June 2003

Parks and the public trust

by Paul M. Bray

After a terribly elongated winter, a walk in New York City's Central Park on a warm spring day was a true delight. The tulips were brilliant in their various colors and happy faces of people of all ages abounded. An action a hundred and fifty years ago by the State Legislature made it possible. In 1853 the State Legislature put a stop to wrangling over the park idea and rejected "ho-hum plans" in favor creating a vast urban park from 59th Street to 106th Street (later expanded to 110th Street).

We should never lose sight of the fact that the State Legislature can do the right thing as it did for Central Park and, while our market crazed society creates immediate wealth, it is the creations of government like our parks, libraries and landmarks like the Brooklyn Bridge that are an enduring legacy enriching all of our lives.

Yet, our parks are never free from threat whether it was the deterioration that plagued Central Park in the 1970s or public officials who wish to discontinue parkland use for some other public venture like roadways, water or sewer treatment facilities or recreational facilities that are inconsistent with the natural character of the threatened park.

In New York State we only go part way in protecting the parkland legacy for future generations and it frequently falls to the State Legislature to be the guardian. Now it is the difficult issue of proposed alienation of a portion of Van Cortlandt Park in the Bronx for a water filtration plant. Initially, New York City tried to steam roll the use of a portion of the Park for the filtration plant only to be stymied by the Court of Appeals.

New York courts have drawn from the Roman and English public trust doctrine to reach the conclusion that municipalities cannot alienate or discontinue park land without the approval of the state legislature.

The public trust doctrine recognizes and protects the public interest in what is considered essential to mankind. In the Institutes of Justinianus it was declared, "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." The doctrine, albeit "resoundingly vague, obscure in origin and uncertain in purpose", has evolved to create in various ways a public servitude or easement to protect ecological and cultural resources for future generations. The public right is inalienable by the State that holds the trust and it cannot be fully privatized. Generally, courts in the United States have determined that the commons subject to the public trust is tidal and navigable waters held by the States in their sovereign capacity as trustee for the benefit of citizens who have a right to use the waters and adjacent land for navigation, fishing, hunting and bathing.

Under the public trust doctrine we possess an inalienable ownership interest in navigable waters. Increasing this doctrine is being applied to recognize a public ownership interest in forests, wetlands, wilderness, watersheds, archeological sites and park land. Law Professor Joseph Sax wrote three decades ago at the beginning of the environmental age, "Of all concepts known to American Law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems."

While free market economics appear to know no limits for the radical republicans in Washington, the notion of public trust and parks, individually and together, can protect the public interest in health, recreation or even aesthetics when it comes to exploiting the environment. Our National Parks are created both for purposes of public enjoyment but also to protect land and related resources for the benefit of future generations. The future generations thing is hard for some to grasp when it comes at the expense of immediate profit.

The Friends of Van Cortland Park and other plaintiffs challenged the construction of a water treatment plant, an agreed "non-park use" in the Park by New York City with getting State Legislative approval. The City argued that it didn't need legislative approval because the plant will be substantially underground, with park surfaces fully restored.

Chief Judge Kaye of the Court of Appeals wrote the opinion declaring: "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. Their 'use for other than park purposes, either for a period of years or permanently, requires direct and specific approval of the State Legislature, plainly conferred".

This decision threw the matter of building in Van Cortlandt Park to the State Legislature. Blocked from by passing the Legislature, New York City is using vocal labor union support for the project to drive the alienation bill through the legislative process. Issues relating to parks arise in every legislative session as legislation is proposed to allow local officials to alienate or discontinue park land. Generally, whether the legislature authorizes alienation depends on whether the local state legislators are in favor of alienation. If they are, the alienating municipality is called upon to identify some replacement value for the discontinued parkland, either dedication of comparable new parkland or applying the proceeds from the discontinuance for park or recreation purposes.

This legislative hoop may block some alienation because municipalities fear that park advocates will create a perfect storm of bad politically charged publicity. But the dozen or more alienation bills that do see the light of day in the legislature are subject to relatively modest scrutiny of basic values.

Parks differ greatly from asphalt playgrounds to Central Park with highly valued and irreplaceable landscape design to unique natural areas sometimes called preserves like the Long Island Pine Barrens Preserve. A small urban park may be the life-blood of a neighborhood even though its environmental value may be modest. That all parks are not alike requires each proposal for alienation to be considered on its particular circumstances and, if alienation is justified, to be considered for determining what is fair and reasonable mitigation in the form of new parkland or increased investment park maintenance or programs for the loss of parkland.

If the Legislature is found wanting as guardian of the public trust, it suggests that the court may need to raise the bar to alienation higher than simply placing the decision in the lap of the Legislature.

Proposed legislation to alienate the portion of Van Cortlandt Park is focusing attention on how the Legislative decision is made over whether or not to allow alienation go forward. The Sierra Club is calling upon the Legislature to take seriously its responsibilities in preserving the public trust in parkland and not proceed until environmental reviews, in this case the environmental impact review considering two additional sites for the filtration plant, are complete.

Perhaps if we showed higher regard for the great achievements of the State Legislature like the creation of Central Park and the Adirondack Forest Preserve and Park, we would be building the expectations of today's legislators for themselves as keepers of the public trust as they struggle with the political rough and tumble of Capital politics. At the end of this year's legislative work, it will be interesting to see what was done regarding Van Cortlandt Park not just for the immediate effect but whether it has taught any lessons that will make the Legislature a better steward of the public trust in the future.

Paul M. Bray is President of the P.M.Bray LLC, an Albany environmental and planning law firm. His e-mail address is pmbray@aol.com.