DEP Biweekly Reports Folder 0049, 2000-2001

NYC 9/11 Public Portal Document

7 Croton Filtration Plant Litigation - Alienation of Parkland On November 15, 2000, a significant development occurred in the Croton Filtration Plant litigation. As you may recall, several community groups filed lawsuits against the City in State Supreme Court, claiming that construction of the Croton filtration plant at the Mosholu Golf Course amounted to alienation of parkland, requiring approval from the State legislature. The City successfully had these lawsuits transferred to the U.S. District Court for the Eastern District of New York, which has jurisdiction over the Croton Consent Decree. In a very strong opinion issued in May 2000, the U.S. District Judge (Nina Gershon) ruled in favor of the City, holding that construction of the filtration plant at the Mosholu Golf Course site, in the manner proposed by the City, did not constitute alienation of parkland. The plaintiffs then appealed to the U.S. Court of Appeals for the Second Circuit (Second Circuit). The plaintiffs also made a motion to have the question of alienation of parkland (essentially a state law issue) referred to the New York Court of Appeals for decision, which would then guide the federal court's deliberations. The Second Circuit court did nothing with the motion, and all of the parties concentrated on briefing the appeal and getting ready for oral argument, which was scheduled for December 8. Much to our surprise and without any warning, the Second Circuit issued an opinion on November 15, effectively granting the motion made by the community groups to refer the question of wether the project amounted to alienation of parkland (thus requiring State legislative approval) to the New York Court of Appeals. The Second Circuit panel felt that state law on this point was unclear, and made note of the fact that the State (more precisely, the State Attorney General's Office) and the City are on opposite sides of the issue, which highlighted (in the panel's mind) the importance of seeking guidance from the New York Court of Appeals. The Second Circuit went on to stress the importance of a prompt resolution of the issue, because the milestones for obtaining State legislative approval (if necessary), under the Croton Consent Decree, have already passed (thereby potentially exposing the City to significant financial penalties). The panel then took the very unusual step of certifying the question of whether the project amounted to alienation to the New York Court of Appeals, but with a proviso that the certification would be withdrawn unless the Court of Appeals indicated that it would reasonably expect to decide the matter within 90 days after accepting the certification request. It also invited the Court of Appeals to contact the Second Circuit panel, "formally or informally", if the latter Court felt that a different procedure was called for. We have been advised by the Law Department that the New York Court of Appeals has decided to accept the question referred to it by the Second Circuit. It is our view (and that of the Law Department) that state law on the issue of alienation is clear, and that Judge Gershon's decision is correct. We will therefore strongly urge the New York Court of Appeals to endorse Judge Gershon's decision by confirming that the project does not amount to alienation of parkland. We are also exploring whether, and in what form, it makes sense to invite other New York State municipalities (through the Association of Towns and other like organizations), to support the City's position through the filing of amicus briefs. An adverse decision in this case could (in addition to seriously impacting the Croton filtration project), affect dozens of municipal projects across the state that require construction under parks.

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