Some two years ago, on May 9, 2019, I wrote about the Public Trust Doctrine in this blog. I reported the Court of Appeals’ decision in Matter of Glick v Harvey, 25 NY3d 1175 (2015) where the Court affirmed decisions of lower courts enjoining New York University from beginning any construction with its expansion project that would result in any alienation of three parcels of land found by the Court to be public parkland, unless and until the State Legislature authorizes the alienation of any parkland to be impacted by the project.
On November 30, 2021, the First Department handed down 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 development of the East Side Coastal Resiliency Project.
East River Park is described as a combination of parkland and landfill immediately adjacent to the East River. As a result of Superstorm Sandy in October 2012, the park was flooded and damaged.
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 Parka, 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.’”
We think this holding is clearly incorrect and violates the Rule set by the Court of Appeals in Friends of Van Cortlandt Park v City of New York, 95 NY2d 623 (2001). Clearly using the land for a flood protection structure is just the same as building a water filtration system as in Van Cortlandt Park with a park above. The case should be further appealed.