In the Matter of Senator Tony Avella, et al., Respondents,v.City of New York, et al., Respondents, Queens Development Group, LLC, et al., Appellants.BriefN.Y.April 25, 2017APL 2015-00298 New York County Clerk’s Index No. 100161/14 Court of Appeals of the State of New York SENATOR TONY AVELLA, THE CITY CLUB OF NEW YORK, NEW YORK CITY PARK ADVOCATES, QUEENS CIVIC CONGRESS INC., BONO SAWDUST SUPPLY CO. INC., LEGACY WIRELESS INC., MORENA’S BOUTIQUE CORP., NEW YORK 128 REALTY CORP., SIJ INC., ST. JOHN ENTERPRISES INC., JOSEPH ARDIZZONE, ALFREDO CENTOLA, PAUL GRAZIANO, BENJAMIN M. HABER, MARTY KIRCHNER, NATALIA PERALTA and JOSE TORRES, Petitioners-Plaintiffs-Respondents, For a Judgment Pursuant to CPLR Art. 78 and General Municipal Law 51 and for a Declaration Pursuant to CPLR 3001, – against – (For Continuation of Caption See Inside Cover) BRIEF FOR AMICI CURIAE NATURAL RESOURCES DEFENSE COUNCIL, SIERRA CLUB, ATLANTIC CHAPTER, AND PARKS & TRAILS NEW YORK IN SUPPORT OF PETITIONERS-PLAINTIFFS-RESPONDENTS ALBERT K. BUTZEL Albert K. Butzel Law Offices Attorneys for Amicus Curiae Natural Resources Defense Council and Parks & Trails New York 1125 Park Avenue, Suite 9E New York, New York 10128 Tel.: (212) 831-9146 Fax: (212) 831-4870 JONATHAN L. GEBALLE, ESQ. Attorney for Amicus Curiae Sierra Club 11 Broadway, Suite 615 New York, New York 10004 Tel.: (212) 732-0800 Fax: (212) 480-8560 Dated: February 13, 2017 CITY OF NEW YORK, BILL DE BLASIO, as Mayor of the City of New York, CITY COUNCIL OF THE CITY OF NEW YORK, NEW YORK CITY PLANNING COMMISSION, LIAM KAVANAGH, as Acting Commissioner, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION and KYLE KIMBALL, as President of New York City Economic Development Corporation and Chair of the Board, NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY, Respondents-Defendants-Respondents, QUEENS DEVELOPMENT GROUP, LLC, RELATED WILLETS, LLC, STERLING WILLETS LLC and QUEENS BALLPARK COMPANY, L.L.C., Respondents-Defendants-Appellants. CORPORATE DISCLOSURE STATEMENT Pursuant to 22 NYCRR § 500.1(f): Proposed Amicus Natural Resources Defense Council states that it is a nonprofit corporation, and that it has no corporate parents, subsidiaries or affiliates, except that the NRDC Action Fund, a Section 501(c)(4) nonprofit corporation, is an affiliate of NRDC. Proposed Amicus Sierra Club, Atlantic Chapter, states that it is the New York chapter of the Sierra Club, a nonprofit corporation headquartered in San Francisco, California, and otherwise that it has no corporate parents, subsidiaries or affiliates. Proposed Amicus Parks & Trails New York states that it is a nonprofit corpora- tion, and that it has no corporate parents, subsidiaries or affiliates. i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ……………………………………………... ii INTRODUCTION ……………………………………………………….... 1 INTERESTS OF AMICI ………………………………………………….. 6 SUMMARY OF FACTS ………………………………………………….. 11 ARGUMENT ……………………………………………………………… 15 Point One. THE CONSTRUCTION OF A SHOPPING MALL IN FLUSHING MEADOWS PARK HAS NOT BEEN AUTHORIZED BY THE STATE LEGISLATURE AND WOULD VIOLATE THE PUBLIC TRUST DOCTRINE … 15 Point Two. THE APPELLANTS CAN, AND SHOULD BE REQUIRED TO, SEEK APPROVAL FOR THE MALL FROM THE STATE LEGISLATURE ……………. 21 CONCLUSION ……………………………………………………………. 26 ii TABLE OF AUTHORITIES Page(s) Cases Ackerman v. Steisel, 104 A.D.2d 940 (2d Dept. 1984), aff’d 66 N.Y.2d 833 …….……….. 4, 17 Aldrich v, City of New York, 208 Misc. 930 (Queens Co. 1955), aff’d 2 A.D.2d 760 (2d Dep’t 1956) …………………………….… 5, 17, 20, 22 Avella v. City of New York, 131 A.D.3d 77 (1st Dep’t 2015) …………………………...…… 14, 15, 20 Brooklyn Park Commissioners v. Armstrong, 45 N.Y. 234 (1874) …………………………………………………. 15, 16 Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 (2001) ………………………………………… 4, 5, 17, 22 In re Central Parkway, Schenectady, 140 Misc. 727 (Sup. Ct. Schenectady Co. 1931) ………….....….…. 18, 20 In re City of New York, 249 A.D. 633 (2d Dep’t 1936) ……………………………..…………... 12 In re Property from Flushing Bay to Interborough Parkway etc. (Proceeding in the matter of the application of the City of New York relative to acquiring title to real property selected by the Commissioner of Parks of the City of New York for public park purposes, etc.) 166 Misc. 864 (Sup. Ct. Queens Co. Special Term 1937) ……………... 12 John Kennedy & Co. v. World’s Fair 1939, 260 A.D. 386 (2d Dep’t 1940) ………………………………...……….. 12 iii Lake George Steam Boat Co. v. Blais, 30 N.Y.2d 48 (1972) ………………………………………….……. 18, 19 Merriwether v. Garrett, 102 U.S. 472 (1880) ……………………………………….......…….…. 15 Miller v. New York, 15 N.Y.2d 34 (1964) ………………………………………….….…………. 2 Williams v. Gallatin, 224 N.Y. 228 (1920) …………………………………….…….……. 16, 17 Statutes New York City Administrative Code Section 18-118 …………………………………………………….. passim Other Sources Robert Caro, The Power Broker (Knopf, 1974) ……………………….…… 12 F. Scott Fitzgerald, The Great Gatsby (Scribner’s, 1925) …………….... 11, 12 Robert Moses, The Saga of Flushing Meadow Park (April 1966) available at http://www.nywf64.com/saga02.shtml …………………….. 13 NYC Department of Environmental Protection, Statement of Findings for the Siting of the Croton Water Treatment Plant, Part III (2004), available at http://www.nyc.gov/html/dep/pdf/crfindings.pfd ………………………. 22 NYC Department of Parks and Recreation, The Yankee Stadium Park Redevelopment Project, available at www.nycgovparks.org/park-features/future- parks-yankee-stadium-redevelopment …………………………………… 24 iv New York State Assembly, Memorandum in Support of Legislation: Bill No. A8932 (2005) available at http://goodjobsny.org/sites/default/ files/docs/yankee_statelegislation.pfd ……….