “a stadium, with appurtenant grounds, parking areas and other facilities, [is] to be constructed by the city.” Subsection (b)(2) refers to the “financing of the construction and operation of such stadium, grounds, parking areas and facilities.” Subsection (e) adds that, in addition to the stadium facilities, the City can construct 33 “additions, alterations or improvements thereto or to the equipment thereof, including a roof and increased seating capacity.” Memoranda submitted by the City, which wrote the bill, to the Legislature are even more specific than the statute itself with regard to what was to be built: they state the number of seats and parking spaces the stadium will have, and the revenue it is expected to generate. (A641, A643, A652, A657-58). Over and over again, too, the bill jacket refers to “the stadium bill.” There is no mention anywhere in the bill jacket of building anything other than a stadium. The Developers and the City, however, cite the purposes provision of subsection (b), which gives the lessee, “the right to use . . . such stadium, grounds, parking areas and other facilities” for “recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce.” When the Legislature gave the lessee the right to “use” the stadium facilities for the stated purposes, it did not mean “demolish them and construct something else.” In contrast to the specificity of subsections (a) and (e), which detail what can be constructed by the City, this list of purposes for which the lessee can use the stadium and appurtenant facilities is very broad, limited only by the fact that they are all public purposes typically served by stadiums. If this list really 34 described what could be built, as the Developers and the City argue, subsections (a) and (e) would not describe so specifically what could be built. Yet again, the Developers’ and the City’s interpretation is inconsistent with the “plain meaning of the words used.” Avella v. City, 131 A.D.3d at 84. 5. Admin. Code § 18-118(b)’s List of Permissible Purposes Does Not Encompass Construction and Operation of a Private Commercial Shopping Mall. Under the familiar canon of noscitur a sociis [“it is known from its associates”], any ambiguity in a list of terms must be interpreted by reference to the other allowed uses. Kese Industries v Roslyn Torah Foundation, 15 N.Y.3d 485, 491 (2010) (in the phrase “heirs, legal representatives, and assigns,” “legal representatives” must be read to exclude “attorney of record”); 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).15 QDG and the City urge that the shopping mall will serve all of the permissible stadium purposes listed in Admin. Code § 18-118(b)(1): “recreation, 15 QDG makes much of the fact that the Appellate Division referred to the canon of ejusdem generis (“of the same kind”) rather than noscitur a sociis (“known by its associates”). These canons are in fact similar, and this Court has on occasion referred to them as interchangeable. See, e.g., People v. Martell, 16 N.Y.2d 245, 247 (1965). Both refer to the idea that in interpreting a statute that contains a list of items, a court must look to the common elements of those items to determine whether another item fits within the category defined by the list. 35 entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce.” QDG Br. 36 (quoting Admin. Code § 18-118(b)(1)). As QDG repeatedly notes, the statute states that all of these purposes are public purposes. See, e.g., QDG Br. 35-36. Even if the proposed shopping mall did serve these lofty public purposes – which it does not – its construction would not be authorized by the statute, because, as shown above, the purposes provision simply does not authorize construction. But furthermore, this list of allowable public purposes is yet another way in which the text belies the Developers’ and the City’s’ interpretation. These are all purposes traditionally regarded as public, and they all relate to activities that typically take place in stadiums. Under the principle of noscitur a sociis, construction and operation of a shopping mall in a park does not fit in this list, because it neither serves a public purpose nor typically takes place in stadium facilities. If the term “public purpose” has any meaning at all, it does not include a shopping mall, whose purpose is quintessentially private and commercial. To the extent the shopping mall serves any of the listed public purposes, they are purely incidental and secondary to the primary purpose of making money for QDG. 36 6. The Term “Improvement of Trade and Commerce” Does Not Encompass a Shopping Mall. The Developers and the City particularly emphasize that the shopping mall will allegedly “contribute to the improvement of trade and commerce.” QDG Br. 40-41; City Br. 27-28, 32-33. There is literally no commercial or even industrial activity that would not fit within their definition of the statutory term “improvement of trade and commerce,” and therefore not be permitted in the Park. However, unfortunately for QDG and the City, “improvement of trade and commerce” is a term of art, and it does not sweep so broadly as to encompass a private commercial shopping mall. The statute itself provides examples that illustrate this term’s meaning: “meetings, assemblages, conventions and exhibitions held for business or trade purposes.” 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. 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), this Court considered whether State appropriations of funds for the promotion of New York State products were for a 37 constitutionally permitted public purpose.16 The Court distinguished government support for the promotion of trade and commerce from government support for specific private commercial ventures, 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. Similarly, in Kato v. Ishihara, 360 F.3d 106, 111-12 (2d Cir. 2004), the Second Circuit held that promotion of trade and commerce is “a basic – even quintessential – governmental function” that involves “product promotion, . . . general business development assistance, [and] participation in trade shows,” and is distinct from private 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. 