APL-2013-00128 Nassau County Clerk’s Index Nos. 5006/09 and 17908/09 Appellate Division, Second Department Docket No. 2011-06799 Court of Appeals STATE OF NEW YORK Action 1 - Index No. 5006/09 DANIEL CAPRUSO, ALAN BERKOWER and ELIZABETH ALLEN, Plaintiffs-Respondents, against VILLAGE OF KINGS POINT, MICHAEL C. KALNICK, in his Official Capacity as Mayor of the Village of Kings Point, and BOARD OF TRUSTEES OF THE VILLAGE OF KINGS POINT, Defendants-Appellants. Action 2 - Index No. 17908/09 THE STATE OF NEW YORK, Plaintiff-Respondent, against VILLAGE OF KINGS POINT, Defendant-Appellant. >> >> To Be Argued By: Reed W. Super Time Requested: 30 Minutes BRIEF FOR PLAINTIFFS-RESPONDENTS IN ACTION NO. 1 SUPER LAW GROUP, LLC 131 Varick Street, Suite 1033 New York, New York 10013 212-242-2355 and ALBERT K. BUTZEL LAW OFFICE 249 West 34th Street, Suite 400 New York, New York 10001 212-643-0375 Attorneys for Plaintiffs-Respondents in Action No. 1 Of Counsel: Reed W. Super Albert K. Butzel Alexandra I. Hankovszky Date Completed: November 1, 2013 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................... i PRELIMINARY STATEMENT ........................................................................ 1 QUESTIONS PRESENTED ............................................................................... 3 SUMMARY OF ARGUMENT .......................................................................... 4 STATEMENT OF THE CASE ........................................................................... 5 A. The Public Trust Doctrine .............................................................. 5 B. Statement of Facts .......................................................................... 8 1. The Western Corner of Kings Point Park ............................ 9 2. Official Map ....................................................................... 11 3. 1946-1958 Park District Leases ......................................... 12 4. 1967 Session Law .............................................................. 14 5. Recreational Use ................................................................ 16 6. Existing Non-Park Use ...................................................... 17 7. Proposed Non-Park Use ..................................................... 18 C. Proceedings Below ....................................................................... 20 ARGUMENT .................................................................................................... 24 POINT I THE FIRST CAUSE OF ACTION IS UNQUESTIONABLY TIMELY BECAUSE IT SOUGHT AND OBTAINED RELIEF TO PREVENT PROPOSED FUTURE NON-PARK USE OF PARKLAND PRESENTLY USED FOR RECREATION .............................. 24 ii POINT II THE VILLAGE’S ONGOING USE OF THE WESTERN CORNER FOR NON-PARK PURPOSES CAN BE ENJOINED UNDER THE PUBLIC TRUST DOCTRINE SO LONG AS IT REMAINS UNAUTHORIZED ........................................................................................... 30 POINT III THE VILLAGE ABANDONED ITS LACHES DEFENSE, WHICH IS UNVAILABLE IN PUBLIC TRUST CASES AND WAS NOT ESTABLISHED BY THE FACTS ..................................................................................................... 43 CONCLUSION ................................................................................................. 50 iii TABLE OF AUTHORITIES Court of Appeals Cases Page 509 Sixth Ave. Corp. v. New York City Transit Authority, 15 N.Y.2d 48 (1964) .......................................................................................... 38 Ackerman v. Steisel, 66 N.Y.2d 833 (1985) ....................................................... 32 Bloomingdales, Inc. v. New York City Transit Auth., 13 N.Y.3d 61 (2009) .......................................................................................... 37-38 Brooklyn Park Commrs. v. Armstrong, 45 N.Y. 234 (1871) ........................................................................................................... 33, 34 Bulova Watch Co. v. Celotex Corp., 46 N.Y.2d 606 (1979) ................................................................................................................. 42 Burbank v. Fay, 65 N.Y. 57 (1875) ................................................................... 40 Burke v. Sugarman, 35 N.Y.2d 39 (1974) ......................................................... 44 Cash v. Bates, 301 N.Y. 258 (1950) ................................................................. 44 Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510 (1986) .......................................................................................................... 27 Copart Indus., v. Consolidated Edison Co. of New York, 41 N.Y.2d 564 (1977) ........................................................................................ 38 Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 (2001) ......................................................................... 6, 8, 33, 34, 35 Jensen v. General Elec. Co., 82 N.Y.2d 77 (1993) ........................................... 38 Martin v. Ronan, 44 N.Y.2d 374 (1978) reh’g denied, 45 N.Y.2d 776 ......................................................................................................... 27 Matter of Essex County v Zagata, 91 N.Y.2d 447 (1998) ................................. 27 Miller v. City of New York, 15 N.Y.2d 34 (1964) .......................................... 8, 14 iv Potter v Collis, 156 N.Y. 16 (1898) ................................................................... 35 Rovello v. Orofino Realty Co., 40 N.Y.2d 633 (1976) ...................................... 47 Sorrentino v. Mierzwa, 25 N.Y.2d 59 (1969) .................................................... 27 Telaro v. Telaro, 25 N.Y.2d 433 (1969) ............................................................ 43 Williams v. Gallatin, 229 N.Y. 248 (1920) .................................................. 33, 34 Other New York State Cases Ackerman v. Steisel, 104 A.D.2d 940 (2d Dept. 1984), aff’d, 66 N.Y.2d 833 (1985) ........................................... 12, 31, 32, 33, 37 Adirondack League Club v. Sierra Club, 201 A.D.2d 225 (3d Dept. 1994), aff’d in part and mod. on other grounds, 92 N.Y.2d 591 (1998). ....................................................................................... 38 Amax, Inc. v. Sohio Industrial Products Co., 121 Misc. 2d 814 (Sup. Ct. New York Cty. 1983) ............................................................ 39 Amerada Hess Corp. v. Acampora, 109 A.D.2d 719 (2d Dept. 1985) ................................................................................................................. 39 People v. Baldwin, 197 A.D. 285 (1921), aff’d, 233 N.Y. 672 (1922) .......................................................................................................... 40 Butler v. Gibbons, 173 A.D.2d 352 (1st Dept. 1991) ....................................... 42 Chatham Green, Inc. v. Bloomberg, 1 Misc. 3d 434 (Sup. Ct. New York Cty. 2003) ................................................................................... 33 Dreves v. New York Power Authority, 131 A.D.2d 182 (3d Dept. 1987) .................................................................................................. 27 Flacke v. NL Industries, Inc., 228 A.D.2d 888 (3d Dept. 1996) .................................................................................................................. 45 v Gignoux v. Village of Kings Point, 85 N.Y.S.2d 675 (Sup. Ct. Nassau Co. 1948), affd, 274 A.D. 1003 (2d Dept. 1948) ........................................................................................................ 39 Goodfarb v. Freedman, 76 A.D.2d 565 (2d Dept. 1980) .................................. 46 Gowanus Indus. Park, Inc. v. City of New York, 15 A.D.3d 311 (1st Dept. 2005), lv. denied, 5 N.Y.3d 708 (2005) ................................................................................................................. 33 Hampton Hgts. Dev. Corp. v. Bd. of Water Supply of the City of Utica, 136 Misc. 2d 906 (Sup. Ct. Uneida Co. 1987), aff’d, 140 A.D.2d 958 (4th Dept. 1988) ................................................ 39 In re Central Parkway, Schenectady, 140 Misc. 727 (Sup. Ct. Schenectady Co. 1931) ....................................................................... 33 Jones v. Amicone, 27 A.D.3d 465 (2d Dept. 2006) ........................................... 25 Kearney v. Atlantic Cement Co., 33 A.D.2d 848 (3d Dept. 1969) ......................................................................................................... 38 Kenny v. Board of Trustees of Vill. of Garden City, 289 A.D.2d 534 (2d Dept. 2001), lv. denied. 98 N.Y.2d 607 (2002) ............................................................................................................. 6, 28 Lazore v. Bd. of Trustees of Village of Massena, 191 A.D.2d 764 (3d Dept. 1993) .......................................................................... 6, 29 Lewis v. Village of Lyons, 54 A.D.2d 488 (4th Dept. 1976) .................................................................................................................. 40 Nassau County v. Bigler, 1 Misc. 3d 910(A), 781 N.Y.S.2d 626 (Sup. Ct. Nassau Cty. 2001) ...................................................... 46 Patrolman’s Benevolent Assn. of Southampton Town, Inc. v. Town of Southampton, 2009 NY Slip Op 32660[U], 2009 N.Y. Misc. LEXIS 4965 (Sup. Ct. Suffolk Cty. 2009) ............................................................................................................. 44-45 vi Riverview Partners, L.P. v. City of Peekskill, 273 A.D.2d 455 (2d Dept. 2000) ............................................................................. 6, 7, 28, 35 Rodrigues v. Catskill Revitalization Corp., 302 A.D.2d 762 (3d Dept. 2003) ..................................................................................... 36, 40 Shapiro v Town of Ramapo, 29 Misc. 3d 1220(A) (Sup. Ct. Rockland Cty. 2010) .................................................................................... 36 Matter of Shapiro v. Town of Ramapo, 98 A.D.3d 675 (2d Dept. 2012) lv. dismissed 20 N.Y.3d 994 (2013) ............................ 35, 36, 37 Sova v. Glasier, 192 A.D.2d 1069 (4th Dept. 1993) ......................................... 38 Stalis v. Sugar Creek Stores, Inc., 295 A.D.2d 939 (4th Dept. 2002) ......................................................................................................... 39 Stanton v. Town of Southold, 266 A.D.2d 277 (2d Dept. 1999) .................................................................................................................. 38 State v. CSRI Ltd. Partnership, 289 A.D.2d 394 (2d Dept. 2001), lv. denied, 97 N.Y.2d 749 (2002) .......................................................... 39 State of New York v. Schenectady Chems., 117 Misc. 2d 960 (Sup. Ct. Rensselaer Co. 1983), as modified, 103 A.D.2d 33 (3d Dept. 1984) .......................................................................... 38, 39 Stephenson v. County of Monroe, 43 A.D.2d 897 (4th Dept. 1974) ......................................................................................................... 33 Village of Croton-on-Hudson v. Westchester County, 38 A.D.2d 979 (2d Dept. 1972), aff’d, 30 N.Y.2d 959 (1972) ........................... 6, 28 Walsh’s Inc. v. County of Oswego, 9 A.D.2d 393 (4th Dept. 1959) ......................................................................................................... 40 Federal Cases 106 Mile Transport Associates v. Koch, 656 F. Supp. 1474 (S.D.N.Y. 1987) ........................................................................................ 27 vii Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .................................................. 27 Bice v. Robb, 324 Fed. Appx. 79 (2d Cir. 2009) .............................................. 42 Guilbert v. Gardner, 480 F.3d 140 (2d Cir. 2007) ............................................ 42 Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892) ........................................ 33 Natural Resources Defense Council v. United States Army Corps of Eng’rs, 399 F. Supp. 2d 386 (S.D.N.Y. 2005) .................................................................................................................. 45 Phillips Petroleum Co. v. Miss., 484 U.S. 469 (1988) .......................... 34, 36, 41 Rapf v. Suffolk County, 755 F.2d 282 (2d Cir. 1985) ........................................ 39 Save the Courthouse Comm. v. Lynn, 408 F. Supp. 1323 (S.D.N.Y. 1975) ................................................................................................. 