………….……………… 23 New York State Assembly, Memorandum in Support of Legislation: Bill Number A7826 (2016), available at http://assembly.state.ny.us/leg/?default_ fld=&bn=A7826&term=2013&Memo= …………………………………. 24 Dana Rubinstein, A Tennis Center Expansion in Queens Requires a Tricky Definition of ‘Public,’ Politico New York, Jan. 22, 2013 available at http://www.politico.com/states/new-york/albany/ story/2013/01/a-tennis-center-expansion-in-queens-requires-a- tricky-definition-of-public-000000 ……………………...……………… 24 Adam Wisnieski, Croton Plant Still Stirs Anger, Questions about Water Project, CityLimits (2015), available at available at http://citylimits.org/2015/06/17/croton-plant- still-stirs-anger-questions-about-water-projects ….…………..…………. 23 1 INTRODUCTION This Brief amicus curiae is submitted on behalf of Natural Resources Defense Council, the Sierra Club, Atlantic Chapter, and Parks & Trails New York, three leading environmental organizations that have a special interest in the application of the public trust doctrine in this case and more broadly in New York State. They submit this Brief in support of the position of the Petitioners- Respondents Tony Avella et al. (the “Avella Respondents”) and the decision of the Appellate Division below, which held that the City of New York and its development partners (“Appellants”) could not construct a regional shopping center on dedicated parkland in Flushing Meadows Park without first obtaining the specific and direct approval of the State Legislature, as required by the public trust doctrine. In their Briefs, the Appellants and Avella Respondents both emphasize that this is a case centered on statutory interpretation, the essential question being whether the 1961 legislation that authorized the construction of Shea Stadium in Flushing Meadows Park also allowed the development, 55 years later, of a shopping mall in the Park. For the Amici, however, the urgency of the case centers on whether the protections afforded dedicated parkland under the State’s public trust doctrine are 2 to be significantly diluted by a conclusion that a few offhand words will suffice when it comes to the requisite State legislative approval and whether this Court’s prior holdings that any legislative consent must be direct, specific and plainly conferred are to be overridden. The statute in issue – City Administrative Code Section 18-118 – was adopted by the Legislature in 1961 for one paramount purpose – to allow the construction, financing and leasing of a stadium in Flushing Meadows Park that would serve as a home for the New York Mets and other sports teams.1 The Legislature was direct and specific in this regard – the statute was for the purpose of authorizing a stadium and facilities that would serve it or serve to help with its financing. It is beyond dispute that at the time, no one in the Legislature and no one proposing the bill thought that they were authorizing the construction, many years later, of a shopping mall or any other commercial facility having no relationship with the Stadium. The appellants, however, latch onto seven words out of the 270 included in the purposes subsection of the legislation – “for the improvement of trade and commerce” – to support their 1 The fact that the stadium and its appurtenant parking lots were to be located in Flushing Meadows Park was explicitly recognized in Section 18-118(a), which states that they are “to be constructed by the city on certain tracts of land described in subdivision c of this section, being a part of Flushing Meadow park.” Compliance with the public trust doctrine was thus essential. This was the case not only because the stadium was not unambiguously a “park use,” but also because the contemplated leasing of the facility, even if it did constitute a “park use,” required State legislative approval. Miller v. New York, 15 N.Y.2d 34 (1964). 3 contention that whatever the Legislature’s specific intent in 1961, the general intention was to authorize the widest possible scope of permissible future development and provide the City with the greatest possible flexibility in choosing how to use dedicated parkland in the future. The speciousness of the Appellants’ efforts to interpret Section 18-118 into something it is not is spelled out at great length by the Avella Respondents in their Briefs. As they note, by every applicable rule of statutory interpretation, the Appellants’ attempts to recast the statute to authorize the construction of a regional shopping center on what all parties acknowledge is dedicated parkland do not stand up. Equally to the point, the Appellants’ contention does not make common sense. There is no mention of a shopping center in the legislation. There is no allusion to it. There is no language or context to suggest that the Legislature was thinking in terms of future commercial development. If there was a “plain meaning” to the statute – and we believe there was – it was to allow a stadium to be built and leased for professional sports and other recreational purposes. It was to make New York great again after the Dodgers and the Giants headed west – to recapture the glory days. It was to create a home for the Mets, and later for the Jets. It had nothing to do with the development of a mall in Flushing Meadow Park – then or at any future time. Despite the Appellants’ corkscrew-like arguments, there is, Amici suggest, no rational reading to support 4 them. On its face, Section 18-118 allowed a stadium and appurtenant facilities, including parking lots, to