DEP Environmental Protection Invoices, 1999-2001

NYC 9/11 Public Portal Document

built through its authorized spokesperson. the AG), approves of the project and believes it should be

at the site chosen by the City. See pp. 7-3 supra. And the State, as a party to the prior litigation and

the Consent Decree, sought and obtained the City's commitment to co;tstruction.of the WTP as

necessary to ensure the safety of The Croton water supply. See also Welter v. Moses. B6 N.Y.S.2d 110

(Sup. Ct., N.Y. Co. 1941),gfdwirhoui opinion, 265 A.D. 993 (1" Dep't), app. dismissed, 290 N.Y.

761 (1943) (upholding the general authority of the Perks Commissioner to close a public park during

construction of a vital municipal project).

In this case, as in Wigand, no alienation of parkland will occur, in either sense in which the

term has been used in New York cases that protect parkland. The land will remain in the City's

ownership, possession and control during and after construction, so there will be no transfer of an

interest in land to another entity. And, since there will be no diminution of parkland available for

public use after the plant is built, underground use of the parkland is not an alienation in the sense of

diversion of parkland for non-park purposes.

No other authority of which the court is aware requires State legislative approval for an

underground project to meet essential municipal needs under circumstances comparable to those

presented here. State decisions which disallowed the use of parkland for non-park purposes, or

"temporary" alienation of parkland without State legislative approval, many of which relied upon an

interpretation of New York General City Law §§ 20(2) end 20(7) that sharply restricted municipal

home rule, as well as upon the common law prohibition of alienation of parkland, arose in entirely ofparkland different contexts.' In each of these cases, the challenged action involved either a transfer

'Given my conclusion that construction and operation of the WTP will not constitute alienation of parkland within the meaning of established State law, I do not address the current vitality of cases that have construed General City Law §§ 20(2) and 20(7) to deprive municipalities of the power to discontinue parkland without approval of the State Legislature. It also is 14

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