38 commercial activities. Once again, the Developers and the City are misinterpreting the plain language of the statute. In fact, government support of retail projects is uniquely disfavored in New York law. When, in 1961, Article VII, § 8 of the New York Constitution was amended to clarify that the State could provide loans indirectly to private entities for job creation, that amendment specifically excluded any loans for facilities “primarily used in making retail sales of goods or services,” and such loans therefore remain prohibited under the Constitution. N.Y. Const., Art. VII, § 8(3). Additionally, General Municipal Law § 862(2) prohibits industrial development agencies from funding retail projects unless they are located in economically highly distressed areas. See Sun Co., 209 A.D.2d at 41-42. QDG cites Kaufmann’s Carousel, Inc. v. City of Syracuse Indus. Dev. Agency, 301 A.D.2d 292 (4th Dept. 2002), which holds that construction of a shopping mall can serve a public purpose. But that shopping mall served a public purpose only because it was part of an economic redevelopment project for a “highly distressed area.” Sun Co. v. City of Syracuse Indus. Dev. Agency, 209 39 A.D.2d 34, 41-43 (4th Dept. 1995).17 The public purpose there was not the shopping center; it was the redevelopment of a blighted area. Although Willets Point was designated an urban renewal area in 2008, 47 years after the passage of Admin. Code § 18-118, Flushing Meadows-Corona Park was not within that urban renewal area. Nothing in the language or history of Admin. Code § 18-118 suggests that it was enacted to address urban blight or to enable the redevelopment of Willets Point. Although QDG and the City argue that Willets West is part of a redevelopment plan, it was not included in the area of the City’s 2008 redevelopment plan, and certainly no such plan was contemplated by the Legislature when, in 1961, it authorized the City to finance and construct a stadium and limited the lessee’s uses of that stadium to stadium-related public purposes. While the concept of public purpose may be flexible, it has never been extended to encompass a privately owned commercial shopping mall in a park. In short, Kaufmann’s Carousel has no bearing on whether a shopping mall fits within the list of public purposes set forth in § 18-118(b). 17 QDG also cites Save Coney Island, Inc. v. City of New York, 27 Misc. 3d 122[A] (S. Ct. N.Y. Co. 2010). That case stands for the uncontroversial proposition that economic redevelopment may be a public purpose. It has nothing to do with shopping malls in parks. 40 7. QDG’s and the City’s Interpretation of the Statute Is Belied By the Fact That All of the Statute’s Examples of Allowable Uses Are Events Typically Held in Stadiums, Not Structures. After listing seven permissible purposes, the statute goes on to provide illustrative examples of those purposes. All of the statute’s examples are events, and moreover, they are events of the kind that might be held in a stadium: “. . . 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.” Admin. Code § 18- 118(b)(1). Once again, the principle of noscitur a socii applies. “Construction and/or operation of a shopping mall” would stick out like a sore thumb in this list of illustrative examples. QDG wrongly claims that the Appellate Division made a “critical interpretative error” because it allegedly treated the list of examples as limiting rather than illustrative. QDG Br. 33-34. Contrary to QDG’s argument, the Appellate Division did not state that the examples were exclusive, but only that they are illustrative of the types of events that would be permitted, and that, tellingly, “each of these examples is traditionally associated with a stadium.” 41 Avella v. City, 131 A.D.3d at 85. Construction and operation of a shopping mall, in contrast, is completely dissimilar from the listed illustrative events. For QDG, the examples are not even illustrative: they are completely irrelevant. This reading not only violates the interpretative principle of noscitur a socii, but also one of the very principles QDG itself relies on: “‘Words are 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); see also Avella v. City, 131 A.D.3d at 84 (quoting Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 515 (1991) (“‘It is an accepted rule 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.’”). 8. In the Phrase “a Stadium, with Appurtenant Grounds, Parking Areas and Other Facilities,” “Other Facilities” Does Not Encompass a Shopping Mall. The City further violates the statute’s language when it argues that the Legislature’s inclusion of the words “other facilities” in the statute’s phrase “a stadium, with appurtenant grounds, parking areas and other facilities” constitutes express authorization to build a shopping mall. City Br. 4, 29. The principle of ejusdem generis (“of the same kind”) invoked by the Appellate Division is directly applicable, and precludes the City’s interpretation. 