45 Steubing v. Brinegar, 511 F.2d 489 (2d Cir. 1975) ........................................... 45 Toilet Goods Ass’n v. Gardner, 387 U.S. 158 (1967) ....................................... 27 Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) ................................................................................. 27 Cases from Other States Cal. Trout v. State Water Res. Control Bd., 207 Cal. App. 3d 585 (1989) ....................................................................................... 40-41 Institute for Wildlife Prot. v. U.S. Fish and Wildlife Serv., No. 07-CV-358-PK, 2007 U.S. Dist. LEXIS 85197 (D. Or. Nov. 16, 2007) ................................................................................................... 41 Nat’l Audubon Soc’y v. Superior Court, 33 Cal. 3d 419, 658 P.2d 709 (1983) .......................................................................................... 41 Student Pub. Int. Res. Group v. P.D. Oil & Chemical, 627 F. Supp. 1074, 1085 (D.N.J. 1986) ............................................................. 45 viii Neighbors & Friends of Viretta Park v. Miller, 87 Wn. App. 361 (Wash. Ct. App. 1997), review denied, 135 Wn.2d 1009 (1998) ....................................................................................... 41-42 Statutes N.Y. CPLR 217(1) ............................................................................................. 26 N.Y. CPLR 3211 ............................................................................................ 9, 47 N.Y. CPLR Rule 4540 ................................................................................... 7, 23 N.Y. Village Law § 7-724 .................................................................. 7, 11, 12, 29 Other Authorities 54 C.J.S. Limitation of Actions § 205 ................................................................ 38 David C. Slade, et al., Putting the Public Trust Doctrine to Work (1990) .................................................................................... 34 1 PRELIMINARY STATEMENT In the western corner of Kings Point Park, hiking trails weave through a mature woodland of oak, maple, butternut, beech and hickory trees. R 288, 471.1 Two of the trails lead into the forest from different directions, proceed under the dense tree canopy, pass by dazzling displays of wildflowers, and connect with the network of trails that traverses the 173-acre park. R 36-37, 83-91, 288-289, 445. Plaintiffs-Respondents Daniel Capruso, Alan Berkower and Elizabeth Allen, (“Plaintiffs”) are among many who regularly use that area (the “Western Corner of Kings Point Park” or the “Western Corner”) for walking, cross-country skiing, nature appreciation and general family enjoyment. R 46-48, 52, 57, 278-281. In November 2008, Defendants-Appellants Village of Kings Point, et al. (the “Village”) proposed to exclude the public from the Western Corner’s magnificent woodland, cut down the trees, eliminate the trails, grade and pave the forest floor, and build a diesel truck garage and headquarters for its department of public works (“DPW”) on that parkland. R 38-40, 290-292, 181. A few months later, the Plaintiffs filed suit to prevent the destruction and loss of park use. R 275. The Western Corner is mapped as parkland on the Official Map of the Incorporated Village of Kings Point (R 776, Exh. GG) and on every other 1 Numbers preceded by “R” refer to pages in the record on appeal. 2 contemporary or historical map in the record. See, e.g., R 83-84, 93, 99-109, 776- 778 (Exhs. HH-MM), 967-980. The Western Corner is also within the legal metes and bounds description of Kings Point Park. R 64-66, 285-287. The Western Corner’s status as dedicated municipal parkland was confirmed in this case by the New York State Office of the Attorney General (the “OAG”) (R 473), the New York State Office of Parks, Recreation, and Historic Preservation (“State Parks”) (R 430, 488-489), and a licensed land surveyor retained by the OAG. R 799-800. The New York State Legislature has not approved the use of any portion of the Western Corner for any non-park purpose. R 301-302, 471. The Supreme Court found that the land is dedicated municipal parkland, held that the suits were timely, and permanently enjoined both the future DPW project proposed in 2008 for the southern end of the Western Corner as well as non-park uses currently ongoing in the northern end of the Western Corner. R 4- 11, 14-17, 608-611. In two appeals, the Second Department affirmed in all respects, except that it found the Village’s conduct of the litigation not frivolous, thereby reversing the Supreme Court’s award of attorneys’ fees to the Plaintiffs. R 1112-1113, 1114-1116. The Village now appeals to this Court, making the plainly incorrect argument that all of the Plaintiffs’ and State’s claims have been time-barred since the middle of the last century. In support of its statute of limitations and laches 3 defenses, the Village completely ignores the recreational use of the Western Corner and much of the other record evidence, misleadingly refers to the entire Western Corner as the “DPW site,” conflates the Plaintiffs’ two causes of action, devotes only two paragraphs of argument at the back of its brief to the proposed future non-park use, and focuses almost exclusively on the continuing wrong doctrine, rather than the Public Trust Doctrine. For the reasons discussed below, this Court should affirm the orders of the Appellate Division, Second Department, which affirmed the orders of the Supreme Court, Nassau County, with costs. QUESTIONS PRESENTED 1. Was the Appellate Division correct in holding that Plaintiffs’ First Cause of Action was timely given that it was filed within four months of the Village’s proposal to convert the use of certain forested parkland from its current recreational park purpose to a non-park purpose without state legislative approval? This question should be answered in the affirmative. 2. Was the Appellate Division correct in holding that Plaintiffs Second Cause of Action was timely because ongoing use of parkland for non-park purposes without state legislative approval can be enjoined under the Public Trust Doctrine regardless of when it first began? This question should be answered in the affirmative. 4 SUMMARY OF ARGUMENT The Appellate Division properly determined that the First Cause of Action challenging the proposed future non-park use was not time-barred. In so doing, the Second Department did not rely upon the continuing wrong doctrine, nor did it need to do so. The southern portion of the Western Corner is an undeveloped woodland presently used for park purposes. On November 20, 2008, the Village held a meeting in which it announced a proposal to develop that forest and change its use to a non-park purpose. No statute of limitations could have commenced prior to the announcement (and certainly not before the Plaintiffs were born) because the Plaintiffswere not yet aggrieved, i.e., they did not suffer an actual, concrete injury, and thus had no reason to institute judicial proceedings. With respect to the portion of parkland used exclusively for recreation since at least the 1990s, both the harm to be prevented and the evidence of parkland dedication are present and prospective, not historical. The Appellate Division also properly determined that the Second Cause of Action was timely. Only a small portion of the Western Corner of Kings Point Park is, or ever was, used for non-park purposes. The existing non-park activities located there remain ultra vires because the Village has not obtained approval of the State Legislature. Under the Public Trust Doctrine, those unauthorized uses can be enjoined regardless of when they first began because it is a municipality’s 5 obligation to maintain park uses in perpetuity. It is not the public’s obligation to police all potentially illegal uses of parkland and to file suit within six years of when they first began or forever lose the right to do so. That is particularly true where the violation of the Public Trust Doctrine is the unauthorized use of parkland that municipality has the ability to control and abate, as opposed to, for example, the sale of parkland to a private developer. While consistent with the well-established continuing wrong doctrine, such result is compelled not only by that doctrine but also by the Public Trust Doctrine. Despite the Village’s repeated invocation of the phrase “open and notorious,” the law is clear that land impressed with a public trust cannot be adversely possessed. Finally, even if the Village could revive the laches defense it abandoned, and even if laches were a viable defense to a public trust claim, the Village cannot come close to establishing the elements of laches here given that: (i) the Plaintiffs have not unreasonably delayed; (ii) the Village specifically told the Plaintiffs that it would be “premature” to raise any concerns about the proposal prior to the November 2008 public meeting; and (iii) the Village has not been prejudiced as a result of any purported delay. STATEMENT OF THE CASE A. The Public Trust Doctrine The common law Public Trust Doctrine holds that dedicated park areas are 6 impressed with a public trust for the benefit of the people of the State of New York and cannot be alienated or used for non-park purposes without the specific and explicit approval of the State Legislature. Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 630-31 (2001). Three particular aspects of the doctrine bear emphasis here. First, land can become dedicated municipal parkland and thereby impressed with a public trust in two different ways: a parcel may become a park either [1] through express provision, such as restrictions in a deed or legislative enactment, or [2] by implied acts, such as a continued use of the parcel as a park or by certain acts of [the municipality]. Notably, whether the parcel has become a park under the latter method is a question of fact which is to be determined by all the evidence. Lazore v. Bd. of Trustees of Village of Massena, 191 A.D.2d 764, 594 N.Y.S.2d 400, 402 (3d Dept. 1993) (internal citations omitted); Village of Croton-on-Hudson v. County of Westchester, 38 A.D.2d 979, 980 (2d Dept. 1972), aff’d 30 N.Y.2d 959 (holding that “the long-continued use of the land for park purposes constitutes a dedication and acceptance by implication”); Kenny v. Board of Trustees of Village of Garden City, 289 A.D.2d 534, 534-35 (2d Dept. 2001) appeal den. 98 N.Y.2d 607 (2002) (holding that “property was impressed with a public trust” where “it is undisputed that the property was utilized for recreational purposes”); Riverview Partners, L.P. v. City of Peekskill, 273 A.D.2d 455, 455-456 (2d Dept. 2000) (finding property was a park based on “evidence demonstrating that the 7 subject property … was used by the public as a park ....”). That principal is relevant to both the merits and statute of limitations. It is relevant to the merits because recreational use - e.g., hiking, jogging, cross- country skiing, nature appreciation - of land on which the Village proposed to construct its DPW is undisputed. It is relevant to the statute of limitations because that long-continued recreational use has occurred not only historically but in the six years preceding the commencement of this action and continues today. Second, once land has been dedicated as parkland, either expressly or impliedly, that dedication is permanent and cannot be reversed by the municipality without specific approval from the State Legislature: “Once established, the dedication is irrevocable.” Riverview, 273 A.D.2d at 455. That principle is relevant here because the Official Map of the Incorporated Village of Kings Point currently maps, and has always mapped, the Western Corner as parkland. R 776 (Exh. GG).2 The entire case can be resolved on the basis of that one document because “[s]uch map is to be deemed to be final and conclusive with respect to … the location of parks shown thereon.” N.Y. Village Law § 7-724. 2 The Village stipulated that the copy of the Official Map in the record, which is Bates-numbered as KPP 534, is authentic and correct as if certified under CPLR Rule 4540. R 680. The Village did not, however, include the Official Map and other exhibits it referred to as “bulky” in the bound record it prepared and submitted with its opening brief. See, e.g., R 776. The Village later submitted them upon the request of the Court. Because the Village assigned the same page number in the bound record to multiple exhibits, we also identify them herein by their exhibit number in the trial court. 