Gotham Gazette

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Parks

Parks

State Protections For City Parkland


Cities and towns are frequently tempted to use parkland for other public needs or commercial uses. Local governments are called on to widen roads, improve public transit or water systems, build schools and housing, and encourage economic development. Sometimes, a park is the most practical, or most expedient, site. Actions by municipalities may affect parks in other ways -- for example, through the draining of wetlands to build ball fields or the rerouting of traffic next to a park. State law in New York (and many other states), however, helps hold off potential park intrusions, as a number of recent and ongoing New York City park controversies illustrate.

The Public Trust

The major state safeguard for parks is known as the parkland, or public trust, doctrine, a widely accepted legal principle that parks are to be kept for the people. In New York, this doctrine is part of the common law, a body of law established through judicial decisions that recognizes rights that are generally agreed upon by society. New York State's common law is rooted in the centuries-old English common law brought here by the colonists.

The state courts have repeatedly ruled that if land has been dedicated as a park -- or, in some cases, used as a park consistently for many years to the point where it has been recognized as public space -- it cannot be "alienated," or taken for a non-park use, without the approval of the State Legislature.

This doctrine was invoked by the state Court of Appeals, the state's highest court, when it ruled that the city could not proceed with its plans to site a federally mandated water filtration plant in Van Cortlandt Park unless it got approval from the New York State Legislature. According to the city's plans, building the plant would have required closing the park's golf course and driving range for five years. The finished plant was to be partially underground, rising to a height of 30 feet at one end, with the driving range rebuilt on top. Residents of the adjacent neighborhood opposed the plan, as did the local state legislators, making legislative approval unlikely.

Public trust law also allowed Tribeca residents to sue to resurrect Canal Street Park, one of the city's first public parks. It was a small but elegant space first created by Ignatz Pilat and later remade by Samuel Parsons, both eminent landscape designers. The park fell into disrepair, and in 1929, without legislative approval, it was transferred to the state Department of Transportation and paved over to use during the construction of the West Side Highway. In recent years the city used it for parking garbage trucks. "This was one of those lawsuits that had a happy outcome," said Parks Commissioner Adrian Benepe. As part of its reconstruction of Route 9A, the state Department of Transportation agreed to build a new park. The design, by the department and the city parks department, is inspired by a combination of the two original versions, according to the commissioner, who said they hope to have construction under way by next spring.

In Staten Island, a controversy is brewing over the use of beaches for public transportation and commuter parking, a possible alienation of parkland. The city recently turned over a parking lot at South Beach to commuter parking during the week. The Staten Island Advance recently reported that the Port Authority is proposing to build a high-speed ferry pier and commuter park-and-ride lots somewhere on the beachfront, possibly Midland Park. Jim Scarcella, president of the Staten Island-based Natural Resources Protective Association, said, "If they're going to use our parks for purposes other than they've been intended, we're going to request they do the full act of the State Legislature that's required to do this."

Even when an alienation is approved, state law provides leverage to get something equivalent in exchange -- new parkland or park improvements -- as mitigation. The New York State Office of Parks, Recreation and Historic Preservation publishes a guidebook on the process, which can be requested by mail from the Counsel's Office, Empire State Plaza, Building 1, 19th Floor, Albany, NY 12238.

A proposal for the United Nations to erect an office building on Robert Moses Park, an asphalt yard and dog run on 42nd Street, would have to go through the alienation legislative process. The new tower would provide offices for the 5,000 people who now work in the Secretariat building while it is being renovated. Acknowledging the importance of keeping the United Nations headquarters in New York and allowing it to improve its facilities, Dave Lutz of the Neighborhood Open Space Coalition speculated about what the city might get in return for giving up the only park in that area: "For years, people have been looking for a greenway past the U.N.," he said. Parks Commissioner Benepe confirmed that an extension of the pedestrian promenade along the river near the United Nations is one option being discussed. "There is very little open space in that community," he said, "so it would have to be replaced on a square foot for square foot basis."

Environmental Protections -- Or Not

State environmental laws also can be applied to protect the integrity of parks and natural areas, though there are loopholes, and enforcement remains spotty. State law covers wetland areas over a minimum size, including those in parks, but only if the wetlands have been officially identified on agency maps, whose accuracy has been questioned. The State Environmental Quality Review Act (SEQRA) mandates a review of potential environmental impacts (the environmental impact statement, or EIS) for major land use changes. But projects are often allowed to proceed when the state accepts a preliminary "environmental assessment" concluding that no further review is needed.