42 “Under that canon of statutory construction, the phrase [‘other facilities’], though susceptible of a wide interpretation, becomes one limited in its effect by the specific words which precede it.” People v. Illardo, 48 N.Y.2d 408 (1979). Here, the specific words that precede “other facilities” are “a stadium, with appurtenant grounds [and] parking areas.” Even if the word “appurtenant” were not present, “other facilities” in this context could not be read to mean any structure that would serve any of the broad purposes listed in subsection (b)(1) of the statute. However, the word “appurtenant” is present, and it is more than obvious that this word modifies “grounds, parking areas and other facilities,” so that the “grounds, parking areas and other facilities” must be appurtenant to the stadium. A thing is ‘appurtenant’ to something else when it . . . is necessarily connected with the use and enjoyment of the latter.” Black’s Law Dictionary (6th ed.). A parking ticket booth, lavatories, a lost and found, a small emergency medical facility for event attendees, may be “necessarily connected with the use and enjoyment” of a stadium. The City’s suggestion, factually unsupported and made for the first time in this Court, that a shopping mall is appurtenant to a 43 stadium merely because it occasionally happens that malls are built next to stadiums does not prove necessary connection.18 Black’s Law Dictionary (6th ed.) further defines “appurtenant” as “belonging to; accessory or incident to; adjunct, appended, or annexed to.” As the Appellate Division recognized, this means that the appurtenant use is subordinate to, or in the service of, a dominant use. Avella v. City, 131 A.D.3d at 84 (“the legislature, contemplating the construction of a stadium in the Park, intended to provide only for how the stadium itself, and any necessary supporting facilities, such as parking lots, could be used”) (emphasis added). Here, the dominant use is the stadium. A shopping mall is not a necessary supporting facility for a stadium. It is not believable that the Legislature, by including the words “other facilities,” intended to sweep in sub silentio the right to build structures that would serve “a broad array of public purposes,” including a shopping mall, in the Park. City Br. 3. 18 With no support whatsoever, the City claims that the opening of the Barclay’s Center in Brooklyn in 2014 led to the opening of new stores nearby. This is questionable, but if new stores have opened, it is just as likely to be because the Barclay’s Center is situated in a dense urban neighborhood that was rapidly gentrifying long before the Barclay’s Center was even contemplated, and where new stores have been opening for years. 44 9. QDG’s Interpretation Renders Subsection (b)(2) Superfluous. QDG argues that Petitioners’ reading of the statute makes both subsections (b)(1) and (b)(2) superfluous. QDG Br. 36-37. To the contrary, it is QDG’s interpretation that would render subsection (b)(2) superfluous. As shown below, the Legislature included subsection (b)(1) to ensure the constitutionality of the City’s financing, construction, and leasing of the stadium and appurtenant facilities by precluding private commercial uses of those facilities. Subsection (b)(2) was added to provide a limited exception to subsection (b)(1)’s preclusion of private commercial uses: it allowed the stadium to be used “for any business or commercial purpose,” but only if that business or commercial purpose “aids in the financing of the construction and operation of such stadium, grounds, parking areas and facilities.” Subsection (b)(2) allows, for example, concession stands or a shop selling Mets clothing and paraphernalia in the stadium – uses not authorized under (b)(1). Subsection (b)(2) is broader than subsection (b)(1) in that it allows uses of the stadium for “any business or commercial purpose,” but it is narrower in that it only allows such uses if they are in aid of the financing, construction and operation of the stadium.19 Thus, subsection (b)(2) ensured that any actual trade 19 Neither QDG nor the City have ever suggested that the shopping mall will serve this function and they have not relied on subsection (b)(2). 45 and commerce in the stadium facilities (as distinguished from promotion of trade and commerce) would be within the constitutional limits, which allow only incidental private uses of the stadium. If subsection (b)(1) had already authorized the use of the stadium for commercial purposes, the Legislature would not have had to authorize its use separately for “any business or commercial purpose.” It is QDG’s reading of the statute, not Petitioners,’ that makes subsection (b)(2) superfluous. See Avella v. City, 131 A.D.3d at 84 (“a statutory construction which renders one part [of the statute] meaningless should be avoided”). C. The Legislature’s Intent, Which Is the “Great and Controlling Principle” of Statutory Interpretation, Was to Ensure that Use of the Stadium Facilities Would Not Violate Article VIII, § 1 of the Constitution, the Gifts and Loans Provision. The overriding rule of statutory interpretation is that, “[i]n giving effect to the[ ] words [of the statute], ‘the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle.’” Council v. Giuliani, 93 N.Y.2d at 68-69; see also Besser v. E. R. Squibb & Sons, Inc., 146 A.D.2d 107, 113-114 (1st Dept. 1989), aff’d, 75 N.Y.2d 847 (1990); Avella v. City, 131 A.D.3d at 84. The Legislature’s intent in including the purposes provision was not to authorize construction, but to prohibit private commercial activity that could 46 violate Article VIII, § 1 of the State Constitution, the Gifts and Loans provision, which bars the City from directly financing or appropriating money for private commercial purposes. As the Appellate Division recognized, the statute limits the permissible uses of the stadium to public uses for which stadiums were typically used. Reading it as authorizing construction of a shopping mall is the diametric opposite of what the Legislature intended. In this connection, it is important to bear in mind that Admin. Code § 18-118 provided for the City itself to finance and construct the stadium. In 1961, when the statute was enacted, the New York City Economic Development Corporation and similar vehicles did not yet exist. Although the Constitution permits certain indirect subsidies for private commercial activities, direct City financing of such activities was and remains unconstitutional. Bordeleau v. State of New York, 18 N.Y.3d 305, 316-17 (2011) (interpreting Article VII, § 8, the analogous provision applicable to the State itself as opposed to its subdivisions). Admin. Code § 18-118 was drafted by the City and enacted by the State Legislature on a home rule message from the City (A642). A City memorandum in the bill jacket confirms that the purposes