Protecting Parkland

PTNY joined the Natural Resources Defense Council and the Sierra Club in submitting an amicus curiae (friend of the court) brief on an important park alienation (the taking of parkland for other uses) court case that could potentially weaken protection of parkland. The case involves the application of the public trust doctrine in a particular park alienation case but has important broader implications in New York State.

The brief was submitted in support of the decision of the Appellate Court which held that the City of New York and its development partners could not construct a regional shopping center on dedicated parkland in Flushing Meadows Park in Queens without first obtaining the specific and direct approval of the State Legislature, as required by the public trust doctrine.

This case is centered on statutory interpretation, the essential question being whether the 1961 legislation that authorized the construction of Shea Stadium in Flushing Meadows Park also allowed the development, 55 years later, of a shopping mall in the Park.

For PTNY and the other amici, the essential point is whether the protections afforded dedicated parkland under the State’s public trust doctrine are to be significantly diluted by a conclusion that a few offhand words will suffice when it comes to the requisite State legislative approval for parkland alienations and whether the Court’s prior holdings that any legislative consent must be direct, specific and plainly conferred are to be overridden.

Parkland alienation in NYS

Although we like to think that park lands are sacrosanct, they can be lost or carved up for other uses, like cell towers or municipal garages. It’s called “park alienation” – the taking of parkland for non-park use.

When that happens in New York State, the general principle is that the lost recreational space is supposed to be replaced, one way or another. This is a reflection of what legal scholars call the “public trust doctrine,” literally dating all the way back to the Roman Empire, which holds that lands, waters, shorelines and other resources held by the public cannot be given away.

But it doesn’t always work that way in practice. Perhaps because the basic legal principle is so ancient, the carving up of municipal parklands is governed by a mishmash of case-by-case laws and court decisions in New York State. There are documented instances in which municipalities have replaced lost parklands with parcels of less value – and sometimes, with nothing at all.

So the taking of parkland for non-park use is a problem, especially in dense urban areas where land is scarce. Takings have run the gamut from using parkland for other municipal services, such as water filtration, sanitation, and parking lots, to outright selling of parkland for private development. Just in the last few years, takings have been approved to allow for the development of an apartment complex, the construction of an air remediation tower, and the possible development of a package distribution center. Each single instance may seem to have only a limited, local impact, but multiple takings over time result in a significant whittling away of precious community parkland.

The courts have tried to uphold the principle that before taking parkland for non-park use, a municipality must get permission from the Legislature. In most such cases, the Legislature has required the municipalities to either provide replacement parkland or dedicate funding toward the acquisition of additional parkland or park improvements.

Parkland is vital to the sustainability and resiliency of local communities and the health and quality of life of all New Yorkers. Whether it’s a wooded picnic area or a ball field, the local parks we grow up with create lasting memories and cement our relationship with the outdoors.

PTNY is leading the effort in the state to codify the public trust doctrine, provide for greater government transparency and accountability, and protect community parkland from death by a thousand cuts.



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