8 Third, state legislative approval is required for two different types of actions: (1) a municipality may not sell, lease, or otherwise transfer its ownership interest in or control of a park, for any purpose, even a park purpose, see, e.g., Miller v. City of New York, 15 N.Y.2d 34, 38 (1964); and (2) a municipality may not use parkland for an extended period for non-park purposes. Friends of Van Cortlandt Park, 95 N.Y.2d at 630-31. The former is always referred to as “alienation,” consistent with the meaning of that term in the real property context. The latter is sometimes also referred to as “alienation,” even though there has been no transfer of ownership. Terminology aside, the distinction is relevant here because while this case involves the use of parkland for a non-park purpose, the Village relies exclusively on parkland alienation cases involving the transfer of parkland to a third-party. Village Br. at 8-21. There are reasons why notions of finality and repose might apply differently in cases where a municipality has many years earlier divested itself of ownership of parkland, as opposed to where the parkland remains with the municipality, which uses it for non-park purposes. The Court need not address the former, as only the latter is presented in this case. B. Statement of Facts The Village’s incomplete and misleading recitation of facts cites almost exclusively to its own affidavit rather than to the pertinent documents. See Village Br. at 4-5 (citing affidavit of Mayor Kalnick, R 255-270). The counterstatement 9 provided herein appropriately cites to: (i) the complaints, which must be accepted as true on the Village’s CPLR 3211 motion to dismiss; (ii) the Plaintiffs’ and State’s affidavits, which may be considered to supplement the complaints; and (iii) the extensive documentary evidence in the record, the vast majority of which are official records maintained by the Clerk of the Village of Kings Point that the Village stipulated are authentic and correct. R 677, 679-680. 1. The Western Corner of Kings Point Park Kings Point Park (the “Park”) is a public park located in the Village of Kings Point on the border of the Village of Great Neck, immediately east of the United States Merchant Marine Academy. R 283-84, 67 (aerial photo). The Western Corner, near the intersection of Kings Point Road and Steamboat Road is an integral part of the Park. R 287, 68. Most of the Western Corner is thickly wooded, containing a number of 100- to 200-year-old massive specimen trees with trunk diameters of up to 62 inches. R 288, 490, 800-801. The Park was first dedicated in the 1920s. On June 21, 1927, the voters of the Village of Kings Point passed a ballot proposition for a $275,000 bond issue to acquire what was then known as the “Great Swamp” for use as a public park. R 285, 711, 715. At its next meeting, the Village Board of Trustees authorized the acquisition “for park purposes” of “all that tract of land known as the Great Swamp.” R 640, 309. Over the next three years, the Village proceeded to acquire 10 through purchase and eminent domain approximately 173 acres which now form the Park. R 285, 155. The Village contends that the Western Corner was acquired as part of a larger parcel from an individual named Eleanor V. McInerney. See Village Br. at 4 and R 257-258. Significantly, on at least three different occasions in 1927 the Village Board formally declared that the Eleanor V. McInerney property was purchased “for park purposes” or “as a Village park.” R 640, 318, 340, 721. In 1929, the Village approved the “Park Bonds of 1929” and simultaneously approved the use of park bond proceeds “to pay the cost of” its prior acquisition of the McInerney tract. R 641, 347-348. In November 1932, a survey of Kings Point Park dated June 1932 that had been prepared by the Village’s former Superintendent of Public Works, D.C. Will, was delivered by the Village’s counsel to the Village Clerk for filing in the Village records. R 738-739. The June 1932 survey plainly shows that the Western Corner is part of Kings Point Park. R 776 (Exh. HH), 636. In 1936, the Village Board resolved to lease the Park, including the Western Corner, to the Great Neck Park District “to manage and maintain the property as and for a park.” R 362. In 1938, the Village and Park District entered into a new lease for the entire Park, again including its Western Corner, for use as “a natural and scenic park.” R 365; see also R 160 (“lease was carefully drawn so as to 11 restrict the use of the leased premises for park purposes and no other”).3 Thus, by 1936, there were already at least four unimpeachable indicia of the formal parkland dedication of the Western Corner of Kings Point Park: the 1927 acquisition for park purposes; the 1929 appropriation of Park Bond funds; the 1932 Park survey; and the 1938 Park District lease. 2. Official Map Section 7-724 of the New York Village Law provides that if a village board of trustees establishes “an official map of the village showing the streets, highways and parks theretofore laid out, adopted and established by law,” then “[s]uch map is to be deemed to be final and conclusive with respect to … the location of parks shown thereon.” (emphasis added.) On March 24, 1946, the Board of Trustees of the Village of Kings Point established the “Official Map of the Incorporated Village of Kings Point” (the “Official Map”). R 776 (Exh. GG), 41, 293. 3 A provision in the 1938 lease states the following: “The lessor reserves the right to use the dumping area in said premises for dumping ashes, clean refuse and waste material from the Village of Kings Point.” R 368. Contrary to the Village’s contention, there is no evidence in the record - only sheer speculation by the mayor - that the “dumping area” referenced in the 1938 lease is within the Western Corner. See Village Br. at 4 (citing R 260). In fact, official Village records produced and certified by the Village only after the mayor made his assertion indicate that a dumping area in the Park (which may have been used for park purposes) was outside Western Corner, to the east, on land presently used as a ball field, near the intersection of Steamboat Road and Morris Lane. See KPP 543 & KPP 544, authenticated at R 680; see also Brief for Plaintiffs-Respondents in Action No. 1, in the first appeal, at 27 n.13 (alerting the Appellate Division to the existence of these records). These exhibits will be submitted upon request. In any event, the State Legislature has never authorized a dump for non-park purposes anywhere in Kings Point Park. 12 Consistent with the Park survey completed by D.C. Will fourteen years earlier, the Official Map plainly shows the Western Corner as an integral part of Kings Point Park, which is labeled as “Village Park Lands.” Id. That was the fifth unimpeachable indicium of the parkland dedication. The Village Law sets forth a procedure for changing an Official Map. See N.Y. Village Law, § 7-724. The Official Map shows that the Village has made many amendments through the years, including several during the tenure of the current mayor, but has never changed the Official Map with respect to Kings Point Park or the Western Corner.4 R 776 (Exh. GG). The Village admits that the Official Map depicts the Western Corner within the Park. See Village Br. at 4 and R 260. Although the Village argues that the map is “erroneous[],” id., there is no factual or legal basis for that assertion given that the Official Map’s depiction of the Western Corner as parkland is consistent with the 1927 acquisition, 1929 park bonding, 1932 survey and 1938 lease for park purposes. 3. 1946-1958 Park District Leases In July 1946 the Village and the Park District executed an addendum to the 4 Even if the Village had changed the Official Map to exclude the Western Corner from the Park, such change would not be sufficient to remove the dedication because the Village “ha[s] not been authorized by the State Legislature … to demap the parcel as parkland.” Ackerman v. Steisel, 104 A.D.2d 940, 940 (2d Dept. 1984), aff’d, 66 N.Y.2d 833 (1985), 13 1938 lease, which excluded the Western Corner from the leased lands. R 377-380. The addendum does not state why the land was excluded from the lease. Id. Minutes of a Village Board meeting several weeks prior stated that the Village sought to “reserve a strip of land approximately 400x600 at the southwest corner of the Kings Point Park fronting on Kings Point Road for a pistol range and storage of highway materials and supplies.” R 374 (emphasis added). Under the Public Trust Doctrine, the exclusion of dedicated municipal parkland from a lease to a park district does not, however, change the character of that land or allow the municipality to use that land for non-park purposes in the absence of state legislative approval. See R 429 (State Parks opinion); 492 (State Parks affidavit). Accordingly, the Village remained legally obligated to use the land it withdrew from the lease for park purposes and no other. The Village’s statement that the 1946 addendum “correct[ed]” the “error” in the Official Map (see Village Br. at 4-5) is nonsensical. First, as discussed above, there was no error. Second, the lease addendum did not purport to change the Official Map in any way. The Village’s further statement that the Western Corner has been used continuously for non-park purposes since 1946 is both inaccurate and overbroad. To begin with, the “pistol range” that Village sought to reserve a portion of the Western Corner for in 1946 has long since been abandoned. R 801 (“area was 14 once used as a pistol range” is now “covered with vegetation including medium and small trees and shrubs”). More important, only a small portion of the northern end of the Western Corner has ever been used for non-park purposes. See, e.g., R 432-434, 442-444 (annotated aerial photos), 462-465, 802 (“Southern half of the ‘Western Corner’ is a mature woodland that has not been disturbed.”).5 When the lease to the Park District was renewed in 1948 and 1958, the Village continued to exclude the Western Corner from the area leased to the Park District, but those agreements also continued to provide that the excluded area (i.e., the Western Corner) is part of “the premises known as the Kings Point Village Park.” R 110, 383, 638. Those leases, executed ten years apart, provide the sixth and seventh documentary indicia of the parkland dedication of the Western Corner. 4. 1967 Session Law In March 1966, the New York State Comptroller notified the Village that the leases of the Park to the Park District were unlawful because the State Legislature had not approved them. R 149-150. That is, the Village had violated the branch of the Public Trust Doctrine that requires state legislative authority before parkland can be sold or leased for any purpose, even a park purpose. See Miller, 15 N.Y.2d 34, and discussion supra at p. 8. 5 The photographic exhibit at R 465 is one of the “bulky” exhibits that the Village submitted upon the Court’s request. 15 In response, the Village and its attorney drafted a proposed bill which, after extensive lobbying by the Village (R 151-170), passed the State Legislature and was signed into law as Chapter 563 of the 1967 Laws of New York (the “1967 Session Law”). R 64-66, 295-297. Of particular note, Section 3 of the 1967 Session Law includes a legal metes and bounds description of the Park, identical to that reflected on the 1932 Park survey completed by D.C. Will, which explicitly refers to that 1932 survey and includes the Western Corner within the boundaries of the Park. Id., see also R 798-799 (licensed land surveyor determined that “the Western Corner … is completely contained within the metes and bounds description of Kings Point Park as established by section 3 of Chapter 563 of the Laws of New York and is completely contained within the 1932 survey map prepared by D.C. Will”). The Session Law is the eighth unimpeachable piece of documentary evidence of the parkland dedication. It is also highly significant that the only time the State Legislature has acted with regard to this Park, it explicitly included the Western Corner in the legal description of the Park and authorized a lease of those lands for park purposes only. The Village cites not to the 1967 Session Law itself, but rather to an early draft of the bill that does not contain the metes and bounds description and to a Western Union telegram announcing that the law passed the Senate. See Village Br. at 5 (citing R 158-159, 165). Furthermore, the Village’s statement that the law 16 “validated, ratified and confirmed the 1958 lease,” id., undermines its own argument because the 1958 lease does not refer to any non-park use but rather acknowledges that “the premises known as the Kings Point Village Park” include the Western Corner. R 383. Through the years, a variety of maps prepared by governmental and private entities for various purposes have all shown the Western Corner to be a part of Kings Point Park. See, e.g., R 83-84, 93, 99-109, 776-778 (Exhs. HH-MM), 967- 980. This brings the number of documents in the record establishing the parkland status of the Western Corner into double digits. 