A project also is not required to have an environmental impact statement if it is a replacement "in kind," noted Mark Caserta, Director of the Waterfront Park Coalition. He said that his group is concerned about the effects of the city's replacement of the bridges over the Harlem River. The work could shower lead paint on waterfront parks adjacent to the bridges, increase traffic and air pollution in the area, and use as staging areas sites earmarked to complete a greenway along the river. But, because no environmental impact statement is needed, the city will not have to mitigate the impact.

But the fact that environmental laws are on the books gives citizens and advocacy groups legal tools when fighting a project they believe would cause environmental harm. These laws have also had an advocate in Attorney General Eliot Spitzer. The Attorney General's office played a significant role in the Van Cortlandt Park case, and also sued to stop the city from selling or developing community gardens on city land.

In the community garden lawsuit, which was recently settled, the state based its case both on the State Environmental Quality Review Act and the public trust doctrine. Although the community gardens are not officially dedicated parks -- in fact, the city viewed them as quite the opposite, vacant lots temporarily growing tomatoes until a better use for them could be found -- the Attorney General's lawsuit argued that they had become parks by implication. "Some have been in existence for 20 to 25 years of continuous, uninterrupted use," said Assistant Attorney General Chris Amato. "They have large trees. They have benches. Some have amphitheaters. They have all the attributes of a public park, and are used that way by the community."

The lawsuit also maintained that developing the garden lots violated the environmental law because the city was proceeding to sell off or develop the lots without adequate environmental review or public input.

The final agreement released 38 gardens for the development of low-income and market-rate housing. These were the gardens that already had gone through the city's land review process. The largest number of gardens, 198, were offered transfer either to the New York City Parks department or one of the land trusts set up by two nonprofits that purchased more than a hundred threatened gardens several years ago. Gardens already under the jurisdiction of the Parks department, the Department of Education, and other non-developing agencies -- a total of 193 - will continue as community gardens. The remaining 114 gardens are subject to possible future sale or development, but only after a "garden review process" that is yet to be established. The city must offer an alternate site, which may or may not be feasible to the existing community gardeners.

As in the community garden issue, it can be a tough call whether a project is important enough to displace open space. Should senior housing, for example, take precedence? "Citizens take very seriously the value of the parkland at the end of their streets -- which is a double-edged sword, because sometimes there is a very good, rational reason to change the use of parkland," said Commissioner Benepe. "If there ever is a good, rational use for alienating parkland, we have to make sure we do our homework ahead of time, and make sure that substitute parkland is provided."

 


Sites For Beginners:

 

 

  • Neighborhood Open Space Coalition's Treebranch Network-- Among the areas covered by this longtime advocate for New York City open space are greenways, community gardens, parks, the waterfront, and Gateway National Park. Subscribe here free to the electronic version of Urban Outdoors Bulletin, an excellent source of news about parks and related issues.
  • NYC Department of Parks and Recreation-- It's easy to look up any park location, facility, program, or event at this site. You can also take a "virtual tour" (actually, more words than pictures) of several important parks in each borough, or design your own park by playing the NYC planner game. The "Daily Plant," circulated within the department, offers an inside look at park programs and events. Various park permits and applications, including a request for a street tree, can be printed and submitted through the site.
  • OASIS-- An interactive site that lets you view NYC land use maps or aerial photos by borough, neighborhood, community board, or zip code, then zoom in on details like parks, community gardens, or vacant lots and obtain zoning and ownership information. There are some inaccuracies, but users can help update the information.
  • Partnership for Parks-- A joint initiative of the City Parks Foundation and the NYC parks department. Under "What We Do," there is information about the Bronx River and other projects, citywide volunteer events, small grants programs, and many other efforts that help communities support and build constituencies for their parks.
  • Trust for Public Land-- This national open space group has increased its focus on urban areas in recent years. It has helped save community gardens and negotiated the purchase of several new state parks in the city recently. The site provides frequently updated information on the trust's projects and open space issues nationwide. Look under "Research Room" for urban land conservation and federal and state funding.
  • Urban Parks online -- An electronic toolbox for people working on city parks issues, from the Urban Parks Institute (part of the Project for Public Spaces, a NYC non-profit that aims to build community life through public spaces). The site brings together ideas from all over for creating, funding, and maintaining urban parks, and highlights park places and park news from around the country.

