DEP Environmental Protection Invoices, 1999-2001

NYC 9/11 Public Portal Document

NYC Environmental Law Fax:212-788-1619 Dec 27 2000 16:46 P.08

approval of the State Legislature, plainly conferred. Ackerman v. Steisel, 104 A.D:2d 940, 480 N.Y.S.2d 556

(2d Dep't 1984), affirmed, 66 N.Y.2d 833, 498 N.Y.S.2d 364 (1985). This common law doctrine against

alienation of parkland (the "Public Trust Doctrine"), however, has never been extended to include a

prohibition on using land underneath parks for non-park public works purposes.

A. The Common Law Doctrine Against Alienation Of Parkland Does Not Apply To Lands Beneath the Surface of a Park

The fact patterns of cases construing the Public Trust Doctrine have consistently involved the surface

area of lands dedicated to park purposes. See, Williams v. Gallatin..229N.Y. 248, 128 N.E. 121 (1920)

(Lease of building located in park); Miller v. City of New York. 15 N.Y.2d 34, 235 N.Y.S.2d 78 (1964)

(Lease of park property for golf driving range); 795 Fifth Ave. Corn v. City of New York, 15 N.Y.2d 221,

257 N.Y.S.2d 921 (1965) (Construction of cafe and restaurant on park property); Ackerman v. Steisel, 66

N.Y.2d 833, 498 N.Y.S.2d 364 (1985) (Use of park property for parking and storage of municipal vehicles);

Stenhenson v. County of More, 43 A.D.2d 897, 351 N.Y.S.2d 232 (4th Dep't 1974) (Use of park properly

as landfill for future conversion to ski slope); In re Central Parkway, 140 Misc. 727, 251 N.Y.S. 577 (Sup.

Ct., Schenectady Cty. 1931) (detachment of land from park for use as highway). Indeed, even the specific

words utilized by various courts have limited the issue to matters solely pertaining to impacts or intrusions

upon the surface area of a park. See, Williams, 229 N.Y. at 253 (No objects without park purposes should be

permitted to encroach upon parklands) (emphasis supplied); Ackerman 104 A.D.2d at 941 ( Temporary

encroachments upon parkland not exempt from the Public Trust Doctrine) (emphasis supplied). Because the

Public Trust Doctrine does not extend to include areas beneath the surface of a park, municipal use of such

subterranean areas for installation of public works facilities cannot be construed to require approval from the

State Legislature. In fact, the District Court below stated that:

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