5. Recreational Use Leading through the Western Corner’s forest are trails that are used, and have been used since at least the 1990s, for park purposes such as running, hiking, cross-country skiing, and ingress to and egress from the rest of the Park by the Plaintiffs, their families and others, including Midshipmen from the adjacent U.S. Merchant Marine Academy. R 36-37, 83-91, 288-289, 445. Two of the Western Corner’s trails are marked by trail markers and appear on the Park maps distributed by Park District personnel stationed in the Park. R 36-37, 636, 88-90, 776 (Exh. II), 777. Another trail, this one not formally marked or mapped, is clearly visible on the terrain from frequent use. R 91; see also R 490, 800-801. The longstanding and continuing recreational use of the Western Corner is 17 highly relevant because even assuming arguendo that the land was not previously dedicated as parkland, or if the dedication had somehow been reversed, the parkland would have been re-dedicated by that recreational use. R 430 (opinion of State Parks that “the portion of the parcel that has been used for recreation has become dedicated parkland by implication”). In other words, the events that the Village argues triggered a statute of limitations in the 1930s or 1940s have been superseded by the recreational use of the Western Corner since then, including in the 1990s, 2000s and 2010s. Tellingly, the Village’s brief completely omits any reference to the Western Corner’s woodlands, trails and recreational use, even though they were a central feature in every motion and every appeal below. 6. Existing Non-Park Use In a lightly graded clearing in the northern end of the Western Corner is a “Quonset hut” used by the Village for storing road salt and a smaller utility building. R 68. In addition, the Village has dumped soil, tree trunks, leaves, and construction debris near the salt shed. R 289, 490. The nature of these activities has changed through the years. R 262. The Village’s present and historical non- park uses consume a small portion of the Western Corner (R 442) are also far less expansive, intensive, damaging and permanent than the proposed project. R 442- 444. 18 7. Proposed Non-Park Use At a November 20, 2008, meeting of its Board of Trustees, the Village announced a proposal (the “Proposed DPW Project”) to construct a new building (the “Proposed DPW Building”) in the Western Corner. R 290-292, 38-40. Presently, the Village’s main public works building is located outside of Kings Point Park on Steppingstone Lane. Id.; see also R 751-752. The Village’s publicly stated motivation for moving its DPW into the Park is to sell the site of its current DPW headquarters for private development. R 300, 45. The Village plans to offset virtually all of the $4 million cost of the Proposed DPW Project by selling the Steppingstone Lane site, as well as the adjacent, now-empty land where its Village Hall previously stood. R 299-300, 45-46, 69-70. Instead of rebuilding its DPW building there (where it has is plenty of land to do so, R 752), the Village plans to “liquidate” parkland by selling the current DPW site and moving its DPW operations into the Park. R 46. The Proposed DPW Building in the Western Corner would include, among other things, a garage for a dozen diesel trucks, a road sign shop, administrative offices, and crew quarters. R 290-291, 38-39. The 12,000 square-foot building would be approximately 157 feet long, 80 feet wide, and 34 feet high, with white metal sides and a gleaming metal roof painted the color of raw copper, which would be highly conspicuous in the forested environment of Kings Point Park. R 19 291, 38-39, 76-77. The project also includes construction of parking areas for employees and visitors, a new asphalt roadway with curbs and a gutter leading to and from Kings Point Road, leeching pools for storm drainage, walkways, and lighting. R 291, 39. The new building would be surrounded by a six-foot-high black chain link fence with a single twenty-six-foot wide gate. R 291, 39, 182. The new facility would consume a significant portion of the Western Corner and eliminate the existing hiking and cross-country skiing trails that appear on Park maps. R 291-92, 39-40, 444. To implement the project, the Village would undertake extensive deforestation, earth-moving, and paving of what are now woodlands containing these well-used trails. A group of old-growth specimen trees would be cut down and, because the land has a very uneven grade, the forest floor would undergo significant excavation and grading. R 292, 40. The project would thus transform a magnificent, undeveloped and unspoiled natural area of the Park into a paved, developed, municipal infrastructure facility. Id. When the Plaintiffs first learned that the Village might be considering developing the southern portion of the Western Corner, they spoke on numerous occasions with the Village clerk and tried unsuccessfully to obtain a meeting with the mayor, only to be told repeatedly that the Village was merely “considering” using the land for a DPW facility, no final decision had been made, no formal plan could yet be provided, that any concerns should be saved for the public meeting, 20 and that any discussion of the proposal would be “premature” until then. R 434- 437. The mayor and Village clerk admitted these facts at their depositions in this case. R 699-704, 691-693. The mayor further testified that the Village did not make a final decision to proceed with the Proposed DPW Project prior to the November 20, 2008, meeting, did not make a final decision to proceed at that meeting, and still had not made a final decision to proceed when the preliminary injunction was issued. R 693-694. C. Proceedings Below Plaintiffs6 initiated this action on March 18, 2009, by filing a summons and verified complaint for declaratory and injunctive relief under the Public Trust Doctrine. R 274-305. The First Cause of Action sought to enjoin the Proposed DPW Project, and the Second Cause of Action sought to enjoin the existing non- park uses. R 301-303. Plaintiffs moved for a preliminary injunction only with respect to the proposed project. R 20-24. The Village cross-moved to dismiss the entire complaint as time-barred. R 253-254. On May 26, 2009, State Parks issued an opinion, which concluded that: (i) the Western Corner is dedicated parkland; (ii) use of that land for DPW facilities is a violation of the Public Trust Doctrine absent legislative authority; and (iii) even 6 One of the original plaintiffs, Professor Julian Kane, died in June 2010. 21 if there had been no formal dedication, the portion of the Western Corner that has been used for recreation has become dedicated parkland by implication.7 R 427- 430. On June 1, 2009, the Supreme Court issued a temporary restraining order preserving the status quo, but conditioned the TRO on the posting of an undertaking in the amount of $1,000,000, which the Plaintiffs could not afford, so the TRO lapsed.8 On July 29, 2009, the Supreme Court denied the Village’s cross-motion and provisionally enjoined the Proposed DPW Project, on the condition that the Plaintiffs post a $400,000 undertaking. R 5-11. The Plaintiffs could not afford to post an undertaking in that amount either and the preliminary injunction also lapsed. R 16. However, the project was enjoined again in a TRO, dated September 2, 2009, and a preliminary injunction, dated November 18, 2009, in the related action brought by the State of New York. R 478, 15-17, 466-476. The Supreme Court denied the Village’s motion to dismiss the State’s complaint on the same grounds as in the first action. R 15-17. In a consolidated appeal of the orders in both cases, the Appellate Division 7 The State Parks attorney who rendered the opinion also stated: “I do not believe that such an action [under the Public Trust Doctrine] is subject to a statute of limitations.” R 430. 8 See http://decisions.courts.state.ny.us/10JD/Nassau/decisions/INDEX/INDEX_new/ FEINMAN/2009JUL/005006-09.pdf. 22 affirmed in all respects except as to Plaintiffs’ lapsed preliminary injunction, which branch of the appeal it dismissed as academic. 78 A.D.3d 877 (2d Dept. 2010); R 1114-1116. With respect to the proposed future non-park use, the Second Department held: [I]nsofar as the plaintiffs’ first cause of action and the State’s first and second causes of action seek declaratory and injunctive relief based on the public trust doctrine to prevent the Village’s proposed use of the alleged parkland for certain nonpark purposes without State Legislative approval pursuant to a plan first publicly announced by the Village in November 2008, those causes of action … are not time- barred. 78 A.D.3d at 879; R 1116 (emphasis added) (citation omitted). With respect to existing non-park use, the Second Department held: A municipality’s current and ongoing use of dedicated parkland for nonpark purposes without the approval of the State Legislature in violation of the public trust doctrine is a continuing wrong that the municipality has the ability to control and abate. Thus, here, although the Village purportedly has been using the alleged parkland for nonpark purposes without the approval of the State Legislature since, at the latest, around July 1946, insofar as the plaintiffs’ second cause of action seeks declaratory and injunctive relief predicated on allegations of the Village’s current and ongoing use of the alleged parkland for certain nonpark purposes without the approval of the State Legislature in violation of the public trust doctrine, the plaintiffs' second cause of action is not time-barred 78 A.D.3d at 878-79; R 1115-1116 (emphasis added) (citations omitted). Following discovery, Plaintiffs and the State moved for summary judgment, submitting 83 exhibits between them (R 612-779, 780-1098), the vast majority of them copies of official records maintained by the Clerk of the Village of Kings 23 Point, which the Village had stipulated were authentic and correct as if certified pursuant to CPLR Rule 4540. R 677, 679-680. The State also submitted an affidavit of a licensed professional land surveyor. R 796-802. In response, the Village submitted only a five-page affirmation of counsel without any affidavits, evidence, or a memorandum of law. R 1099-1103. That “partial opposition” did not oppose the entry of summary judgment, and merely objected to the award of attorneys’ fees and the scope of the requested permanent injunction. Id. On June 7, 2011, the Supreme Court granted the summary judgment motions in their entirely, finding the Western Corner to be dedicated municipal parkland and enjoining both the proposed and existing non-park uses as violations of the Public Trust Doctrine for failure to obtain authorization from the New York State Legislature. R 608-611. The Court also awarded Plaintiffs their reasonable attorneys’ fees. R 610. On appeal, the Appellate Division modified the order by striking the award of attorneys’ fees and otherwise affirmed. 102 A.D.3d 902, 903 (2d Dept. 2012); R 1112-1113. In its opening brief in this Court, the Village argued only timeliness, thus conceding the issue of the scope of the injunction. 