 

Anne Schwartz is a freelance writer specializing in environmental issues. Previously, she was the editor of the Audubon Activist, a news journal for environmental action published by the National Audubon Society, and an editor at The New York Botanical Garden.

 

Park Escapes


Just an inch of rain fell last month. The stock market tanked. Tax revenues are down and the budget is reeling. Power outages threaten. People can't bear to throw out their formerly recyclable glass and plastic.

At least there are still the parks.

For New Yorkers enduring the summer in the city -- by choice or not -- the parks are truly essential. They are both refuge and entertainment. Of course, the parks have had their share of bad news, too, with six percent less funding next year for maintenance and programs, and warnings of an additional reduction of 7.5 percent. This further shrinks a budget that was never restored from the last fiscal downturn. More funding cuts could deprive us of safe, clean and green parks just when we need them the most.

But for now, the parks still offer dozens of ways to escape the city's oppressive heat, noise, and smells without venturing on the Long Island Expressway. They also provide some of the best summer fun in town -- mostly for free. Here is just a sample of some of the things you can do in the dog days and nights of August.

Go fishing in the Harlem Meer, the lake at the northeast end of Central Park. Bamboo poles are available at the nearby Dana Discovery Center. (Fishing is also permitted at several other water bodies in the park.) Or take a history, design or ecology tour of the park run by the Central Park Conservancy.

Bring your little ones to a Forest Fairytales storytelling hour at High Rock Park in Staten Island on four days in August (718-667-7475). The City Parks Foundation also sponsors the Summer Fun recreation program for children at a number of parks and playgrounds (212-360-8290 for locations), as well as free tennis classes for kids.

You can almost imagine yourself in the country when you walk through the newly restored ravine in Brooklyn's Prospect Park. The ravine is open from 1 to 5 p.m. on weekends, with guided tours at 3 p.m. And at the park's new Audubon Center you can learn to bird watch on weekend mornings, or glide through the park's waterways in a canopied electric boat.

Learn about the outdoors -- even at night -- at one of the city's ten nature centers, run by the Urban Park Rangers. You don't have to leave the five boroughs to go hiking, birding, canoeing, or stargazing.

For serious cooling, there are the city's 14 beaches and 53 outdoor pools -- all free (for now, at least). Some pools have early morning and evening lap hours for adults.

Too hot to cook dinner? Can't bear returning to your stifling apartment after a day at work? Bring a blanket, invite some friends, and have a picnic in the park.

Stay for the entertainment. Something is going on at a park almost every night of the week. Movies are screened on Mondays in Bryant Park in Manhattan. Wednesdays at Union Square until August 21, there are readings from children's books from 5 to 6, and dance performances from 6 to 7. Learn ballroom dancing outdoors on Thursdays from 6 to 6:45 at the plaza of the Dana Nature Discovery Center in Central Park, and then dance to live music from 7 to 8:30. Or go to RockNRollerblade, a roller disco party with free skate rentals, a disc jockey, and roller dance performances, from 6:30 to 9:30 at a different park each Thursday in August. Jazzmobile's summer concert series brings jazz performers to Marcus Garvey Park in Harlem from 6 to 9 p.m. on Fridays. Bring a blanket and picnic and listen to music Sundays at 4 to 6 at the Harlem Meer Performance Festival in Central Park. And on several nights of the week at Forest Park in Queens, there is theater, dance, or music.

For more information on park events and facilities, check the web sites of: the Parks department, Central Park Conservancy, Bryant Park, the Staten Island Greenbelt Conservancy, and Prospect Park Alliance.

There are also events at the Hudson River Park and the various locations of Gateway National Recreation Area.

Anne Schwartz is a freelance writer specializing in environmental issues. Previously, she was the editor of the Audubon Activist, a news journal for environmental action published by the National Audubon Society, and an editor at The New York Botanical Garden.