be constructed on parkland. On its face, it did not authorize a freestanding, 200-store shopping center to be built in the Park. For the Amici, however, the critical issue presented on this appeal is not how Section 18-118 is parsed, but rather how strictly the public trust doctrine is applied in this case, and how strictly it will be applied in future cases. That common law doctrine provides that once land has been acquired or dedicated for use as a public park, it cannot be used for any other purpose, in whole or in part, even for another public purpose, without the specific and explicit approval of the State Legislature. Whatever the claimed needs of the municipality within which the park is located, it is powerless on its own to divest the public of dedicated parkland. The consent of the Legislature is the absolute condition precedent. And under the law, that consent has to be informed. It has to be “specific” and “direct” and “plainly conferred.” Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 (2001). No less will do because what is involved in efforts to alienate parkland is the public weal, the public trust. Municipalities are too often tempted to use parkland for other purposes, ranging from claimed eco- nomic development as in this case to providing parking space for garbage trucks, as in Ackerman v. Steisel, 104 A.D.2d 940 (2d Dept. 1984), aff’d 66 N.Y.2d 833. The Legislature stands as the guardian of the broader public interest. It could 5 hardly fill that role if a few obscure words in a statute that had as its unambiguous purpose to authorize the construction of a stadium on dedicated parkland were taken as “direct and specific” approval, 55 years later, of a regional shopping mall never contemplated when the statute was passed. In this regard, the requirement for direct and explicit approval plainly conferred is not merely a gloss on the public trust doctrine; it lies at the very heart of it. The protections that it affords rest on the Legislature weighing the pros and cons of a proposed alienation, something it can only do if the terms and scope of the alienation are clear. For this reason, alienations by inference have consistently been rejected. See, e.g., Aldrich v, City of New York, 208 Misc. 930 (Queens Co. 1955), aff’d 2 A.D.2d 760 (2d Dep’t 1956), cited with approval in Friends of Van Cortland Park, 95 N.Y.2d 623, 630 (2001). As cases like Aldrich and Van Cortlandt illustrate, the public trust doctrine carries with it its own imperative of statutory interpretation that qualifies any other general canon: the Legislature’s intention to allow an alienation – whether through transfer or by authorizing non-park uses – must be clear, specific, even explicit. The Appellants’ claim that Article 18-118 supports construction of a mall in Flushing Meadows Park does not come close to meeting this standard. It need not be this way, of course. If the City and its development partners want to build a shopping center on dedicated parkland, all they need do 6 is persuade the Legislature to allow it explicitly. If they are so sure that this is what the Legislature intended in 1961, let the Legislature confirm that intention today. Within the past 15 years, it has done so in three comparable instances: Yankee Stadium, the Louis Armstrong Tennis Stadium and the water treatment plant in Van Cortlandt Park. In each of these cases, the State Legislature approved the alienation, but with conditions that required the City to provide substitute parkland or fund major improvements in other neighboring parks. In this way, the public interest was addressed, as the courts intended the public trust to do. If the doctrine were now to be modified to allow the proposed mall to be built in Flushing Meadows Park without the specific approval of the State Legislature, the protections that it affords parkland in New York would be severely undercut. The Amici urge this Court to reject such an outcome and affirm the decision of the Appellate Division. INTERESTS OF THE AMICI Amici are three leading environmental organizations headquartered in New York. Described in greater detail below, they share a common history and a common interest in supporting and protecting parkland in the State. They have a particular interest in this case because the public trust doctrine, as developed by New York’s courts, has played a critical role in ensuring that dedicated parkland is not cast aside in response to perceived local needs or preferences 7 without the approval of the State Legislature, which stands as the guardian and trustee of these public resources. Amici believe that the Appellate Division correctly decided that the City and its development partners had not secured the requisite legislative consent for their mall project and therefore had not complied with the public trust doctrine. However, this Court’s granting of leave to appeal raises the possibility that the First Department’s decision could be reversed, an outcome that, in Amici’s opinion, would sharply restrict the protections that the doctrine has afforded to dedicated parkland, not only in this case but for parks across the State. For that reason, and because of their history of speaking out and acting on behalf of a broad constituency of New York park users and park advocates, they seek to bring their views before this Court in aid of its decisional process. The Amici include the following: The Natural Resources Defense Council (“NRDC”) is one the nation’s leading public interest environmental advocacy organizations. Founded in 1970, today NRDC has, nationwide, more