NYC 9/11 Public Portal Document
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sewer facilities and public utility lines.
do not serve just the parkland above, including water tunnels,
have becnbuilt or maintained without temporary
Nor is it disputed that many of these projects could not
New York State law relating to alienation
disruption of the park surface for construction and upkeep.3
these projects had in fact been approved
50n oral argument, questions arose as to whether
past practices. I afforded the parties an
by the State Legislature and as to the significance of
directed to this issue. The AG and the
opportunity to submit supplemental affidavits and briefs
been obtained for infrastructure
private plaintiffs argue that State legislative approval has often
were not authorized by State
projects, and the AG argues further that, even if some projects compliance with legal
legislation, these instances do not estop the State from enforcing
examples where the State Legislature
requirements. Their supplemental submissions cite many
easements in parkland for such projects,
enacted legislation authorizing conveyance of parkland or
comparable to the WTP project. Notably, the
but these examples involve circumstances that are not
the private plaintiffs involve in
examples of State legislative approval furnished by the AG and entity to either a
front a government
most instances the conveyance of interests in parkland
a.sewer district) or to private
different gove nment entity (e.g., from a town to a county or to
example cited by the AG is L. 1980, c.
entities, which is classic alienation of parkland. A typical
permanent easement on parkland to Westchester
390, authorizing the City of Peekskill to convey a
do not establish that State
County for construction and maintenance of a sewer. Such examples
a separate government entity.
legislative approval is required where no interest is conveyed to
parkland from one government entity to
Indeed, the Legislature also approves the conveyance of
conveyance of parkland to the County
another for its continued use as parkland, as with Peekskill's
enactnt:nt of the law relied upon by the AG.
in a law, L. 1980, c. 389, immediately preceding or a portion of the surface
Other instances cited entail discontinuance of the use of parkland
surface to its use as parkland. See L. 1988, C.
of it, unlike Isere, where the City will fully restore the
operate an underground water pipeline and
371 (authorizing Town of Greenburgh to construct and
West 72"d Street subway station;
at-grade pumping station); L. 1998, c. 497 (expansion of Authority); L. 1980, c. 396
authorizes conveyance of City parkland to Metropolitan Transportation
development of natural gas fields on
(City of Dunkirk authorized to engage in exploration and
construction of rail and subway lines
parkland). The parties' references to certain laws authorizing
privately owned when the 1875 and 1891
are unhelpful. The railroad and subway companies were
expressly prohibited use of parkland for railway
laws cited by the AG were enacted. The 1875 law,
railway commissioners to permit use of
routes, L. 1875, c.606, § 4, and limited the authority of the
laws modified this prohibition in
parkland to facilitate construction. Id. § 26, Q5. Subsequent
and certain stations under parkland, L.
limited respects so as to allow construction of subway lines
interests in parkland. L. 1909, c. 558.
1891, c. 4, § 4, or to allow a railway line to use or acquire
parkland for railway projects. See N.Y.
Later State legislation eased restrictions on use of City
imposes similar prohibitions or
Rapid Transit L. § 50 (f). No State statute cited by the parties
projects, and the WTP will not be
restrictions on the use of land underneath parks for water supply
privately owned.
is more striking for the
The compilation of statutes by the AG and the private plaintiffs
parkland in New York City for
paucity of State legislation relating either to underground use of
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