24 ARGUMENT POINT I THE FIRST CAUSE OF ACTION IS UNQUESTIONABLY TIMELY BECAUSE IT SOUGHT AND OBTAINED RELIEF TO PREVENT PROPOSED FUTURE NON-PARK USE OF PARKLAND PRESENTLY USED FOR RECREATION The First Cause of Action is timely as it sought declaratory and injunctive relief to prevent proposed future non-park use of parkland that the Plaintiffs use for park purposes. R 301-302. That claim was filed within a few months of the first public announcement of the Village’s proposal to convert the use from its present recreational purposes as a forest containing hiking trails to a DPW headquarters and diesel truck garage. See Statement of Facts, § B.7, supra at pp. 18-20. Simply put, there is no merit whatsoever to the Village’s argument that the statute of limitations for a claim to prevent the 2008 Proposed DPW Project began running as early as 1938, before any of the Plaintiffs were born. The Appellate Division did not rely on the continuing wrong doctrine in finding the First Cause of Action to be timely, nor did it need to, because that claim concerned a proposed future non-park use pursuant to a plan first publicly announced in 2008. R 1116. Perhaps not surprisingly given the frailty of its argument, the Village does not get around to arguing the timeliness of Plaintiffs’ First Cause of Action until page 15 of its 20-page opening brief, and then devotes only two paragraphs to it. 25 See Village Br. at 15-16. The Village’s entire argument in that regard is prefaced on the plainly incorrect assertion, contrary to the record, that “what the Village announced in November 2008 was nothing more than a change in the nature and scope of an ongoing non-park use of the same park land.” Id. at 16. As is self-evident from the discussion above and the evidence cited, the Proposed DPW Project is not a proposed reconfiguration of the limited existing DPW facilities presently located in the Western Corner. Instead, it would be a massive expansion of non-park use - in type, intensity, and geographical extent - and would relocate the DPW facilities presently located outside the Park onto parkland never before used for non-park purposes. See, e.g., R 442-444, 800-802. Tellingly, the Village does not cite a single case in support of its two- paragraph argument that the proposed future non-park use was time-barred. See Village Br. 15-16. The only decisional authority mentioned in that section of its brief is Jones v. Amicone, 27 A.D.3d 465 (2d Dept. 2006), a case that the Village previously told the Supreme Court and the Appellate Division was “controlling Appellate Division authority,”9 and now seeks to distinguish. To the extent Jones is relevant at all, it supports Plaintiffs. In Jones, the City of Yonkers proposed to transfer city-owned property, a 9 See Brief for Defendants-Appellants in Action No. 1 and Defendant-Appellant in Action No. 2, dated March 9, 2010, Case Nos. 2009-08854 and 2009-11678, at 3. 26 portion of which was alleged to be parkland, to an industrial development agency to build a minor league baseball park and an upscale retail district. 27 A.D.3d at 467. Seven months after the City made a final determination to transfer the property, local residents and businesses filed a hybrid action and special proceeding under the State Environmental Quality Review Act (SEQRA) and the Public Trust Doctrine. Id. at 467-68. The Second Department held that while the SEQRA claim was barred by CPLR 217(1)’s four-month statute of limitations, the claim founded upon the Public Trust Doctrine was distinct from the SEQRA claim, not subject to that limitations period, and therefore timely. Id. at 469-70. Here, the Plaintiffs filed suit within four months of the Village’s first public announcement of the proposal to replace the Western Corner’s woodlands and trails with a DPW facility, and thus even a SEQRA claim would have been timely.10 As the Second Department did in Jones (see 27 A.D.3d at 468), this Court has frequently recognized, in both Article 78 proceedings and declaratory judgment actions, that a statute of limitations does not commence - indeed, the claim may not even be ripe - in the absence of an “actual, concrete injury” inflicted upon the complainant, meaning that the plaintiff must be aggrieved, must 10 Moreover, as discussed below, because Jones was parkland transfer case (rather than a parkland use case), the argument for rejecting a statute of limitations defense is even stronger here than in Jones. Notably, the Village has still not made a final decision to proceed with the Proposed DPW Project. R 693-694. 27 know that she is aggrieved, and must be able to assess the consequences of the action to be challenged, thereby giving her reason to institute a judicial proceeding. Additionally, the court must find that the injury could not be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party. See, e.g., Matter of Essex County v Zagata, 91 N.Y.2d 447, 453 (1998); Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 520 (1986) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149-52 (1967); Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 162-63 (1967); Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 193 (1985)); Martin v. Ronan, 44 N.Y.2d 374, 380-81 (1978) reh’g denied, 45 N.Y.2d 776; Sorrentino v. Mierzwa, 25 N.Y.2d 59, 61-63 (1969); see also 106 Mile Transport Associates v. Koch, 656 F. Supp. 1474, 1485 (S.D.N.Y. 1987) (Walker, J.) (applying New York law); Dreves v. New York Power Authority, 131 A.D.2d 182, 187 (3d Dept. 1987). Here, the Plaintiffs’ injury - i.e., the inability to continue using for recreational purposes the woodlands that the Proposed DPW Project will destroy, as well as the loss of the other aesthetic benefits afforded by that forest, its trees, wildflowers, and wildlife - will be occasioned by the construction and operation of the Proposed DPW Building. From the time that they first moved to the area, the Plaintiffs have known that land to be a park - indeed, it is a park - and have used it 28 for recreational purposes, which they still do so today. Significantly, in 2005, even the Village’s law firm (Ackerman, Levine, Cullen, Brickman & Limmer, LLP), which also represents the Park District, referred to the southern of the Western Corner as “Kings Point Park” in a letter the firm wrote to Plaintiff Alan Berkower in 2005. R 54-55, 183-184. Accordingly, until the Village announced that it planned to deforest the land, eliminate the trails, exclude the public, put up a fence, and develop the southern portion of the Western Corner for use as a garage and DPW headquarters, the Plaintiffs were not harmed, they had no reason to file suit, and no statute of limitations could have commenced. The Village’s argument that statutes of limitation are necessary because “evidence of what may or may not have occurred long ago may no longer be available to a party” (see Village Br. at 8) has no relevance here because the Court need look no further than the current recreational use11 or the current Official Map to determine that the subject property is parkland. That is, of course, the very purpose of an Official Map - to have one “final and conclusive” record of the 11 As noted, the Plaintiffs’ recreational use of the Western Corner, which started in 1990s at the latest, continued through the six-year period prior to the commencement of this action and continues today, giving rise to a dedication by implication (or a re-dedication by implication) regardless of what might have happened in prior years. R 430; see also Village of Croton-on- Hudson, 38 A.D.2d at 980; Kenny, 289 A.D.2d at 534-535, Riverview Partners, 273 A.D.2d at 455. 29 boundaries of a park. Village Law § 7-724; Lazore, 594 N.Y.S.2d at 402 (citing Village Law § 7-724) (“evidence of adoption of a zoning map listing the parcel as a park would finally decide the issue in petitioner’s favor”). Thus, there was no need for the Supreme Court or Appellate Division to “plumb the misty depths of time.” Village Br. at 13. The fact that the Village withdrew the Western Corner from the Park District lease has no bearing on when a cause of action to challenge to the Proposed DPW Project would accrue. It was not illegal for the Village to withdraw land from the lease with the Park District, such act was not an alienation, and such withdrawal did not diminish in any way the Village’s duty under the Public Trust Doctrine to maintain park uses of the withdrawn land. R 492. Only the State Legislature can remove that obligation. Nor did the minutes of any historic Village board meeting aggrieve the Plaintiffs. Contrary to the Village’s argument, presented without any citation (see Village Br. at 11), there are no minutes of any 1938 Village Board meeting in the record. And even if a local resident had the time, inclination and ability to pore through thousands of pages of mostly typewritten minutes from hundreds of Board meetings and was able to locate the 1946 minutes to which the Village presumably refers (R 372-376), those minutes give no indication that the Village might in 2008 propose to clear-cut the forest and eliminate all recreational uses of the Western 30 Corner. R 374. It is the Village of Kings Point that failed to act upon information readily available to it, given that the Village, which has sophisticated legal counsel, was aware that its own Official Map shows the Western Corner to be parkland, aware of the recreational use, and aware of the Public Trust Doctrine, having previously been notified by State Controller in 1966 that the lease to the Park District was illegal in the absence of State Legislative approval. R 149-150. The Village’s argument - that anyone who might be harmed by Village’s 2008 decision to exclude the public from public trust lands was required to file suit by the 1940s or forever lose its right to do so - enjoys no support in the law or the facts, violates every notion of fairness, equity and justice, and does not warrant serious consideration by this Court. POINT II THE VILLAGE’S ONGOING USE OF THE WESTERN CORNER FOR NON-PARK PURPOSES CAN BE ENJOINED UNDER THE PUBLIC TRUST DOCTRINE SO LONG AS IT REMAINS UNAUTHORIZED The Second Cause of Action sought declaratory and injunctive relief halting the Village’s existing non-park activities in the Western Corner, such as the storage of road salt and dumping of debris, absent approval of the State Legislature. That claim is also timely because ongoing uses of parkland for non-park purposes may be enjoined regardless of when they may have first commenced, so long as they 31 lack state legislative authorization. That principle flows from the Public Trust Doctrine itself, not the continuing wrong doctrine, though it is also consistent with the latter doctrine. In Ackerman v. Steisel, 104 A.D.2d 940 (2d Dept. 1984), aff’d, 66 N.Y.2d 833 (1985), the First Department ordered New York City to remove two adjacent public works facilities from Cunningham Park in Queens even though those facilities had been located on that parkland for more than 25 and 14 years, respectively. 104 A.D.2d at 941. The City’s transportation and sanitation departments, with the acquiescence of its parks department, had been storing approximately 100 vehicles at the facilities since 1959 and had erected certain structures. Id. at 940-41. Even though the first action to enjoin that non-park use was not filed until 1978 - nearly twenty years after the use first began - and two more actions were filed even later, the only timing issue that concerned the Appellate Division was not whether the suits were dilatory, but rather whether they had been filed too early in light of the City’s contention that the use was temporary. Id. at 941. The court held as follows: The Department of Highways has used a portion of the park for its “Hollis Yard” facility for a period of over 25 years. The Department of Sanitation has used an adjacent portion of its “Garage 11A” facility since 1970. Respondents have not been authorized by the State Legislature either to demap the parcel as parkland, or to use it for other than park purposes. * * * 32 A period of over 25 years and 14 years, respectively, can hardly be characterized as “temporary”, nor are such “temporary” encroachments upon parkland exempt from the public trust doctrine. * * * Accordingly, we … direct the removal from Cunningham Park of all trucks, equipment and other materials and physical improvements, including fences and buildings, under the control of the New York City Departments of Sanitation and Transportation within 90 days ... Id. at 940-42. This Court then affirmed “for the reasons stated in the memorandum at the Appellate Division.” 66 N.Y.2d 833, 835 (1985). The Village argues that Ackerman is distinguishable because there, and in similar cases, the unauthorized use “may start out undetectably small and immaterial, be accretive and thus not be readily apparent until they exceed a certain threshold size or intensity.” See Village Br. at 14. But that is also what happened in Kings Point Park, where the Village started out with a pistol range (which it later abandoned) and the storage of highway materials and supplies, and then expanded the size and intensity of the activities in the northern end of the Western Corner - making additions in the late 1950s or early 1960s, 1970s, 1980s (when the salt shed was constructed), and 1990s (when fuel tanks were installed, though these were later removed), see R 262, 180 - before proposing a new project in 2008 that would consume most of the 5.455 acres. In Ackerman, the Appellate Division observed that “changed circumstances” in Cunningham Park had included the erection of a “tent” to accommodate sanitation workers during the winter 33 months. 