than 2.4 million members and online activists. These include more than 100,000 members and online activists in New York, many of whom regularly visit and enjoy its State and City parks, including Flushing Meadows-Corona Park. 8 From the time it was founded, NRDC has worked to defend some of the State’s most significant parks and natural resources. These efforts began in 1970 at Storm King Mountain, where NRDC was one of the central actors and litigation partners in defeating a massive power plant proposed for the Hudson Highlands and adding the plant site to the Palisades Interstate Park. In the late 1970s, successful NRDC litigation helped expand the size of the newly-created Gateway National Recreation Area. Over the years, the organization has also been active in advocating for the protection of the Catskill Park. Beginning in the late 1990s, NRDC has advocated on behalf of local neighborhoods and broader constituencies to preserve community gardens. From 1997 through 2007, NRDC was part of the successful campaign to establish and fund the new Hudson River Park on Manhattan’s Lower West Side waterfront. And most recently, it was one of the principal organizations that fought successfully to reduce the height of a 145-foot high office tower LG Electronics proposed to build on top of the Palisades cliffs, a structure that would have severely marred these National Historic and Natural Landmarks, including views from Fort Tryon Park and the Cloisters. Finally, while perhaps less relevant in this case, over its 45-year history, NRDC has waged many battles to protect and preserve some of the Nation’s most treasured places, helping to draft and enact federal parkland law in the 9 U.S. Congress, participating in numerous federal administrative rulemakings before the National Park Service and litigating to ensure the preservation and non-impairment of park resources nationwide. It also led national campaigns to create 100 million acres of national parks and wildlife refuges in Alaska and engaged in the defense of Yellowstone, the Grand Canyon, and the Everglades. The Sierra Club is a national environmental organization founded in California in 1892 by naturalist and explorer John Muir with the mission to “explore, enjoy and protect the wild places of the earth.” The Sierra Club has approximately 600,000 members nationwide with approximately 37,000 members in New York State, including many members who use and enjoy the City’s parks and whose interests would be damaged by the unauthorized and unlawful transfer of parkland for non-park purposes. The Atlantic Chapter of the Sierra Club was formed in 1950 and is responsible for the Club’s member- ship and activities in New York State. As such, it deals with a variety of environmental issues in the State related to parks, land use and development, pollution, energy, recycling, endangered species and habitat protection. The protection of parkland is a key aspect of the work of the Sierra Club and the Atlantic Chapter. At the national level, the Club initiated the campaigns that resulted in the establishment of a number of our greatest national parks, and it has fought to protect them and other important natural areas from untoward 10 incursions, including two dams proposed for the Grand Canyon. The Club has also been actively involved in some of the most important park-related battles in New York State, including, starting in 1965, the Storm King struggle, where it was a primary actor in the litigation that defeated that project, and starting in 1997, it was the lead plaintiff in the administrative proceedings and subsequent litigation that led to the defeat of the proposed Westway highway project and the eventual creation of Hudson River Park. The Atlantic Chapter has also fought to protect the Minnewaska/Shwangunk Mountain area and the Adirondack Forest Preserve, among other efforts. Parks & Trails New York, Inc. (“PTNY”) is a 501(c)(3) New York Not- for-Profit corporation whose mission is “to expand, protect and promote a network of parks, trails and open spaces throughout New York State for the use and enjoyment by all.” Incorporated in 1992, PTNY is the leading statewide group in New York with the primary purpose of educating the public about the value of parks, advocating for their proper funding, operation, maintenance and use, assisting park users in deriving benefits from their natural qualities, and seeking to protect them and the public’s enjoyment thereof. In support of its mission, PTNY has published a series of influential park reports, advocates for statewide parks funding, organizes volunteers to maintain neighboring parks, helps create and foster “Friends” groups, and makes monetary 11 grants to grassroots parks organizations around the State. When a legal issue of particular importance relating to parks arises, PTNY may also seek to participate as a friend of the court, as it asks to do in this matter. State parks are a major focus of PTNY’s work, and the “public trust” issue involved in this appeal has potential implications for that system and its millions of users. Indeed, if this Court were to conclude that the non-specific language included in Article 18-118 was sufficient to allow a shopping center in Flushing Meadows Park, the consequences for State parks, many of which have been created with similar language or in which limited non-park uses have been permitted, could be severe. In addition, PTNY frequently works with local communities on park issues and thus is particularly concerned with the issue of park alienation. The organization serves as a watchdog for alienations, reviewing all alienation bills and posting them on its website, in the hope of making the alienation process more transparent. SUMMARY OF FACTS Amici respectfully refer the Court to the Statement of Facts in the Briefs of the Avella Respondents for a full description of the relevant facts and the pro- ceedings below. We summarize the most salient facts from our perspective. Flushing Meadows Park was created from a former dumping ground that was characterized as “a valley of ashes” in F. Scott Fitzgerald’s The Great Gatsby. 