provision was included to ensure compliance with Article VIII, § 1. After reviewing decisions from numerous other states in which similar or identical constitutional issues had been 47 raised, that memorandum concluded that City financing and construction of the stadium would be constitutional provided, however, that the stadium’s use was limited to public purposes such as those listed in Admin. Code § 18-118(b). (A628-32) The City’s memorandum cited numerous authorities, and 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). In this and another memorandum in support, the City wrote that the stadium was to serve “customary stadium purposes.” (A641, A643, A648). Not coincidentally, the purposes allowed by Admin. Code § 18-118(b) closely track those listed in McQuillin. Ten years after the enactment of Admin. Code § 18-118, this Court addressed the question raised by the City’s memorandum, and held that Erie County could finance and construct a stadium and lease it to a private entity, but only on condition that it be used for public purposes such as these. Murphy v. Erie County, 28 N.Y.2d 80, 87-88 (1971).20 In fact, the statute enabling the Erie County 20 The extensive 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) 48 stadium contained a list of permissible public purposes very similar to that of § 18- 118. L. 1968, Ch. 252, § 2, quoted in County of Erie v. Kerr, 49 A.D.2d 174, 175- 76 (4th Dept. 1975). This context explains why the Legislature included purposes provisions in Admin. Code § 18-118 and other stadium statutes. It also confirms that the list of allowable purposes in § 18-118(b) was not an expansive list of structures that might be erected on the site, but, to the contrary, a limitation of the purposes for which the stadium could be used. A private commercial mall constructed on parkland cannot be said to serve a governmental or public purpose, and is therefore not authorized by § 18-118.21 To hold that Admin. Code § 18-118 authorized a mall here would be to ignore the overriding legislative intent that is “the great and controlling principle” in all legislative interpretation. Council v. Giuliani, 93 N.Y.2d at 68-69, and arrive at a result that is the opposite of what the Legislature intended. (reviewing cases and holding that city’s use of eminent domain, without legislative authorization, for the purpose of leasing 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). 21 QDG and the City decline to address the legislative history. QDG cites a number of cases for the elementary proposition that where the legislative history and the title of a statute are at odds with the text, it is the text that governs. QDG Br. 43-45. But in this case, the legislative history (A618-A662) only provides a context for what the text clearly says. 49 “‘[C]ourts have repeatedly rejected statutory constructions that are . . . antithetical to legislative objectives.’” People v. Garson, 6 N.Y.3d 604, 614 (2006). D. Other Stadium Statutes, Including the Yankee Stadium Statute, Contain Identical or Similar Purposes Provisions. The conclusion that the purposes provision was intended to enable financing of a stadium rather than to permit construction of other structures is confirmed by the fact that other statutes authorizing localities to build stadiums, including the Yankee Stadium statute relied on by QDG and the City, have similar or identical provisions. It is improbable that the Legislature, in enacting these other statutes, two of which also authorized stadiums in parks, intended at the same time to authorize construction of shopping malls. Admin. Code § 18-128, the statute authorizing construction of the Louis Armstrong Tennis Stadium in Flushing Meadows-Corona Park, contains a purposes provision which is almost word-for-word identical to that of Admin. Code §18-118(b). Admin. Code § 18-128(b). Surely, the Legislature did not intend to authorize construction of two shopping malls in the Park. Below, QDG sought to distinguish Admin. Code § 18-128(b) by the fact that it specifies that the City could enter into leases only with the United States Tennis Association, and thereby limits the uses of that stadium to tennis-related uses. But this point only strengthens Petitioners’ argument. If the purposes 50 provision in § 18-128(b) does not provide the same sweeping authorization to construct a wide range of structures that QDG and the City find in § 18-118, why was it included? And how is it that the very same provision in § 18-118(b) authorizes a shopping mall and many other structures whereas this one does not? The truth is that in both statutes, these provisions do not authorize construction, but only limit the lessee’s uses of what the City has financed and constructed to those that are constitutionally permissible. As noted above, the statute that enabled the Erie County stadium also contains a purposes provision. That statute, like Admin. Code § 18-118, declared that the use and occupation of the stadium was deemed to be in the public interest and for the benefit of the people of the county and for the improvement of their health, education, welfare, recreation, well- being and prosperity, for the promotion of competitive sports for youth and the prevention of juvenile delinquency, and for the advancement and improvement of trade, industry, science, agriculture and commerce, and [these purposes] are hereby declared to be public purposes for which county moneys may be appropriated and pended. L. 1968, Ch. 252, § 2, quoted in County of Erie v. Kerr, 49 A.D.2d 174, 175-76 (4th Dept. 1975). If “improvement of trade and commerce” allows a shopping mall at Willets West, why would it not at the Erie County stadium? The answer is that this provision, like the analogous ones in §§ 18-118(b) and 18-128(b), did not 51 authorize construction, but rather served to enable the financing of the stadium under the Constitution. Finally, the statute authorizing the new Yankee Stadium in Macombs Dam Park, which, according to QDG and the