104 A.D.2d at 941. The far greater changed circumstances presented in this case, as well as the massive changes proposed in 2008, provide an occasion to examine the propriety of all unauthorized activities presently in the Western Corner, despite that some non-park use may have been there for a long time. In addition to Ackerman, in 81 years spanning from the seminal case of Williams v. Gallatin, 229 N.Y. 248 (1920) to Friends of Van Cortlandt Park in 2001, and in the dozen years since then, many courts have enjoined the use of parkland for non-park purposes for failure to obtain legislative approval.12 Throughout that history, Plaintiffs are not aware of any case at any level, anywhere in the state, in which a court held that a Public Trust Doctrine claim challenging the unauthorized use of dedicated municipal parkland was subject to a statute of limitations. Nor has the Village cited any. There are important jurisprudential reasons for strictly enforcing the public trust regardless of when a violation first began. New York’s Public Trust Doctrine, first articulated in the parkland context in Brooklyn Park Commrs. v. Armstrong, 45 N.Y. 234 (1871), preceded by two decades the U.S. Supreme Court’s decision in Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892), and has roots in both 12 See, e.g., In re Central Parkway, Schenectady, 140 Misc. 727 (Sup. Ct. Schenectady Cty. 1931); Stephenson v. County of Monroe, 43 A.D.2d 897 (4th Dept. 1974); Chatham Green, Inc. v. Bloomberg, 1 Misc. 3d 434 (Sup. Ct. New York Cty. 2003); Gowanus Indus. Park, Inc. v. City of New York, 15 A.D.3d 311 (1st Dept. 2005), lv. denied, 5 N.Y.3d 708 (2005). 34 English common law and ancient Roman law.13 While Brooklyn Park Commrs. involved a sale of parkland, this Court first explained the prohibition against non- park uses in Williams v. Gallatin: A park is a pleasure ground set apart for recreation of the public, to promote its health and enjoyment … [N]o objects … which have no connection with park purposes … should be permitted to encroach upon it without legislative authority plainly conferred, … The legislative will is that [parkland] should be kept open as a public park ought to be and not be turned over by the commissioner of parks to other uses. It must be kept free from intrusion of every kind which would interfere in any degree with its complete use for this end. 229 N.Y. at 253-54. Here, at the very moment the Village of Kings Point first acquired the Western Corner from Mrs. McInerney in 1927 “for park purposes” and “as a Village park” (R 318, 340, 721), that property became dedicated to that specified purpose and a public trust was instantly impressed upon the property, requiring that the Village use it for a public park and no other purpose. See Gallatin, 229 N.Y. at 253-54; see also R 149-150. The public trust established for Kings Point Park more than 86 years ago has never been removed from the 5.455-acre Western Corner, and can never be so removed, unless and until the New York State 13 See Friends of Van Cortlandt Park, 95 N.Y.2d at 630, n.3; Phillips Petroleum Co. v. Miss., 484 U.S. 469, 486 (1988); see also David C. Slade, et al., Putting the Public Trust Doctrine to Work, at 3-4 (1990). 35 Legislature explicitly removes it. If the Village could unilaterally extinguish the public trust by taking action in violation of its trust obligations and then marking the passage of six years’ time, such a result would undermine the most fundamental principles of the Public Trust Doctrine - first, that “where a municipality holds title to land for public use ‘the power to regulate those uses [is] vested solely in the legislature,’” Friends of Van Cortlandt Park, 95 N.Y.2d at 632 (emphasis added; quoting Potter v Collis, 156 N.Y. 16, 30 (1898)), and, second, that “[o]nce established, the dedication is irrevocable.” Riverview, 273 A.D.2d at 455. The Village’s reliance on the Second Department’s decision in Matter of Shapiro v. Town of Ramapo, 98 A.D.3d 675 (2d Dept. 2012) lv. dismissed 20 N.Y.3d 994 (2013), is misplaced because Shapiro was a parkland sale case, not a parkland use case. In Shapiro, a town sold the alleged parkland to a developer in 2001, nine years before the suit was commenced, and thus the land was no longer owned or controlled by the town. Id. at 676. In 2010, an Article 78 petition was filed alleging SEQRA violations in connection with a rezoning applied for by the developer for what was, by then, private property. Id. The Supreme Court found that the petitioners lacked standing to bring the proceeding and had failed to exhaust their administrative remedies, and that there was no merit to their SEQRA 36 claims. Shapiro v Town of Ramapo, 29 Misc. 3d 1220(A) at *3-9 (Sup. Ct. Rockland Cty. 2010). The court also found that the petition was not “saved” by petitioners’ claim that the land is parkland because there was no evidence of any formal or implied dedication. Id. at *9-11 In two sentences at the end of the opinion, the Supreme Court found that a hypothetically meritorious cause of action under the Public Trust Doctrine “would have accrued six years after the sale in 2001.”14 Id. at *11. On appeal, the Second Department reinstated the SEQRA claims, but affirmed the dismissal of the Public Trust Doctrine claim on the basis that it should have been filed within six years of the sale of the property. 98 A.D.3d at 677. Even if Shapiro were correctly decided,15 the holding of that case has no application here given that the Village of Kings Point has not sold the Western Corner or resolved to do so. Any concerns that might arise in the context of a suit initiated long after property has passed out of municipal ownership do not arise in 14 Presumably, the court meant to say that the cause of action would have accrued upon the sale in 2001. 15 While this Court need not decide the issue in this appeal, Shapiro is arguably incorrect because, if the property had been dedicated, the title that passed to the developer in 2001 would have been encumbered by an irrevocable public trust. See Rodrigues v. Catskill Revitalization Corp., 302 A.D.2d 762, 764 (3d Dept. 2003) (public benefit corporation that received title to land subject to a public trust could not convey title unencumbered by that restriction); see also Phillips Petroleum Co. v. Miss., 484 U.S. 469, 481-83 (1988) (fact that private landowners held record title and paid taxes on lands “for more than a century” was no bar to a state asserting its public trust rights). 37 a parkland use case such as this one. That is why the Second Department in the first appeal below made a point to note that “[a] municipality’s current and ongoing use of dedicated parkland … is a continuing wrong that the municipality has the ability to control and abate.” R 1115 (emphasis added). Conversely, in Shapiro, the sale of the alleged parkland was a discrete, one-time violation that the town did not have the ability to undo after the transaction closed. The Village’s further argument that Shapiro illustrates the distinction between violations of the public trust doctrine and their consequences (Village Br. at 11-12) fails for similar reasons. A sale of parkland is the alienation (whether reflected in the decision to sell, the contract or the closing documents), whereas the same cannot be said about a decision to use parkland for a non-park purpose. In the latter context, the use itself is the violation, not merely a consequence of a prior illegal decision, especially where the uses have expanded in size and intensity since the original decision. Naturally, the Second Department’s decision in Ackerman and the first appeal below are consistent with the well-established continuing wrong doctrine. The common law rule with respect to an ongoing nuisance or trespass is that a cause of action accrues for each injury, the wrong being not referable exclusively to the day when it first began, and thus plaintiffs are never precluded from seeking injunctive relief, even where a damage remedy might be time-barred. See, e.g., 38 Bloomingdales, Inc. v. New York City Transit Auth., 13 N.Y.3d 61, 66 (2009); Jensen v. General Elec. Co., 82 N.Y.2d 77, 90-91 (1993); 509 Sixth Ave. Corp. v. New York City Transit Authority, 15 N.Y.2d 48, 52 (1964); Stanton v. Town of Southold, 266 A.D.2d 277, 279 (2d Dept. 1999); Kearney v. Atlantic Cement Co., 33 A.D.2d 848, 849 (3d Dept. 1969); Sova v. Glasier, 192 A.D.2d 1069, 1070 (4th Dept. 1993); State of New York v. Schenectady Chems., 117 Misc. 2d 960, 967 (Sup. Ct. Rensselaer Co. 1983), as modified, 103 A.D.2d 33 (3d Dept. 1984); 54 C.J.S. Limitation of Actions § 205 (“The statute of limitations does not run against a public nuisance, no matter how long it is continued.”). The Public Trust Doctrine claims presented in this case are akin to public nuisance claims because conduct that interferes with the public’s use of a public place constitutes a public nuisance. See, e.g., Copart Indus., v. Consolidated Edison Co. of New York, 41 N.Y.2d 564, 567-68 (1977); Adirondack League Club v. Sierra Club, 201 A.D.2d 225, 233 (3d Dept. 1994), aff’d in part and mod. on other grounds, 92 N.Y.2d 591 (1998). Moreover, the continuous wrong doctrine has been applied to a variety of other claims for declaratory and/or injunctive relief, including cases seeking to 39 compel a municipality to operate within its statutory limitations,16 to invalidate land use restrictions,17 to close an unauthorized solid waste facility,18 or to compel code compliance required by a contract.19 When analyzing whether particular conduct is a continuing wrong that can be enjoined, courts consider whether the harm is abatable and whether defendant still has “control over the instrumentality causing the damage.” Rapf v. Suffolk County, 755 F.2d 282, 290 (2d Cir. 1985) (applying New York law) (discussing State of New York v. Schenectady Chems., Inc., 117 Misc.2d 960 (Sup. Ct. Rensselaer Co. 1983), as modified, 103 A.D.2d 33 (3d Dept.1984), and Amax, Inc. v. Sohio Industrial Products Co., 121 Misc. 2d 814 (Sup. Ct. New York Cty. 1983)). 16 See, e.g., Hampton Hgts. Dev. Corp. v. Bd. of Water Supply of the City of Utica, 136 Misc. 2d 906, 912-13 (Sup. Ct. Uneida Co. 1987), aff’d, 140 A.D.2d 958 (4th Dept. 1988) (holding that “each day a municipality operates illegally becomes a new violation of the statute”). 17 Amerada Hess Corp. v. Acampora, 109 A.D.2d 719, 722 (2d Dept. 1985) (no statute of limitations applies to a challenge to the denial of a rezoning application); Gignoux v. Village of Kings Point, 85 N.Y.S.2d 675 (Sup. Ct. Nassau Co. 1948), affd, 274 A.D. 1003 (2d Dept. 1948) (statute of limitations does not apply to action challenging validity of zoning ordinance if no claim for damages is made). 18 State v. CSRI Ltd. Partnership, 289 A.D.2d 394, 395 (2d Dept. 2001), lv. denied, 97 N.Y.2d 749 (2002) (action for injunctive relief to close unlicensed dumping site was timely even though debris and waste were last placed upon the property outside the statutory limitations period). 19 Stalis v. Sugar Creek Stores, Inc., 295 A.D.2d 939, 941 (4th Dept. 2002) (“Because defendant’s obligation to assure code compliance with respect to the septic system was a continuing one, the claims for breach of that obligation are not referable exclusively to the day the original wrong was committed.”). 