PRELIMINARY STATEMENT

The State of New York by Eliot Spitzer, Attorney General of the State of New York, as amicus curiae, submits this memorandum of law in support of the petition which seeks to enjoin the construction of residential housing on parkland on Roosevelt Island in New York City. The private housing proposal approved by Respondent Roosevelt Island Operating Corporation (RIOC) encroaches on a portion of land subject to a restriction on alienation under a municipal parks project grant from the State that prohibits the use of the land for non-park purposes. The housing proposal also utilizes half of the remaining unimproved parkland of Octagon Park, in violation of a state statute intended to preserve open space on Roosevelt Island. The State seeks to ensure that the legislature's parkland protections are given full effect in furtherance of this declared policy.

INTEREST OF AMICUS

The importance of preserving and improving the City's open spaces is well known. The Attorney General has sought leave to file this memorandum of law as amicus curiae because of the need for open space in cities, and to uphold the purpose and intent of the state legislature's efforts to protect open space on Roosevelt Island. In New York City, which has a population of over 8 million people, the demand for park space outstrips available supply. Among the twelve high-density cities in the United States, New York City ranks 10th in parks acreage per thousand. Even small parcels of open space in the City have significant value to its residents and are as deserving of protection as large pristine tracts of land in rural areas. However, remaining open space in the City, no matter how large or small, is frequently targeted for construction projects. While many such projects may be worthy, state law long has barred development on parkland absent specific legislative approval. The Attorney General seeks leave here in order to emphasize the importance of strict readings of the statutory protections for parkland and open space.

FACTUAL BACKGROUND

In 1969, the City entered into a 99-year lease (the Lease) with NYS Urban Development Corporation (UDC) for construction of two residential communities on Roosevelt Island as outlined in a General Development Plan (GDP) annexed as Schedule 2 to the Lease. UDC was obligated to develop 5,000 residential housing units in two areas designated as North Town and South Town, with a mix of 75% subsidized and middle income and 25% market rate housing. UDC was also obligated to develop or improve various public facilities which included þOpen Spaces Areas to be developed as parks . . . ,þ which were to serve the residents of the City as a whole. The Open Spaces were specifically identified in the GDP and included a 25-acre Octagon Park, which contained the Octagon building landmark (the derelict remains of an þinsane asylumþ built in the 19th Century) and the site for an Urban Ecology Center. Quart Affirmation, Exhibit 1 (Lease, including GDP).

Despite this mandate, a portion of Blackwell Park that had been set aside as an Open Space area was encroached upon and the park lost three of its six acres during the construction of housing in the southern part of the North Town area of Roosevelt Island. During construction in the northern part of North Town, Octagon Park was also encroached upon thereby reducing the size of the Park from its original 25 acres to 15 acres. Quart Affirmation Exhibit ____. A 1990 amendment to the GDP, approved by the City, ratified the reduction of Octagon Park and also significantly increased the proportion of market-rate housing in SouthTown. The reduction of Blackwell Park has never been ratified by the City. Quart Affirmation, Exhibit 3 (1990 Amendment).

In January 1992, the State Office of Parks, Recreation and Historic Preservation (OPRHP) awarded RIOC a $1 million grant for constructing and improving outdoor recreation facilities (including picnic tables, sports fields, tennis courts, a bicycle trail, a passive park and a community garden) and ancillary facilities (including walkways, landscaping, and lighting) in Octagon Park. Grant No. EQ-90-MP-10049, and Contract No. C002053. Quart Affirmation, Exhibit 4 (EQBA Grant). The project was funded under the municipal parks project program of the Environmental Quality Bond Act of 1986 (EQBA). N.Y. Envtl. Conserv (ECL)  52-0901(4) (2004) . Quart Affirmation, Exhibit 4 (EQBA Grant).

Recognizing the limitation on development of Octagon Park, on August 30, 2004, RIOC conditioned the approval of the current housing proposal upon the developer obtaining þall required consents of the legislature of the State of New York.þ Quart Affirmation, Exhibit 9. On October 14, 2004, RIOC authorized the lease of 2.5 acres of Octagon Park and the construction of two 13-story housing towers to be attached to the historic landmark Octagon building, all within Octagon Park. Quart Affirmation, Exhibit 10. The construction includes an area of the park subject to the EQBA municipal parks grant. Quart Affirmation, Exhibit 8 (Environmental Assessment, at ____). Construction work has already begun on the parkland, including the destruction of trees. Quart Affirmation, Exhibit ____ (____ Affirmation).

