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City Parkland: Invalid Lease or Permissible License?
When may a New York municipality authorize commercial use of parkland without express authorization of the state legislature? That question recently reached the Court of Appeals in Union Square Park Community Coalition v. New York City Department of Parks and Recreation (NYLJ 2/21/14), in which the court upheld an agreement between the city and a private party authorizing the latter to operate a seasonal restaurant in Union Square Park. In upholding the agreement, the court had to grapple with two limitations on municipal control of public parkland: the public trust doctrine and the prohibition on alienation of parkland without the permission of the state legislature.
The Public Trust Doctrine
Suppose a municipality itself decides to operate a restaurant in a public park. Although the municipality has not made any transfer of parkland, the mere use of parkland for a non-park purpose can constitute a violation of the public trust doctrine. Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, is illustrative. Pressed by the federal Environmental Protection Agency (EPA), New York City set out to design and build a water filtration plant. The city's preferred location was the Mosholu Golf Course in Van Cortlandt Park. The design would restore the golf course and other park uses once the city completed the underground plant, but construction would close 29 acres of parkland, including the golf course, for more than five years. The State of New York, concerned citizens, and community groups sought to enjoin development of the plant on the ground that the public trust doctrine would prohibit construction without approval from the state legislature. The Court of Appeals agreed, holding that because park area are impressed with a public trust, use of parkland for other than park purposes, either for a period of years or permanently, requires state legislative approval.
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