12 The site, known at the time as the Corona Ash Dumps, was being filled with ashes from coal-burning furnaces and other rubbish. As Fitzgerald described it: About half way between West Egg and New York the motor road hastily joins the railroad and runs beside it for a quarter of a mile, so as to shrink away from a certain desolate area of land. This is a valley of ashes -- a fantastic farm where ashes grow like wheat into ridges and hills and grotesque gardens; where ashes take the forms of houses and chimneys and rising smoke, and finally, with a transcendent effort, of ash-gray men who move dimly and already crumbling through the powdery air. It is this “valley of ashes” that in 1936, Parks Commissioner Robert Moses identified as suitable for a future park and, more immediately, as a site for the 1939-1940 World's Fair. Using his powers as Parks Commissioner, he set about acquiring the property for park use, often through condemnation (see, e.g., In re Property from Flushing Bay to Interborough Parkway etc. (Proceed- ing in the matter of the application of the City of New York relative to acquiring title to real property selected by the Commissioner of Parks of the City of New York for public park purposes, etc.), 166 Misc. 864 (Sup. Ct. Queens Co. Special Term 1937); In re City of New York, 249 A.D. 633 (2d Dep’t 1936); John Kennedy & Co. v. World’s Fair 1939, 260 A.D. 386 (2d Dep’t 1940).2 2 In The Power Broker, Robert Caro, quoting from Richard Herring’s “Robert Moses and his Parks,” (Harper’s Magazine, Dec. 1937), writes that Moses very swiftly prosecuted over 600 condemnation actions to acquire the Flushing Meadow land for the park. “By May 15th [1936] Moses was in possession of the property, leaving it for the courts to decide later how much would be paid. . . . The work of filling and grading was begun on schedule – and finished on schedule.” Robert Caro, The Power Broker (Knopf, 1974), 569-470. 13 Once he had title to the land, Moses immediately undertook to remove the ash piles and fill, grade and redevelop the site so that it would be ready to host the 1939-40 World’s Fair. His idea, as he wrote some years later, was to use the profits from the Fair to build out the new Flushing Meadows Park.3 Unfortunately, as he also wrote, the Fair did not turn a profit and World War II intervened, so aside from removing many of the Fair structures, Moses was unable at the time to develop the park that he had envisioned. But the intent remained, and the property remained dedicated and mapped as parkland. In sub- sequent years, it was used for the 1964-65 World’s Fair and later as a commuter parking lot. Then, in 1961, the City proposed, and the State Legislature approved, using a portion of the parkland (referred to in this case as “Willets West”) for a stadium and “appurtenant” facilities, including parking lots. The legislative approval was given in the form of Section 18-118 of the City’s Administrative Code – a statute that identified the Willets West site as parkland, specifically and frequently referred to the authorized project as a stadium, and neither mentioned nor inferred that the authorization included a shopping center. Almost 50 years later, Shea Stadium was torn down and replaced by Citi Field, which opened in 2009. The Willets West site, still dedicated parkland, 3 Robert Moses, The Saga of Flushing Meadow Park (April 11, 1966) available at http://www.nywf64.com/saga02.shtml (last visited January 26, 2017) 14 provided parking for the new stadium when ballgames were played there. At other times, it was – and continues to be – used regularly by the public for a variety of recreational activities, including wheelchair baseball games, marathon races, concerts, individual exercise and the like. (Appendix 28-29, 611-617). Four years ago, the City and its development partners announced their plans to build a major shopping center on the Willets West site. Although they acknowledged that the site was dedicated parkland, they did not ask the State Legislature for approval and in some ways seemed oblivious to the requirement. When challenged, they took the position that Section 18-118 granted them the authority to proceed without any further action by the Legislature. Early in 2014, the Avella Respondents initiated this proceeding seeking a declaratory judgment and an injunction against construction of the mall. The Supreme Court (Mendez, J.) agreed with the Appellants and dismissed the case. On appeal, the First Department unanimously reversed the lower court and enjoined construction of the shopping center. In doing so, the Appellate Division held 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 Dep’t 2015). After examining the language of the statute in depth, the court concluded that, “No reasonable reading 15 of Administrative Code section 18-118 allows for the conclusion that the legis- lature 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. ARGUMENT Point One THE CONSTRUCTION OF A SHOPPING MALL IN FLUSHING MEADOWS PARK HAS NOT BEEN AUTHORIZED