City, limits the use of the stadium to stadium uses and to baseball, also contains an equally “sweeping” purposes provision: It is hereby found and declared that the development, financing, operation and maintenance of a new stadium for professional baseball and associated facilities, including parking facilities, in the borough of the Bronx in the city of New York, will provide, for the benefit of the people of the city of New York, recreational use and activities including entertainment, amusement, education, enlightenment, cultural development and betterment and improvement of trade and commerce, including professional sports and athletic events, cultural and entertainment events, tourism, meetings and assemblages, and other events of a civic, community and general public interest. It is further found and declared that the development, financing, operation and maintenance of such stadium and related facilities, including parking facilities, are for the benefit of the people of the city of New York and for the improvement of their health, welfare, recreational activities and prosperity and for the improvement of trade and commerce and are hereby declared to be public purposes. L. 2005, Ch. 238, § 1, 2005 N.Y. ALS 238; 2005 N.Y. S.N. 5818 (July 19, 2005). QDG and the City argue that the Yankee Stadium statute, unlike § 18-118, did not authorize construction of shopping malls, or any and all other structures that might serve the listed purposes, in Macombs Dam Park, the site of the new stadium. QDG Br. 37-38; City Br. 29. But then, again, why was this purposes provision 52 included, and how is it that the very similar purposes provision of § 18-118 did authorize construction? It is preposterous to suggest that in authorizing the construction and leasing of all these stadiums, including three stadiums on parkland and one within Flushing Meadows-Corona Park itself, the Legislature explicitly authorized the construction of malls. E. There Is No Support for the City’s Contention That the Legislature Authorized Non-Park Use of the Property. The City is dead wrong when it states that, “There is no dispute here that the Legislature in 1961 authorized the City to use the parcel for a range of non-park, social and economic development purposes.” City Br. 23; see also id. at 2, 6, 18 (arguing that the Legislature authorized “non-park uses” of the Property). Petitioners have vehemently disputed this contention from the start, and the evidence is entirely to the contrary. Whether or not a stadium is a park use, the public trust doctrine mandates alienation legislation for any disposition of parkland, such as the City’s lease of the stadium. See Miller v. New York, 15 N.Y.2d 34 (1964) (20-year lease of parkland for golf driving range was a lease, not a license, and as such was subject to the public trust doctrine and required legislative authorization). 53 With legislative authorization, stadiums have been built in parks. In New York City alone, the Legislature has authorized three stadiums in parks: Shea Stadium, Louis Armstrong Stadium, and Yankee Stadium. Courts have also held that a stadium may be a park use. SFX Entertainment v. City of New York, 297 A.D.2d 555, 555 (1st Dept. 2002); Mile High Enterprises, Inc. v. Dee, 192 Colo. 326, 330-31 (Co. S. Ct. 1977); Aquamsi Land Co. v. Cape Girardeau, 346 Mo. 524, 531 (Mo. S. Ct. 1940). The Legislature could have decreed that the Property would no longer be parkland. See, e.g., Brooklyn Park Comm’rs v. Armstrong, 45 N.Y. 234, 244 (1871) (“The legislature could discharge [the City] from the trust to hold [land] for a park, and empower it to sell. It has done so . . . .”); Friends of Van Voorhis Park. v. City of New York, 216 A.D.2d 259 (1st Dept. 1995) (construing law authorizing sale of parkland). However, this statute did not do that. Petitioners know of no instance, anywhere in the nation, in which a legislature has authorized a 200-store commercial shopping mall in a park, let alone given blanket authorization to construct in a park structures serving “a range of non-park, social and economic development purposes.” City Br. 23. 54 POINT II ADMIN. CODE § 18-118 DOES NOT EXEMPT THE CITY AND THE DEVELOPERS FROM ULURP AND ZONING Willets West is additionally unlawful because it was not approved through ULURP and because the site has not been rezoned as required by the Zoning Resolution. The Supreme Court held that ULURP and the Zoning Resolution were superseded by Admin. Code § 18-118. The Appellate Division, in reversing, did not reach these claims. They provide independent and equally strong alternative bases for affirming the decision below. A. This Court May Either Affirm or Remit to the Appellate Division on Petitioners’ ULURP, Zoning, and “Arbitrary and Capricious” Points The City argues that Petitioners are barred from raising any alternative grounds for affirmance because they did not seek leave to cross-appeal on claims not reached by the Appellate Division. City Br. 36-37. However under the circumstances of this case, this Court may decide on alternative grounds or remit to the Appellate Division for consideration of those claims that it did not reach. The applicable rule is stated in the leading case of Parochial Bus Systems, Inc. v. Bd. of Education, 60 N.Y.2d 539 (1983): An appeal from a final judgment or order brings up for review any determination of the court below “which was adverse to the respondent” and which “if reversed, would entitle the respondent to prevail in whole or in part on [the] appeal”. (CPLR 5501, subd [a], 55 par 1.) This rule permits a respondent to obtain review of a determination incorrectly rendered below where, otherwise, he might suffer a reversal of the final judgment or order upon some other ground. Hence, the successful party, who is not aggrieved by the judgment or order appealed from and who, therefore, has no right to bring an appeal, is entitled to raise an error made below, for review by the appellate court, as long as that error has been properly preserved