40 The Village’s repeated invocation of the phrase “open and notorious” in an attempt to suggest an adverse possession analysis (see Village Br. at 3, 4, 5) is misguided because the law is clear that adverse possession cannot be established against land impressed with a public trust. Rodrigues v. Catskill Revitalization Corp., 302 A.D.2d 762, 764 (3d Dept. 2003); Lewis v. Village of Lyons, 54 A.D.2d 488, 490-91 (4th Dept. 1976) (citing Burbank v. Fay, 65 N.Y. 57 (1875); People v. Baldwin, 197 A.D. 285, 288 (1921), aff’d 233 N.Y. 672 (1922); Walsh’s Inc. v. County of Oswego, 9 A.D.2d 393, 395 (4th Dept. 1959)). Indeed, analogizing to both public nuisance and adverse possession principles, courts in other jurisdictions have articulated why it would be manifestly contrary to public policy to allow a statute of limitations to bar public trust claims. For example, as one California appellate court explained in a case involving a legislative expression of the public trust protecting certain fish as trust resources: The situation is similar to that which arises when a nuisance has been maintained for a protracted period of time. If the nuisance is the sort of ongoing conduct that can be discontinued by an order to stop acts or omissions it is viewed as “continuing” and hence “abatable,” despite the fact that the acts or omissions have been conducted for a period beyond that of the pertinent statute of limitations. * * * Another way of viewing the matter leads to the same conclusion. … [S]ince the [rule at issue] pertains to a public trust interest no private right in derogation of that rule can be founded upon the running of a statute of limitations, for the same reasons that one may not acquire an interest in public lands by means of adverse possession. 41 Cal. Trout v. State Water Res. Control Bd., 207 Cal. App. 3d 585, 628-31 (1989) (emphasis added); see also Nat’l Audubon Soc’y v. Superior Court, 33 Cal. 3d 419, 452 (1983) (“The public trust doctrine … imposes a continuing duty …”); Institute for Wildlife Prot. v. U.S. Fish and Wildlife Serv., No. 07-CV-358-PK, 2007 U.S. Dist. LEXIS 85197, at *14 (D. Or. Nov. 16, 2007) (“[t]he principles that underlie the purpose of a statute of limitations are not advanced by and do not support barring claims that seek to hold an agency accountable for actions it is required by statute to perform for the benefit of the public.”). In Phillips Petroleum Co. v. Miss., 484 U.S. 469 (1988), the United States Supreme Court found that the State of Mississippi was not precluded from asserting its public trust rights on property that was owned by landowners who, along with their predecessors-in-interest, had held record title and paid taxes on the lands “for more than a century.” Id. at 481-83. The Village overlooks these cases and instead cites an inapposite decision of an intermediate appellate court from the State of Washington, Neighbors & Friends of Viretta Park v. Miller, 87 Wn. App. 361 (Wash. Ct. App. 1997), review denied, 135 Wn.2d 1009 (1998). Unlike the case at bar, Viretta did not involve a municipality’s ongoing unauthorized use of parkland, but rather its 1914 decision to pave and widen for automobile use a public right-of-law through a park. Neighbors were permitted to use the right-of-way to access their property, on the 42 condition that “[s]uch access … must not interfere with the use of Viretta Park by the general public.” 87 Wn. App. at 369. Although the plaintiffs contended that the dedicators intended to grant only pedestrian access through the park, id. at 371, the court disagreed, finding that the grant did not affirmatively prohibit vehicles and that there was evidence that the dedicators expected the right-of-way to be used for vehicular traffic (which, at that time, included horse and buggy as well as automobiles). Id. at 375. Moreover, portions of the right-of-way led to lots that could not be accessed by vehicle except by crossing through the park, and, under Washington law, courts presume that dedicators intend to provide convenient access to all lots in the plat. Id. at 375-76. Because Viretta is a distinguishable outlier, it does not merit serious consideration by this Court. The Village’s citation to constructive trust cases runs even further afield. See Village Br. at 14. Nevertheless, the analogy undermines the Village’s own argument because, in New York, the continuing wrong doctrine applies in that context as well. See, e.g., Butler v. Gibbons, 173 A.D.2d 352, 353 (1st Dept. 1991) (holding that “a new cause of action accrued each time defendant collected the rents and kept them to himself”); see also Bice v. Robb, 324 Fed. Appx. 79, 81 (2d Cir. 2009) (citing Guilbert v. Gardner, 480 F.3d 140, 150 (2d Cir. 2007); and Bulova Watch Co. v. Celotex Corp., 46 N.Y.2d 606, 611, (1979)). In sum, the overwhelming weight of authority strongly counsels for a rule 43 allowing the ongoing use of dedicated municipal parkland for non-park purposes without approval of the State Legislature to be enjoined regardless of when the use first began. POINT III THE VILLAGE ABANDONED ITS LACHES DEFENSE, WHICH IS UNVAILABLE IN PUBLIC TRUST CASES AND WAS NOT ESTABLISHED BY THE FACTS Finally, the branch of the Village’s appeal based on laches should be rejected for three reasons: waiver, unavailability, and the Village’s inability to establish the elements of the defense. The Village admits that it waived its laches defense in part. Village Br. at 17 (citing brief from first appeal). The Village’s argument that the rule of Telaro v. Telaro, 25 N.Y.2d 433 (1969), allows it to revive the abandoned issue, see Village Br. at 17, does not pass muster for two reasons. First, the Telaro decision specifically noted that the issue being preserved was “a pure question of law,” 25 N.Y.2d at 437, in contrast to laches, which, if available, is necessarily a highly fact-bound defense. Second, in Telaro, this Court explained that “[t]here are some exceptions to this liberalizing rule … includ[ing] concessions made by counsel…” Id. at 439. Here, in its first appeal, the Village abandoned the laches issue based on counsel’s concession that: 44 Defendants recognize that the State’s claims … prohibiting the construction of the Village’s new DPW facility, are not subject to a laches defense. There is no point in pursuing the laches defense against the Capruso Plaintiffs’ first cause of action since, even if successful, Defendants would be faced with the same claim asserted by the State.20 Reply Brief for Defendants-Appellants in Action No. 1 and Defendant-Appellant in Action No. 2, dated July 9, 2010, at 2, n.3. Even if the Village could revive that defense, the Village was correct the first time when it conceded that the State’s claims are not subject to a laches defense, for reasons articulated by the State in its brief in this Court, which Plaintiffs join without repeating here. Moreover, the Village cannot successfully assert laches to defend against a claim brought under the Public Trust Doctrine, especially where the violation is ongoing. As illustrated by cases cited by the Appellate Division (R 1116), laches is unavailable against a claim for equitable relief to enjoin the government’s continuing violation of a public law requirement. For example, in Burke v. Sugarman, 35 N.Y.2d 39 (1974), where petitioners sought removal of persons unlawfully appointed to civil service positions, this Court held that “the doctrine of laches has no application” where the alleged violation is a continuing and Constitutional wrong. Id. at 45 (citing Cash v. Bates, 301 N.Y. 258, 261 (1950) 20 The presence of that concession in the Village’s first appeal brief is presumably why the Village cited its second appeal brief instead. Village Br. at 17. 45 Likewise, in Patrolman’s Benevolent Assn. of Southampton Town, Inc. v. Town of Southampton, where plaintiffs alleged that the town engaged in a “continuing practice” of assigning its police officers to certain duties in violation of State law and the State Constitution, the court held that such actions, if proved true, “constitute a continuing wrong which are not time barred or barred by laches, waiver or estoppel.” 2009 NY Slip Op 32660[U], at **11, 2009 N.Y. Misc. LEXIS 4965, at *5 (Sup. Ct. Suffolk Cty. 2009) (internal citation omitted). This is particularly true in public trust cases for the same reasons discussed above - it is the Village’s perpetual obligation to use parkland for park purposes only; it is not the public’s obligation to police the public trust and file lawsuits at the first sign that anything might be amiss in a park. Similarly, laches is a highly disfavored defense in suits seeking the protection of natural resources, whether brought by governmental or citizen plaintiffs.21 21 See, e.g., Natural Resources Defense Council v. United States Army Corps of Eng’rs, 399 F. Supp. 2d 386, 402-03 (S.D.N.Y. 2005) (“Laches … rarely invoked in environmental cases…”); Steubing v. Brinegar, 511 F.2d 489, 495 (2d Cir. 1975) (in the environmental area, “the primary question is not how much earlier plaintiffs should have sued, but whether injunctive relief pending compliance would still serve the public interest and the purposes” of the governing law); see also Save the Courthouse Committee v. Lynn, 408 F. Supp. 1323, 1333 (S.D.N.Y. 1975) (laches also disfavored in suits to preserve historical and architectural resources); Flacke v. NL Industries, Inc., 228 A.D.2d 888, 890 (3d Dept. 1996) (laches defense unavailable against a governmental entity “acting in a governmental capacity to enforce a public right or protect a public interest”); Student Pub. Int. Res. Group v. P.D. Oil & Chemical, 627 F. Supp. 1074, 1085 (D.N.J. 1986) (“As citizen plaintiffs stand in the shoes of the government ‘as private attorneys general,” it makes no sense to apply laches in a citizen suit. Citizen plaintiffs should not have fewer rights to enforce the statute than government agencies.”). 46 Furthermore, even if the Village could revive the issue, and even if laches were available as a defense to claims such as those presented here, the Village cannot come close to establishing the elements of laches on the facts of this case. First, there has been no delay, unreasonable or otherwise, by the Plaintiffs; rather it was the Village that told the Plaintiffs to hold their objections to, and even their requests for information about, the Proposed DPW Project until the public meeting that took place on November 20, 2008. See generally R 434-38, 699-704, 691-94. “Preaction laches is not available to the defendants because of their own conduct in misleading their neighbors into inaction.” Goodfarb v. Freedman, 76 A.D.2d 565, 571 (2d Dept. 1980); see also Nassau County v. Bigler, 1 Misc. 3d 910(A), 781 N.Y.S.2d 626, (Sup. Ct. Nassau Cty. 2001) (disposing of laches defense where “the defendant herself contributed to the delay in resolving the case”). In particular, the Village repeatedly rebuffed the Plaintiffs’ attempts to involve themselves in or learn about the planning of the Proposed DPW Project, claiming that it would be “premature” until the public meeting at which the proposal would be announced. R 436. Despite the Plaintiffs’ repeated letters and visits to Village Hall over a three year period, from 2005 to 2008, the mayor refused to meet with them to discuss their concerns about the planned facility. R 435-36. Mr. Capruso submitted Freedom of Information Law (FOIL) requests for plans showing location of the proposed construction, but the Village clerk would 47 not honor many of those requests on the basis that no formal plan was ready for presentation to the public. R 436. On each occasion that the Plaintiffs tried to involve themselves in the planning process, the Village Clerk insisted that the Village was merely “considering using the land in question for a new DPW garage facility” (R 435; emphasis added), that no decision had been made to build it (id.), that any attempt to participate in the planning process should await the public meeting that would take place once plans were sufficiently developed for presentation to the public (R 436), that the public meeting would be only the beginning of the decisionmaking process and that changes would be made based on public input and other factors. R 435-36. At their depositions, the mayor and Village Clerk admitted virtually all of these facts (R 699-704, 691-94), which, in any event, were already established in Mr. Capruso’s affidavit (R 434-38), which is admissible to oppose a CPLR 3211 motion to dismiss. See Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636 (1976). At the November 2008 public meeting, the Plaintiffs suggested that the Village rebuild its DPW garage and headquarters at its existing location outside the Western Corner, but the Village rejected that request. R 437. Shortly after the public meeting, the Plaintiffs first learned that the Village lacked not only the required legislative approval to construct the Proposed DPW Project in the Western Corner, but also authorization for the existing non-park activities in the 48 Western Corner. R 438. The Plaintiffs then had to locate and consult with an attorney to confirm that the Village’s activities were illegal and could be challenged in court. Id. at 437-38 In sum, there is absolutely no basis for the Village’s argument that there has been an unreasonable delay by the Plaintiffs that could support a laches defense, when, in fact, it was the Village