BY THE STATE LEGISLATURE AND WOULD VIOLATE THE PUBLIC TRUST DOCTRINE Of ancient origin, dating from Roman times and carried forward into English common law, the public trust doctrine was initially applied in the United States to docks, roadways and public buildings. The general rule, as laid down by the Supreme Court in Meriwether v. Garrett, 102 U.S. 472, 513 (1880), was that In its streets, wharves, cemeteries, hospitals, courthouses and other public buildings the [municipal] corporation has no proprietary rights distinct from the trust for the public. It holds them for public use, and to no other use can they be appropriated without special legislative sanction. It would be a perversion of that trust to apply them to other uses. Even before the Meriwether decision, this Court concluded that in New York, the public trust doctrine also applied to, and governed, the alienation of public parks. Thus, in Brooklyn Park Commissioners v. Armstrong, 45 N.Y. 234 (1871), the Court wrote: 16 It is to be observed that the act of 1861 vested the lands in the city of Brooklyn forever, but for the uses and purposes in that act mentioned. Though the city took the title to the lands by this provision, it took it for the public use as a park, and held it in trust for that purpose. Of course, taking the title, had it taken it also free from such trust, it could have sold and conveyed it away, when and as it chose. Receiving the title in trust for an especial public use, it could not convey without the sanction of the legislature . . . 45 N.Y. at 239 (emphasis added) This early articulation of the public trust doctrine as applicable to parks was given added emphasis and specificity in the 1920 decision of Williams v. Gallatin, 229 N.Y. 248, in which this Court held that the location of a museum of safety and sanitation in Central Park violated the public trust doctrine and was illegal because it constituted a non-park use that had not been clearly authorized by the State legislature. As the Court observed: [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 . . . .” 229 N.Y. at 253 (emphasis added) Since the decision in Williams v. Gallatin, the New York courts have regularly reaffirmed the applicability of the public trust doctrine to parkland and enjoined proposed non-park uses in the absence of legislative authorization. In reaching these decisions, the courts have also regularly reaffirmed that such 17 legislative authorization, if given, must be “direct,” “specific” or, as described in Williams, “plainly conferred.” In one of the most important precedents – Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 632 (2001) – this Court used exactly those terms, citing Ackerman v Steisel, 104 A.D.2d, 940, 941 (2d Dep’t 1984), aff’d 66 N.Y.2d 833 (“Dedicated park areas in New York are impressed with a public trust and their use for other than park purposes, either for a period of years or permanently, re- quires the direct and specific approval of the State Legislature, plainly conferred.”) (emphasis added). In Aldrich v. City of New York, 208 Misc. 930 (Sup. Ct. Queens Co. 1955), aff’d 2 A.D. 2d 760 (2d Dep’t 1956), a case in which the attempted alienation, without legislative authorization, of a section of Jacob Riis Park on the Rockaway Peninsula was invalidated and enjoined, the court underscored the specificity with which the Legislature’s approval needed to be framed. It has been held that legislative authority permitting encroach- ment upon park purposes must be "plainly conferred." (Williams v. Gallatin, 229 N.Y. 248, 253, 128 N.E. 121, supra.) 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" . . . others that such authority must be "specific" . . . or "direct" . . . or "express" . . . 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. 18 140, 152), and it seems clear that the legislative authority must be plain. 208 Misc. at 939 (most citations omitted). In In re Central Parkway, Schenectady, 140 Misc. 727 (Sup. Ct. Schenectady Co. 1931), the Supreme Court invalidated the attempted alienation of parkland for a road, stating that “municipal corporations cannot without express authority from the Legislature appropriate any part of a public park to laying out streets and public highways because these uses are inconsistent with and destructive of park uses.” Id. at 729 (emphasis added). In Lake George Steam Boat Co. v. Blais, 30 N.Y.2d 48 (1972), the Village of Lake George leased a dock and certain related facilities to a private company for the operation of paid sightseeing tours. The property had been deeded to the Village in part “for public park purposes” and in part “for the sole purpose of erecting a dock or docks and dock facilities for the benefit of the Village.” The lease arrangement was challenged as in violation of the public trust doctrine, and this Court agreed: It has long been the rule that a municipality, without specific legislative sanction, may not permit property acquired or held by it for public use to be wholly or partly diverted to a possession or use exclusively private. . . . Id. at 51. 19 The Court found that the lease had been made in violation of the rule, emphasizing the specificity required for any legislative approval: Only the Legislature has [the] authority [to approve an alienation of parkland]. Moreover, legislative sanction must be clear and certain to permit a municipality to lease public property for private purposes. (American Dock Co. v. City of N. Y., supra.) 