and would, if corrected, support a judgment in his favor. Id. at 545-46. In this case, there was no adverse ruling of the court below from which Petitioners could have appealed. The Appellate Division did not modify the decision of the Supreme Court and otherwise affirm; rather, it reversed the Supreme Court decision in its entirety, declaring construction of the mall illegal and enjoining it. The petition herein stated three reasons why construction of the shopping mall was contrary to law and should be enjoined: (1) that its construction without legislative authorization violated the public trust doctrine; (2) that the City’s failure to rezone for a shopping mall violated N.Y.C. Zoning Resolution § 11-13; and (3) that because the City was entering into new leases with QDG and also because new zoning was required, the City Charter required a ULURP process. On each of these three points, the Developers’ and the City’s response was the same. Each argument failed, they said, for one reason, and one reason 56 alone: because Admin. Code § 18-118 authorized a shopping mall. According to the Developers and the City, this legislative authorization not only satisfied the requirements of the public trust doctrine but also superseded all local law land use review and the substantive requirements of zoning. The Appellate Division, however, held that “[t]here is simply no basis to interpret the statute as authorizing construction of another structure that has no natural connection to a stadium,” and that “[n]o reasonable reading of Administrative Code section 18-118 allows for the conclusion that the legislature in 1961 contemplated, much less gave permission for, a shopping mall . . . to be constructed in the Park.” Avella v. City, 131 A.D.3d at 85-86. Although the Appellate Division did not reach Petitioners’ ULURP and zoning claims, this holding constituted an unequivocal rejection of the Developers’ and the City’s arguments that the Legislature’s authorization of a shopping mall superseded local land use law concerning what could be built on the site. Moreover, in reversing the Supreme Court’s dismissal of the petition and complaint and declaring the shopping mall unlawful and enjoining its construction, the Appellate Division granted Petitioners the full relief they requested. Petitioners were in no way aggrieved by the Appellate Division’s not reaching the ULURP and zoning claims, and so could not have cross-appealed with 57 respect to them. Accordingly, Petitioners can raise them now as alternative grounds for affirmance. N.Y. Tel. Co. v. Nassau County, 1 N.Y.3d 485 (2004), a property tax case cited by the City, is not to the contrary. In N.Y. Tel. the Appellate Division affirmed the Supreme Court’s decision adverse to the County on the merits, but modified by reversing the lower court’s allowance of retroactive monetary damages. On the utilities’ appeal to this Court from the denial of their damages claim, this Court reversed the Appellate Division. However it refused to consider the County’s argument that the lower courts’ rulings on the merits were erroneous, stating only: “We do not reach the propriety of the tax assessment. The County did not appeal that portion of the Appellate Division order.” Id. at 490. The City wrongly states that as in N.Y. Tel., the Appellate Division here “left undisturbed the [Supreme Court’s] dismissal of petitioners’ claim with respect to any ULURP resolution.” City Br. 37. Unlike in N.Y. Tel., the Appellate Division here reversed the decision of the Supreme Court in toto, declared the shopping mall illegal, and enjoined its construction. Also, whereas in N.Y. Tel there were two entirely separate issues before the Appellate Division, here the legal issues in the public trust claim, the ULURP claim, and the zoning claim are one and the same: whether Admin. Code § 18-118 specified a shopping mall. 58 Therefore, the Appellate Division’s holding that it did not authorize a mall effectively decided not only the public trust claim, but also Petitioners’ other legal claims. As in Parochial Bus, Petitioners here obtained the full relief they had sought, and were in no way aggrieved by the Appellate Division’s decision. For these reasons, Petitioners are not barred from raising their ULURP and zoning claims as alternative grounds for affirmance by this Court. Alternatively, because the Appellate Division did not reach Petitioners’ claims other than the public trust claim, if this Court were to reverse on that claim, it should remand to the Appellate Division for a decision on the remaining claims.22 P.M.S. Assets v. Zoning Bd. of Appeals, 98 N.Y.2d 683, 684- 85 (2002) (reversing on ground considered by Appellate Division and remitting to that court for consideration of other issues not previously considered or decided by it); Bluebird Partner L.P. v. First Fid. Bank N.A., 97 N.Y.2d 456 (2002) (same); see also Walton v. New York State Dept. of Correctional Servs., 8 N.Y.3d 186, 197 (2007) (“‘While this Court may consider alternative legal grounds raised at but not 22 In addition to their legal arguments, Petitioners argued below that the approvals granted by the City for Willets Point should be annulled as arbitrary and capricious. Because the Appellate Division did not specifically annul these approvals, it could be argued that Petitioners did not get the relief they sought on this claim. 