On December 7, 2021, I wrote a blog about the legal suit brought to stop the destruction of the East River Park in the Lower Eastside of Manhattan. I discussed the decision of the Appellate Division, First Department in Matter of East River Park Action v City of New York (Index No. 151491/20) denying an application to annul a vote of the City Council which modified the zoning resolution in order to facilitate the construction of the development of the East Side Coastal Resiliency Project.
The project adopted by the City includes installation of a below-grade flood protection structure with the park elevated on top. The local community opposed the project arguing that there were better, less intrusive ways to accomplish coastal flood protection. It also argued that the project would destroy the park and destroy 1,000 mature trees. The Court did not agree citing, Union Sq. Park Community Coalition, Inc. v New York City Dept. of Parks, 22 NY3d 648 (2014). It stated, “[T]he public trust doctrine is not an avenue by which to challenge every decision about a park made by the City simply because any individual or the community disagrees with the municipality’s decision. The Parks Department ‘enjoys broad discretion to choose among alternative valid park purposes.’”
Well, no, it doesn’t.
The Court of Appeals issued a stay on December 8, 2021.
The Appellate Division completely ignored the Court of Appeals decision in Friends of Van Cortlandt Park v City of New York, 95 NY2d 623 (2001).
In the Van Cortlandt Park case, the City was required by the federal government in a lawsuit brought by the United States Environmental Protection Agency to build a water treatment plant. It decided to build the plant on the Mosholu Golf Course in Van Cortlandt Park.
Just as the City seeks to build its water retention structure with a park over it in East River Park, the City’s water treatment plant in Van Cortlandt was to be built underground.
The Court of Appeals held that the water treatment plant is a non-park use. The Court stated that Court have time and again reaffirmed the principle that parkland is impressed with the Public Trust.
It held that it was clear that legislative approval is required when there is a substantial intrusion on parkland for non-park purposes regardless of whether the parkland is ultimately to be restored.
Further, the Court held “[t]hough the water treatment plant plainly serves an important public purpose *** – our law is well settled: dedicated park areas in New York are impressed with a public trust for the benefit of the people of the State.” 95 NY2d 623, 632.
In my opinion, the proposed development of the East River Park without legislative approval is clearly illegal and will be struck down by the Court of Appeals.