30 N.Y.2d at 52 (emphasis added). The preceding cases underscore the tenet that park alienations are a matter of high public interest and are not to be easily assumed or inferred. The necessity of clarity is emphasized again and again in these cases, and not as a second thought. It goes to the heart of the public trust doctrine. If the public weal is to be diminished through the loss of parkland, the legislative intention must be clear. It must be “direct and specific . . . [and] plainly conferred.” It must be “clear and certain.” The Appellants’ arguments and their tortured reading of Section 18-118 do not begin to meet this standard. There is nothing to support their contention that seven words in a statute that does not once mention a shopping center as a subject of the legislation constitutes the kind of direct and specific authorization required by the case law and the policy that underlies the public trust doctrine. Nor are the Appellants able to point to any legislative history or other source to support their claim that the Legislature somehow intended to approve the use of what it recog- nized as parkland for anything other than a stadium and its appurtenant facilities, 20 much less that it meant to give the City a perpetual free hand to use the land for any commercial development that it happened to favor at the moment. As the Appellate Division held: “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.” Avella v. City of New York, 131 A.D.3d at 86. Moreover, even if there were some basis in the seven words the Appellants cite for contending that these authorized uses other than a stadium or were meant to give the City a virtual free hand in what it could construct on the Willets West site, that reading does not rise to the standards of specificity required by the case law. As the court observed in Aldrich v. City of New York, supra, where the City argued that another statutory provision constituted the necessary authorization to alienate parkland in Jacob Riis Park: As previously noted, statutory authority either to encroach upon park purposes or to alienate park lands must be plain . . . The authority conferred by section 383 of the New York City Char- ter is anything but plain. It is, at best, extremely doubtful that power to discontinue or close a park (indispensable to the sale of park property) has been conferred. Such being the case, "the power should be denied." (Matter of City of New York [Piers Old Nos. 8-11], 228 N.Y. 140, 152, supra.) 208 Misc. at 942. See also In re Central Parkway, Schenectady, supra, 140 Misc. at 729-30. 21 So, too, in this case, if there were doubt – which, we submit, there is not – the outcome should be the same: the claimed authorization to build and lease a shopping mall in Flushing Meadows Park should be rejected. Point Two THE APPELLANTS CAN, AND SHOULD BE REQUIRED TO, SEEK APPROVAL FOR THE MALL FROM THE STATE LEGISLATURE Through their tortuous reading of Section 18-118, the Appellants attempt to construct a case that the State Legislature has already given its approval to the construction of a mall on dedicated parkland. For the reasons set forth above in this Amicus Brief and at greater length in the briefs of the Avella Respondents, that reading is unsustainable, and all the more so in light of the public trust doctrine, which requires that any legislative authorization must be ‘specific” and “direct” and “plainly conferred.” There is another point to be made, however. This is that nothing prevents the Appellants from seeking specific authorization at this point. If they believe that the State Legislature intended, directly or indirectly, to allow a shopping center to be built in Flushing Meadows Park, they can – and should – return to the Legislature to ask it to approve the plan. As we have noted before, in cases of doubt – and there is certainly doubt, if not incredulity, in this instance – the presumption is that the Legislature did not intend to allow incursions into the 22 public trust. Aldrich v, City of New York, 208 Misc. 930 (Queens Co. 1955), aff’d. 2 A.D.2d 760 (2d Dep’t 1956), cited with approval in Friends of Van Cortlandt Park, 95 N.Y.2d at 630. But that is not an absolute bar. The Legislature remains open to being persuaded that the proposed mall is appropriate in light of all the circumstances, including those pertaining to the renewal of Willets Point that the Appellants insist justify the construction of the shopping center on dedicated parkland. Rather than seeking to have their claims determined by the courts, the Appel- lants should be making their case to the Legislature. This is not only the proper course – it is the course that has been followed regularly up to now, the course that precedent supports. The prime example is the Van Cortlandt Park case, where the City proposed to locate an underground water treatment plant on dedicated parkland. This Court found that to be an alienation, and the City then had to seek legis- lative authorization. In the end, the Legislature approved the non-park use, but only after the City committed to invest $43 million in upgraded facilities in Van Cortlandt Park, plus an additional $200 million for improvements to other City parks in the Bronx. See, NYC Department of Environmental Protection, State- ment of Findings for the Siting of the Croton Water Treatment Plant, Part III (2004), available at http:www.nyc.gov/html/dep/pdf/crfindings.pdf; see also, 23 Adam Wisnieski, Croton Plant Still Stirs Anger, Questions about Water Project, CityLimits (2015), available at http://citylimits.org/2015/06/17/croton-plant- still-stirs-anger-questions-about-water-project.4 The City thus received the approval it needed, but