59 addressed by the Appellate Division, the preferable, more prudent corrective action is remittal.’”) (quoting Schiavone v City of New York, 92 NY2d 308, 317 (1998)). B. Admin. Code § 18-118 Did Not Supersede the Charter or the Zoning Resolution. ULURP is required when the City enters into new leases and subleases, as it will do here (A583). Charter §§ 197-c(a)(10), 384(b)(5). Additionally, Zoning Resolution § 11-13 provides that whenever parkland, which is unzoned, is “sold, transferred, exchanged, or in any other manner relinquished from the control of the Commissioner of Parks and Recreation,” it cannot be built on “until a zoning amendment designating a zoning district” for the parcel has been adopted. This too requires ULURP. Charter §§ 200, 201. To date, QDG and the City have not disputed that absent Admin. Code § 18-118, Willets West would have had to be approved through ULURP and a zoning change would have been required. Nor have they disputed that Willets West did not go through ULURP. City Br. 18, 19 n.1; City App. Div. Br. 46 (“the Willets West component was not formally approved under ULURP as a legal matter”). However, QDG and the City argue that Admin. Code § 18-118 supersedes City zoning regulations and ULURP. See, e.g., QDG App. Div. Br. 39-40 (arguing that City land use laws do not apply where State legislation provides for a specific land use). According to the City, “the State Legislature has already resolved the permissible uses of the particular parcel by enacting § 18-118.” City Br. 41. The 60 statute,” they say, “leaves open only the business terms of the contemplated lease with the tenant, which is a power that can be properly exercised by the Mayor.” City Br. 41; see also QDG App. Div. Br. 41. In furtherance of this argument, QDG and the City refer to the clause in Admin. Code § 18-118(a) that empowers the City to enter into leases of the stadium, parking areas, and other appurtenant facilities “[n]otwithstanding any other provision of law, general, special or local,” and on Waybro v. Board of Estimate, 67 N.Y. 2d 349 (1986). City Br. 42-43. However, neither Waybro nor the other cases cited by QDG and the City below hold that a “notwithstanding” clause, without more, provides a blanket exemption from local laws. To the contrary, if a “notwithstanding” clause creates an apparent conflict between two statutes, the court must first determine whether they really conflict or whether they cannot rather be harmonized so as to give effect to both. Besser v. E.R. Squibb & Sons, Inc., 146 A.D.2d 107 (1989), aff’d on op. below, 75 N.Y.2d 847 (1990). As the Besser court stated, in such a circumstance “the two statutes should be construed, if possible, to accommodate the policies underlying each. ‘It is a familiar and salutary canon of construction that courts, in construing apparently conflicting statutory provisions, must try to harmonize them.’” Id. at 115. Not only is there no conflict between Admin. Code § 18-118 and local procedural law, but in fact Admin. Code § 18-118 affirmatively required the City 61 to follow the then-applicable local lease approval procedures for any lease of more than one year, i.e., approval by the Board of Estimate. The statute states: “[T]he city . . . with the approval of the board of estimate, is hereby authorized . . . to enter into . . . leases . . . ” Admin. Code § 18-118(a) (emphasis added).23 In 1961, when the statute was enacted, Board of Estimate approval was the only local procedure required for approval of a lease of City-owned property, including approval of its land use impacts and implications. Neither ULURP nor SEQRA existed.24 In 1989, subsequent to the Supreme Court’s declaration in Morris v. Board of Estimate, 489 U.S. 688 (1989), that the Board of Estimate was unconstitutional, the Charter was revised, the Board of Estimate was 23 Subsection (d) of the statute exempts leases of less than a year from the requirement of Board of Estimate approval. This provision was not included to avoid red tape or to preempt local law procedures, as in Waybro, 67 N.Y.2d at 356. Rather, it was included at the City’s own request, to avoid “burden[ing] the Board of Estimate with the task of passing on short-term rentings” (A641). However, it only covers short-term leases. If, as the Developers and the City contend, the “notwithstanding” clause of subsection (a) superseded all local law procedural requirements, subsection (d) would be superfluous. 24 ULURP came into being in 1975. See Council v. Giuliani, 172 Misc. 2d 893, 901 (S. Ct. Queens Co. 1979) (recounting history). SEQRA was enacted in that same year by Chapter 512 of the Laws of 1975. The City vaguely suggests that Board of Estimate approval was not the only procedure required for the approval of a City lease, and that the statute created a special “streamlined,” “limited and expedited” approval process which overrode unspecified land use provisions in Chapter 8 of the City Charter. City Br. 45-46. The City has not, however, pointed to any specific provision. This argument – made for the first time in this Court, and therefore waived in any event – is contradicted by the cases cited in the next paragraph, and also relied on by the City, which make clear that in 1961 the Board of Estimate approval was the only approval required for a City lease, and comprised both land-use aspects and business terms of the lease. Notably, subsection (d) of the statute actually does provide for an expedited approval process, eliminating the requirement of Board of Estimate approval, but only for leases of under one year. 62 abolished, and its functions were reallocated. Petitioners are in agreement with the City on this point: the function of approving leases of City property was reallocated in part to the Mayor, who was granted powers with respect to the business terms of certain leases, and in part to the City Council and other bodies which, through the ULURP process, were granted powers to consider and approve “the land use impact and implications of the proposed transaction.” Charter § 384(b)(5); see City Br. 43-44. As a result of this reallocation of powers, any pre-1989 statute that requires Board of Estimate approval for any property disposition by the City must now be read as requiring approval of the land use impacts by the City Council through the ULURP process, as well as approval of the business terms by the Mayor. Friends of Van Voorhis Park. v. City of New York, 216 A.D.2d 259 (1st Dept. 1995) (affirming Friends of Van Vorhees Park, Inc. v. The City of New York, Index No. 134528/93 (S. Ct. N.Y. Co. Jan. 23, 1995) (A704-10); Council of City of New York