ARGUMENT

STATUTORY PROTECTIONS MUST BE
STRICTLY CONSTRUED TO PROTECT PARKLAND IN
FURTHERANCE OF DECLARED STATE POLICY

The State has expressed its strong policy to protect parkland in many statutes, case law, and legislative actions. This important goal must infuse the reading of the statutes at issue here, requiring that the legislature's protective aims be given full effect.

1. Octagon Park May Not Be Used for Non-Park Purposes
Absent Strict Compliance with the Environmental
Conservation Law Parkland Protections

In 1992, RIOC was granted $1 million in state funds under the EQBA municipal parks project program. ECL 52-0901(4); Quart Affirmation, Exhibit 4 (EQBA Grant). As part of the EQBA-funded parks project, RIOC constructed tennis courts in the northeast corner of Octagon Park, as well as other recreational and ancillary facilities within the Park. Upon completion of the project, RIOC submitted a map of the þArea Completed Under Grant # EQ-90-MP-10049,þ setting forth the area of Octagon Park that was subject to the EQBA municipal parks project grant. Quart Affirmation, Exhibit 5 (1997 Grant Amendment with mapped area). That mapped area included property immediately adjacent to and slightly southeast of the Octagon landmark on which six tennis courts were constructed.

The private housing proposal on 2.5 acres of Octagon Park includes the construction of over five hundred housing units in two 13-story towers, incorporating the Octagon landmark into the structure and substantially converting it to private use. To accommodate the new towers, the private housing proposal moves the existing tennis courts some fifteen feet to the east. On part of the property that formerly served as tennis courts, RIOC has authorized construction of a parking area in the front of the housing complex which will also serve as a fire lane for the apartment towers. This parking space and fire lane is located on a part of the mapped area subject to the EQBA municipal parks project grant, and the consequent restrictions imposed by that grant. Quart Affirmation, Exhibits ____.

Under the ECL, however, RIOC may not alienate this parkland without the express authority of the legislature and without a legislatively specified substitution of equivalent land. ECL  52-0907 provides:

Restriction on alienation. Real property acquired, developed, improved, restored or rehabilitated by a municipality pursuant to subdivision four of section 52-0901 of this title with funds made available pursuant to this title shall not be sold or disposed of or used for other than public park purposes without the express authority of an act of the legislature, which shall provide for the substitution of other lands of equal fair market value and reasonably equivalent usefulness and location to those to be discontinued, sold or disposed of, and such other requirements as shall be approved by the commissioner.

(Emphasis supplied.) Here, the legislature has not expressly nor plainly authorized the alienation effectuated by the housing proposal. Nor has RIOC ever obtained the legislative approval for substitution of equivalent land meeting specific requirements of ECL  52-0907.

While the portion of the mapped area that is subject to the EQBA municipal parks grant and that is being alienated for housing is small in size, the principle remains prominent: RIOC must obtain the approval of the state legislature for any such alienation, no matter the size. For example, under the analogous common law parkland doctrine, even extremely small parcels of land require legislative approval before they can be used for non- park purposes, often with the condition that any parkland taken be replaced with additional parkland. For example, a transfer of an easement for but 100 square feet of parkland for an underground cable required legislative approval. L.1998, ch. 453,  1(c). See also L.1996, ch. 470 (including discontinuance for parkland purposes of parcel of 0.2 square feet of parkland in Foley Square street reconstruction); L.1999, ch. 609 (1,911 square feet); L.1997, ch. 572 (including parcel of .03 acres, approximately 1,320 square feet). A small area of open space in a crowded area of the city may be more critical than an area 1,000 times the size in a rural area. Thus, neither the statutory language nor the underlying policy of this ECL provision allows of a de minimis exception.