the Legislature, given the opportunity, ensured that it did so on terms that resulted in an overall improvement to the public trust. The new Yankee Stadium provides another case in point. There, in 2002, the City and the New York Yankees proposed to build a new baseball stadium on a 14-acre site that was dedicated as parkland. In this instance, the proposal was recognized to require, and was submitted for, State Legislative approval. The plan, however, was not limited to alienating existing parkland; it also called for a series of replacement parks, the acreage of which nearly doubled the public space to be taken for the Stadium. See New York State Assembly, Memorandum in Support of Legislation: Bill Number A8932 (2005),5 available at 4 CityLimits reported that “. . . To gain the backing of the Bronx Assembly delegation, [DEP Commissioner] Ward proposed more than $200 million in funds from the DEP to improve parks across the Bronx. And so the entire Bronx delegation, except [local Assembly Member] Dinowitz, voted in favor of the project. On the last day of the 2003 legislative session in the middle of the night, a bill to temporarily alienate parkland passed the Assembly with 78 votes, two more than it needed.” 5 In relevant part, the Memorandum reads: “Section 3 stipulates that the authorizations [to alienate parkland] set out in section 2 are subject to the requirement that the City dedicate the existing Yankee Stadium to park use, acquire additional park lands and/or dedicate land that is currently inaccessible by the public for park or recreational purposes and/or perform capital improvements to park and recreational facilities in the Bronx of equal or greater value than the fair market value of the parkland being alienated.”) 24 http://goodjobsny.org/sites/default/files/docs/yankee_statelegislation.pfd; see also NYC Department of Parks and Recreation, The Yankee Stadium Park Re- development Project, available at www.nycgovparks.org/park-features/future- parks-yankee-stadium-redevelopment. By imposing this requirement as a condition of the alienation, the Legislature was able to ensure that the public trust was enhanced, rather than diminished, by it acceptance of an alienation, and the approval was granted. A third, even more recent example is the 2015 expansion of the National Tennis Center in Flushing Meadows-Corona Park. The expansion required only 0.68 acres of parkland, but despite the small area, the proponents recognized that they needed State legislative approval for the alienation. The Legislature gave its consent, but on the condition that 1.56 acres of previously alienated land be returned to public park use. See New York State Assembly, Memorandum in Support of Legislation: Bill Number A7826 (2016), available at http://assembly. state.ny.us/leg/?default_fld=&bn=A7826&term=2013&Memo=; see also Dana Rubinstein, A Tennis Center Expansion in Queens Requires a Tricky Definition of ‘Public,’ Politico New York, Jan. 22, 2013, available at http://www.politico.com/ states/new-york/albany/story/2013/01/a-tennis-center-expansion-in-queens- requires-a-tricky-definition-of-public-000000. Here again, the result of the Legislature’s involvement was to ensure that the public trust was respected and 25 not diminished by the removal or conversion of public parkland for non-park purposes. The City and its development partners should be held to no less stringent a standard in this case. Indeed, the reasons the Legislature’s judgment should be sought in this instance are far more compelling than was the case for the water treatment plant, Yankee Stadium and the National Tennis Center. In each of those cases, there were factors of necessity, as in the case of the water treatment plant, or of public policy, as in the case of the Stadium and Tennis Center, that are not present here. The proposal in this case, in contrast, is to alienate parkland to support the construction of an intensely commercial regional shopping mall no different from any of the many such facilities that are currently operating in the metropolitan area and which have no possible connection to any public park purpose. Under the circumstances, it would not be surprising if the Legislature declined to give its approval to the alienation. But it remains open to the City and its development partners to give it try – to seek to convince the Legislature of what it is representing to this Court: that only by building a mall in Flushing Meadows Park can Willets Point be rescued. We doubt this to be the case for the reasons, among others, that the Avella Respondents have presented in their briefs. In the end, however, it is for the State Legislature to decide, as the Appellate Division held. We urge this Court to affirm that decision. 26 CONCLUSION The decision of the Appellate Division should be affirmed. Respectfully submitted, Albert K. Butzel Albert K. Butzel Law Office 1125 Park Avenue, 9E New York, NY 10128 Tel: (212) 831-9146 Email: akbutzel@gmail.com Jonathan L. Geballe, Esq. Attorney at Law 11 Broadway, Ste 615 New York NY 10004 Tel: (212) 732-0800 Email: jg@jonathangeballe.com Dated: February 13, 2017 PRINTING SPECIFICATIONS STATEMENT Pursuant to Rules 500.1(j) and 500.13(c)(1) of the Court of Appeals, the undersigned certifies as follows: 1. The proposed Amici’s brief was in the processing system Microsoft Word for Mac 2011, Version 14.7.1, with Times New Roman typeface, 14 point font (12 point footnotes). 2. The text of the brief has a word count of 6,349 words as calculated by the processing system and is 26 pages. Dated: February 13, 2017