v. Giuliani, 183 Misc. 2d 799 (S. Ct. Queens Co. 1999); Council of New York v. Giuliani, 172 Misc. 2d 893 (S. Ct. Queens Co. 1997), aff’d on other grounds, 231 A.D.2d 178 (2d Dept. 1997), aff’d, 93 N.Y.2d 60 (1999).25 25 In the lower courts, the City and QDG argued that these decisions construed statutes that lacked the allegedly detailed specification of what could be built that they purported to find in Admin. Code § 18-118. QDG App. Div. Br. at 40-43; City App. Div. Br. at 43-44. However, Admin. Code § 18-118 does not, in fact, contain any detailed specification of what could be 63 The facts of Friends of Van Voorhis Park are strikingly similar to those here. The Supreme Court and the Appellate Division there construed a park alienation statute that, like this one, had a “notwithstanding” clause. Also like the statute at issue here, that statute permitted the lease (and there also the sale) of certain parkland to Long Island College Hospital for construction of a parking facility “upon such terms and conditions as the board of estimate of the city of New York shall deem appropriate.” L. 1984, Ch. 836, § 1 (A711-12). The First Department there held that following the abolition of the Board of Estimate, the statute’s requirement that the terms of the disposition be approved by that Board meant that those terms were subject to all the land use and environmental reviews that later became applicable, including ULURP. This Court stated: “[W]e reject the City’s contention that this authority suspends the standard land use and environmental reviews that ordinarily burden such administrative actions.” Friends of Van Voorhis Park, 216 A.D.2d at 259. Similarly, the Supreme Court had previously held that “the legislature intended only that the subject disposition be made pursuant to the procedures set forth in the Charter. Pursuant to the 1989 Charter amendments, the power of the Board of Estimate has been reallocated” (A709). built. Moreover, their argument is contradicted by their own argument elsewhere that the statute is so “expansive” and “flexible” as to allow construction of buildings serving a “broad range of permissible purposes.” City Br. 31; QDG Br. 29. 64 Admin. Code § 18-118 is in all relevant respects indistinguishable from the statute construed in Friends of Van Voorhis Park. Nothing in Admin. Code § 18-118 indicates a legislative intention to override local land use law. Indeed, QDG’s and the City’s interpretation of the statute as allowing construction of any building serving a “broad range of permissible purposes” suggests the opposite. Under this interpretation, there is virtually nothing that could not be built on the Property. The City could have chosen to build a university campus or an amusement park or, as initially proposed by the Developers (A588-A597), a Queens world trade center or a casino instead of a shopping mall, or nothing at all. It is not the case, therefore, that the only decision that the Legislature left to the City “relates to the entities that the City might select as tenants and the business terms of any leases the City might execute with such persons.” QDG App. Div. Br. 41; City Br. 41, 45. The land use impacts and implications of each of those choices would be enormously different. If the Developers’ and the City’s interpretation of the statute’s breadth and allowance of construction were correct – which it is not – there would be no land use review whatsoever of any of these options. Waybro, 67 N.Y. 2d 349, relied on by QDG below and by the City, City Br. 42, does not support their argument. The Urban Development 65 Corporation Act construed there was a State general law enacted specifically to override local laws, to end the “costly delays” caused by “impenetrable layers of bureaucratic red tape.” Waybro, 67 N.Y.2d at 356. Similarly, the Public Service Law provisions at issue in Consolidated Edison Co. v. Town of Red Hook, 60 N.Y.2d 99 (1983), and Nash Metalware Co. v. Council of N.Y., 14 Misc. 3d 1211(A), 1211A (S. Ct. N.Y. Co. 2006), also relied on below by QDG, were specifically enacted to override local law so as to facilitate the siting of major electric generating facilities in the face of local government objections.26 Unlike the statutes construed in Waybro, Town of Red Hook, and Nash Metalware, Admin. Code § 18-118 was not enacted to override local law, but rather at the City’s behest, on a home rule message. So it is not surprising that it explicitly requires that local procedure be followed. Under the current Charter, this means that the new lease and new zoning must be approved by the City Council through ULURP. Because nothing in Admin. Code § 18-118 suggests that the City, which drafted it, or the Legislature, which enacted it, intended to overrule local 26 In other cases cited by QDG and the City, the local laws were directly inconsistent with State law and were held to be preempted. Baldwin Union Free School District v. County of Nassau, 105 A.D.2d 113 (2d Dept. 2013) (county law that purported to supersede a State law relating to taxation); Turnpike Woods, Inc. v. Stony Point, 70 N.Y.2d 735 (1987) (local zoning law that did not follow prescribed procedure for superseding State law, and that was inconsistent with State law, held invalid). Here, ULURP and the Zoning Resolution do not purport to supersede Admin. Code § 18-118, nor are they inconsistent with it. procedures concerning land use, this Court should allow Petitioners' claims that the Developers and the City were required to comply with ULURP and zoning. CONCLUSION THE DECISION OF THE APPELLATE DIVISION SHOULD BE AFFIRMED; ALTERNATIVELY, THIS COURT SHOULD REMIT TO THE APPELLATE DIVISION FOR ITS CONSIDERATION OF THOSE CLAIMS NOT PREVIOUSLY ADDRESSED BY IT. Dated: New York, New York October 7, 2016 Respectfully submitted, ~ 415 8th Street Brooklyn, New York 11215 (718) 7 44-5245 jlowbeer@yahoo.com LORNA B. GOODMAN Law Office of Lorna Goodman 551 Madison Ave., 7th floor New York, New York 10022 (212) 223-7400 glornab@gmail.com 66