that told the Plaintiffs to wait. Furthermore, laches also requires prejudice or injury caused by the purported unreasonable delay, which is not present here. Although the Village asserts that it has spent $500,000, mostly on architectural and engineering fees, in planning to build a new DPW building (Village Br. at 20, R 264), the Village will not be harmed in that amount and, in any event, the Village’s own conduct caused or contributed to any loss it might suffer. Assuming it does not obtain the approval of the State Legislature, the Village may still rebuild its DPW building somewhere, just not in the Park. The Village may then modify its plans as needed for the new site, rather than start from scratch. Moreover, such increased expenditure is exactly what Plaintiff Capruso sought to avoid when he specifically told the Village Clerk that “citizen input should be obtained in the beginning and middle of the planning process, and not at the end, because it is more expensive to change engineering and architectural plans once they have been made.” R 436 (emphasis added); see also R 702-703. But the Village rebuffed that offer too, telling Mr. 49 Capruso that he must wait until after the plans had been developed and formally unveiled to the public to obtain copies under FOIL and to provide any input. Id.; see also R 703-704. The Village, which is one of the wealthiest communities in New York State (R 45-46), has sophisticated legal counsel, and was aware of the Public Trust Doctrine, nevertheless chose to spend $500,000 designing a DPW facility on land it knew is mapped and used as parkland. Accordingly, the Village cannot be heard now to complain that the Plaintiffs should have opposed the Proposed DPW Project earlier or that the expenditure represents a change in position in reliance upon any acts or omissions of Plaintiffs. Finally, the Village has not even alleged that it has been harmed by any alleged delay in seeking to enjoin the existing uses. To the contrary, the Village has benefited from the fact that such claim was instituted in March 2009, as opposed to an earlier date, in that the Village has been able to illegally use that parkland for a longer period of time. As the Village admits, a lower court’s decision whether to apply laches will not be disturbed absent an abuse of discretion as a matter of law. Village Br. at 16. In the circumstances presented, particularly in light of the Village’s own actions described above, there plainly has been no abuse of discretion. 50 CONCLUSION For the foregoing reasons, the orders appealed from should be affirmed. Dated: November 1, 2013 New York, New York Respectfully submitted, _____________________________ Reed W. Super Alexandra I. Hankovszky SUPER LAW GROUP, LLC 131 Varick Street, Suite 1033 New York, NY 10013 (212) 242-2355 Albert K. Butzel ALBERT K. BUTZEL LAW OFFICES 249 West 34th St, Suite 400 New York, NY 10001 (212) 643-0375 Attorneys for Plaintiffs-Respondents ADDENDUM Putting the Public Trust Doctrine to Work The Application of the Public Trust Doctrine To the Management of Lands, Waters and Living Resources of the Coastal States November 1990 THIS REPORT WAS PREPARED UNDER CONTRACT WITH THE CONNECTICUT DEPARTMENT OF ENVIRONMENTAL PROTECI10N, COASTAL RESOURCES MANAGEMENT DMSION, WITH FUNDS PROVIDED UNDER SECTION 309 OF THE FEDERAL COASTAL ZONE MANAGEMENT ACT BY THE OFFICE OF OCEAN AND COASTAL RESOURCES MANAGEMENT, NATIONAL OCEANIC AND ATMOSPHERIC ADMINIS1RA TION, UNITED STATES DEPARTMENT OF COMMERCE, AS PART OF A NATIONAL PROJECT ON THE PUBUC 1RUST DOCTRINE. PUTTING THE PUBLIC TRUST DOCTRINE TO WORK The Application of the Public Trust Doctrine TotheAfanagementof Lands, Waters and Living Resources of the Coastal States Prepared by: David C. Slade, Esq. Project Manager, National Public Trust Study Chavters I through Yl written by.· David C. Slade, Esq. R. Kerry Kehoe, Esq. Margaret M. Fleming Coastal States Organization Washington, D.C. Chapters VII through X/1 written by: Donald L. Connors, Esq. Kenneth Laurence, Esq. Sarah Chapin Columbia, Esq. Choate, Hall & Stewart Boston, Massachusetts -and- Jack H. Archer, Esq. Robert Bowen University of Massachusetts Boston, Massachusetts Origins and History A. The Public Trust Doctrine: Why is it Important? In 1820, a New Jersey man was collecting oysters along the shores when he was challenged as a trespasser by the upland property owner. The dispute reached the New Jersey Supreme Court, where a justice expressed surprise that the taking of: "a few bushels of oysters should involve in it questions, so momentous in their nature, as well as in their magnitude; .. . affecting the rights of all our citizens, and embracing ... the laws of Nations and of England, the relative rights of sovereign and subjects, as well as the municipal regulations of our own country."1 If the taking of a few oysters raises such fundamental questions affecting the rights of all citizens, then clearly the building of private docks, construction of marinas, or the dredging of ship channels, among the countless other activities within the purview of coastal managers, merit close attention. In each instance, from oysters to ports, the Public Trust Doctrine applies. Whenever a State exercises its authority under the Public Trust Doctrine, the rights of all citizens are involved. Generally speaking, all navigable waters and the lands beneath these waters are subject to the Public Trust Doctrine. See Ch. II,§ 1. In the United States, there are 79,481 square miles of inland navigable waters, 74,364 square miles of coastal waters, and an estimated 37,500 square miles of ocean waters within the jurisdiction of the coastal states. This totals to approximately 191,000 square miles of navigable waters within the boun- daries of the states - roughly equal in size to Maryland, Virginia, North Carolina, South Carolina and Georgia combined - most of which is subject to the Public Trust Doctrine. Further, there are 88,633 miles of tidelands and 10,031 miles of Great Lakes shoreline, for a total of 98,664 miles of trust shoreland. Along this tremendous length of shoreline, over 90 percent of the adjacent uplands are privately owned, raising difficulties for the public to access the trust shorelands below the ordinary high water mark. The Public Trust Doctrine is a very important part of the body of law that applies to this tremendous and special area of lands and waters. To effectively manage the countless activities that take place within these 191,000 square miles of navigable waters, including the lands beneath and the living resources inhabiting them, a coastal manager must be familiar with the Public Trust Doctrine. B. The Public Trust Doctrine: What Is It? The Public Trust Doctrine provides that public trust lands, waters and living resources in a State are held by the State in trust for the benefit of all of the people, and establishes the right of the public to fully enjoy public trust lands, waters and living resources for a wide variety of recognized public uses. The Public Trust Doctrine is applicable whenever 3 PU1TING THE PUBUC TRUST DOCTRINE TO WORK navigable waters or the lands beneath are altered, developed, conveyed, or othef'Wi managed or preserved. It applies whether the trust lands are publicly or privately own: ~~ d~ctrine articulates not only. the pub~c rights in these lands and waters. It also se~ hmttanons on the States, the public, and pnvate owners, as well as establishing duties and responsibilities of the States when managing these public trust assets. The Public Tru t Doctrine has been recognized and affinned by the United States Supreme Coun, the low: federal courts and State courts from the beginning days of this country to the present r The "trust" referred to is a real trust in the legal sense of the word. There are trust assets, generally in the fonn of navigable waters, the lands beneath these waters, the living resources therein, and the public property interests in these trust assets. The trust has a clear and definite beneficiary: the public. There are trustees: the State legislatures, which often delegate their trust powers and duties to State coastal commissions, land commissions, or similar State agencies. There is a clear purpose for the trust: to preserve and continuously assure the public's ability to fully use and enjoy public trust lands, waters and resources for certain public uses. In the United States, each State has the authority and responsibility for applying the Public Trust Doctrine to trust lands and waters "within its borders according to its own views of justice and policy. "2 As a result, there is really no single 'Public Trust Doctrine. • Rather, there are over fifty different applications of the doctrine, one for each State, Territory or Commonwealth, as well as the federal government. Nonetheless, a common core of principles remains, fonning the foundation for how the Doctrine is applied in each State, Commonwealth or Territory. See Ch. II, § l.B. C. Origins of the Public Trust Doctrine It is often stated that the Public Trust Doctrine dates back to the sixth century Institutes of Justinian and the accompanying Digest, which collectively fonned Roman civil law, codified under the reign of the Roman Emperor Justinian between 529 and 534 A.D. The sixth century Institutes of Justinian, however, were based, often verbatim,3 upon the second century Institutes and JoumalofGaius,4 aneminentRomanjurist, who codified the natural law of Greek philosophers. The sixth century Romans who wrote the Institutes must have regarded the Institutes of Justinian as the re-codification of ancient law. Ancient in their own right, as well as a recodification of even more ancient law, the Institutes of Justinian remain the touchstone oftoday's Public Trust Doctrine. The public's right to full use of the seashore emanates from a commonly quoted section of Book n of the Institutes that described the public nature of rivers, ports, and seashore: "By the law of nature these things are common to all mankind- the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is 4 Origins and History forbidden to approach the seashore, provided that he respects habitations, monu- ments, and the buildings, which are not, like the sea, subject only to the law of nations. "5 Specific public rights in the use of the seashore were delineated in the Institutes and the Digest, such as: • • • • "Any person is at liberty to place on it a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea:•6 "The right of fishing in the sea from the shore belongs to all men.''7 "Everyone has a right to build on the shore, or, by piles, upon the sea, and retain the ownership of the construction so long as it lasts, but when it falls into ruins, the soil reverts to its fonner status as res communis."8 ' 'The public use of the banks of a river is part of the law of nations, just 'as is that of the river itself. All persons, therefore, are as much at liberty to bring their vessels to the bank, to fasten ropes to the trees growing there, and to place any part of their cargo there, as to navigate the river itself. But the banks of a river are the property of those whose land they adjoin; and consequently the trees growing on them are also the property of the same persons.'-9 Roman civil law eventually influenced the jurisprudence of all Western European nations. Most important to American jurisprudence, Roman civil law was adopted in substance (with modifications) by English common law after the Magna Charta. English common law in tum recognized the special nature of the tidelands and waters, giving them protection in the Icing's name for all English subjects. From England to the American colonies, through the American Revolution to the Thirteen Original States, tempered by the United States Constitution and the evolution of modem society, the Public Trust Doctrine survives in the United States as "one of the most important and far-reaching doctrines of American property law:•lO D. The Special Nature of Public Trust Lands Public trust lands, generally speaking, are those lands below navigable waters, with the upper boundary being the ordinary high water mark. Tidelands, shorelands of navigable lakes and rivers, as well as the land beneath the oceans, lakes and rivers, are usually considered public trust lands. See Chapter II, § 1. The Romans recognized the special status of the seashore: ''The shores are not understood to be property of any man, but are compared to the sea itself, and to the sand or ground which is under the sea.''11 English common law viewed these shorelands as 5