2. The 2002 RIOC Amendment Must Be
Read Strictly to Protect Parkland

In 2002, the legislature amended RIOC's authorizing statute to expressly prohibit development or construction for other than park purposes on Open Spaces on Roosevelt Island, including Octagon Park. Given the longstanding protection of parkland, this statutory prohibition against development on parkland must be read strictly.

In the amendment, the legislature provided:

Notwithstanding any other provision of this act, or any other law to the contrary, on or after the effective date of this section, no further development or construction for other than park purposes shall be permitted on any real property which is identified as open space areas in the general development plan as amended May 10, 1990 and approved by the board of estimate of the city of New York on August 17, 1990 and referred to in the lease defined in subdivision six of section two of this act, and on [sic] such real property shall remain open space areas for the duration of the lease unless such development or construction includes the reconstruction, restoration, rehabilitation or preservation of the historic landmarks located in such open space areas and furthers the use of the areas surrounding the historic landmarks as open space areas. Open space areas, as used in this section shall be limited to Lighthouse park, Octagon park, Blackwell park, and South Point park.þ

L.2002, Ch. 493 (hereafter the þAmendmentþ), amending Unconsol. L.  6394-a (emphasis added). The construction of five hundred private housing units in two 13-story housing towers on 2.5 acres of the remaining unimproved 5 acres of Octagon Park does not constitute allowable development or construction.

The principle set forth in the Amendment serves to effectuate long- established New York law that recognizes the value of parkland and scrupulously protects it. For well over a century, the courts have held that þdedicated park areas in New York are impressed with a public trust for the benefit of the people of the State. Their þuse for other than park purposes, either for a period of years or permanently, requires the direct and specific approval of the State legislature, plainly conferred'.þ Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 631-32 (2001) (quoting Ackerman v. Steisel, 104 A.D.2d 940, 941 (2d Dept. 1984), aff'd on opinion below, 66 N.Y.2d 833 (1985)). See also Brooklyn Park Commissioners v. Armstrong, 45 N.Y. 234 (1871); Bates v. Holbrook, 171 N.Y. 460 (1902); Williams v. Gallatin, 229 N.Y. 248, 253 (1920); Gewirtz v. City of Long Beach, 69 Misc.2d 763 (1972), aff'd, 45 A.D.2d 841 (1974); Aldrich v. City of New York, 208 Misc. 930 (1955), aff'd, 2 A.D.2d 760 (2d Dept. 1956). So clear is the importance of preserving parkland in New York that courts accord the protection even to parkland that is not officially dedicated. As recognized by the Third Department: þCertainly, a parcel may become a park either through express provision, such as restrictions in a deed or legislative enactment, or by implied acts, such as a continued use of the parcel as a park or by certain acts of the [municipality].þ Lazore v. Bd. of Trustees of Village of Massena, 191 A.D.2d 764, 765, (3d Dept. 1993) (citations omitted) (emphasis added). It was this protection of open space that the legislature intended for Octagon Park in the Amendment, a protection that, consistent with state policy, must be read broadly and strictly to preserve parkland.

RIOC likely will argue that the private housing proposal is deemed covered by the exception to the Amendment and/or the exception constitutes an alienation of parkland by the legislature. The Amendment provides that the property shall remain open space, þunless such development or construction includes the reconstruction, restoration, rehabilitation or preservation of the historic landmarks located in such open space areas and furthers the use of the areas surrounding the historic landmarks as open space areas.þ RIOC apparently interprets the exception as providing for any development, as long as it includes but is not limited to rehabilitation of the landmark. This interpretation would also fail to give meaning to the second clause regarding furthering the use of the surrounding area as open space space where, as here, the purported þimprovementþ renders the surrounding area inaccessible to the public.

RIOC's interpretation of the statutory language fails for several reasons. First, RIOC's broad reading of the exception would swallow the general rule, and statutory construction principles forbid such a result. þA statutory exception must be strictly construed so that the major policy underlying the legislation is not defeated. Exceptions extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exception.þ Thomas E. Radich v. Council of the City of Lackawanna, 93 A.D.2d 559, 562 (4th Dep't.), aff'd, 61 N.Y.2d 652 (1983). The exception must be viewed in the context of the general principle established in both the Amendment and long-standing state policy that no construction or development on parkland is allowed for other than park purposes. In that context, the Amendment limits development or construction to that which only rehabilitates the historic landmark and which furthers the use of the areas surrounding the landmark as public open space areas. While in this case the Octagon Building is being rehabilitated, the construction of two 13- story towers does not further the use of the parkland þas open space areas.þ

Second, the exception to the Amendment does not constitute the form of legislation required to effectively alienate property that has been dedicated as parkland under the public trust doctrine or that has been the subject of an EQBA municipal parks grant. An alienation of parkland þrequires the direct and specific approval of the State Legislature, plainly conferred.þ Friends of Van Cortlandt Park, 95 N.Y.2d at 632. The exception to the Amendment does not plainly, directly or specifically indicate what area or portion of the Open Spaces are subject to alienation other than the historic landmarks themselves within the Open Spaces.

Courts have found statutes or ordinances incapable of alienating parkland without express State legislative authority. See, e.g., American Dock Co. v. City of New York, 174 Misc. 813 (Sup. Ct. New York Cty. 1940), aff'd, 261 A.D. 1063 (1st Dept.), aff'd, 286 N.Y. 658 (1941) (City cannot contract with private entity for operation of facility held for public use without legislative authority); Aldrich, 208 Misc. 930 (Sup. Ct. Queens Cty. 1955) (no alienation for non-park uses such as hotel and beach club); Gerwitz, 69 Misc.2d at 775 (Sup. Ct. Nassau Cty.1972) (city cannot alienate, for residents only, a beach that has been dedicated as parkland by use over thirty years without legislative authority which þmust be þplainly conferred', þspecial' in nature, þspecific,' þdirect' or þexpress.þ); In the Matter of Lake George Steamboat Co. v. Blais, 30 N.Y.2d 48, 51-52 (1972) (city prohibited from alienating 110 feet of 1,000-foot public lake frontage for private commercial use because þ[t]he ultimate control over the uses of public places is in the Legislature. ...þ); Johnson v. Town of Brookhaven, 230 A.D.2d 774, 775 (2d Dept. 1996) (lease to private cottage owners of parkland prohibited, despite claim þthat the revenue from the lease will finance eventual restoration of the public parklandþ).

In recent decades, when the legislature acts to alienate parkland it does so by providing metes and bounds or other clearly defined boundaries for what land is being alienated. For example, a review of statutes alienating parkland in 2001-2003 reveals twenty-nine statutes, all of which provided metes and bounds measurements to define what exactly was being alienated. The Amendment does not include such detail.

In Swan v. Doxsee, 136 A.D. 400, 406 (2d Dept.), aff'd, 198 N.Y. 605 (1910), the court found that the town was prohibited from alienating a small portion of a public dock for private commercial use, holding that, þSound public policy forbids that there should be any power to divert a part thereof to a private use, for, once such power being assumed, the dangers which may follow either from favoritism or ill-judgment may speedily hamper or practically destroy the fundamental purpose of the public use.þ In the instant case, RIOC's repeated actions to convert parkland to private housing demonstrate the soundness of that public policy.

Third, building 13-story housing towers on the 2.5 acres of land þsurroundingþ the landmark does not improve the use of that land as open space. To þsurroundþ means þto be on all sides of, to encircle.þ New Webster's Dictionary and Thesaurus (1992). The RIOC Octagon housing proposal surrounds the Octagon landmark with two housing towers which are also attached directly to the landmark building. Petitioners' Exhibit _____. Two 13-story towers and the private space between them abrogates the area immediately surrounding the landmark as open space, it does not improve it.

CONCLUSION

For all of the foregoing reasons, Petitioners' motion for a preliminary injunction enjoining Respondents' construction on open space parkland should be granted.

Dated: New York, New York

March 2, 2005

Respectfully submitted,

ELIOT SPITZER
Attorney General of the State of New York
Attorney for State of New York
New York State Department of Law
120 Broadway
New York, New York 10271
(212) 416-8461

By:

ROBERT EMMET HERNAN
GREGORY NOLAN
Assistant Attorneys General
Environmental Protection Bureau
PETER LEHNER
Bureau Chief
GORDON J. JOHNSON
Deputy Bureau Chief
Environmental Protection Bureau,
of Counsel