State Funding For City Parks


New York City has the largest municipal park system in the country -- some 28,000 acres, including parks and playgrounds, as well as tennis courts, ballfields, beaches, pools, recreation centers, and natural areas. A city agency, the Department of Parks and Recreation, runs this green realm. The department even has jurisdiction over the stadiums and the botanical gardens, although it doesn't operate them. It would seem that the state has little to do with parks in the city.

But every borough has at least one state park or preserve, and the state has been adding to its city holdings in recent years. City funding for parks has shrunk over the last few decades; New York City spends just half a percent of its budget on parks, less per capita than most major cities in the country. At the same time, the state has taken on an increasingly important role in protecting natural areas and creating new parkland in the city. So how much money the state spends on open space and parks -- and where it chooses to spend it -- has a significant impact on the green space and recreation available to city residents.

Money for state purchases of open space, both for the city and upstate, has come mostly from two sources. The 1996 Clean Water/Clean Air Bond Act included about $150 million for open space and parks. That money has all been spent. The other source is the Environmental Protection Fund, a dedicated trust set up in 1993 that receives revenue from the state real estate transfer tax and is supposed to be spent only on environmental projects, including land acquisition and parks. The state has been appropriating about $125 million from the fund every year.

The New York City Environmental Justice Alliance analyzed how Bond Act and Environmental Protection Fund money was spent from 1996 to 2000 for all environmental programs, including open space. New York City received 23 percent of the funds available, even though the city has 40 percent of the state's population and contributes 44 percent of the revenue statewide from the real estate transfer tax.

ON-THE-GROUND RESULTS

Although the city receives a disproportionately small share of the state's open space money, state funding has been crucial in protecting some of the few remaining natural areas in the city as well as in acquiring land and creating parks along the waterfront. In some cases, the acquisitions have been added to the state's park system, operated by the Department of Parks, Recreation, and Historic Preservation, or become nature preserves under the aegis of the Department of Environmental Conservation. The ambitious new Hudson River and Brooklyn Bridge parks are being built by a trust or development corporation run jointly by the state and city. The city has also benefited from a smaller matching grants program in which nonprofits or municipalities apply for grants for land acquisition, park improvement and renovation, wetlands restoration and other park-related projects.

The lion's share of state money for New York City parks has gone to the two large waterfront parks now being developed. The state has committed half of the $300 million cost of building the Hudson River Park, with annual appropriations of around $15 million to $20 million. Governor Pataki and Mayor Michael Bloomberg recently signed a memorandum of understanding in which the state pledged $85 million and the city $65 million toward the creation of the Brooklyn Bridge Park. To avoid burdening the state and city with future maintenance costs, both parks include commercial developments -- 30 percent in the Hudson River Park, no more than 20 percent in the Brooklyn Bridge Park -- that are expected to cover their upkeep.

The state has also made smaller but significant land purchases. In late 1999, the state began the process of buying scenic Mount Loretto on Staten Island from the Archdiocese of New York for $25 million. One of the last remaining natural areas in the city, with woods, meadows, wetlands, and shore, it is now a state nature preserve. In August 2000, the state announced the purchase of two city blocks at the former Eastern District Terminal along the waterfront in Williamsburg. The land is to become a state park in a community that has had very little access to the water or open space. The purchase agreement (which, like Mt. Loretto and other acquisitions, was brokered by the Trust for Public Land), involves a partnership with New York University. The school is to develop and maintain athletic fields and a waterfront esplanade. The fields will be available to the community when not in use by the university. This July, the state acquired a tiny but key piece of land within Soundview Park along the Bronx River, where efforts are under way to create a greenway corridor.

SHORTCHANGING THE INNER CITY

State funding over the last decade will soon make a dramatic improvement in the lives of city residents who live near the new waterfront projects. But it has had far less impact on low-income minority neighborhoods -- the areas with the lowest ratios of open space per resident.

The state Open Space Plan, which guides the state's land purchases, has been criticized for neglecting the needs of urban areas. In the plan's most recent revision, urban open space advocates have made headway in increasing the priority of under-served areas, but the recommendations have yet to be realized.

There are several reasons for insufficient funding of New York City's open space needs. According to Dave Lutz, director of the Neighborhood Open Space Coalition, a New York city non-profit, there is a consensus in Albany, in cluding among New York City lawmakers, for protecting natural areas in the Adirondacks and the wilder areas of the state. But there is no such agreement about the importance of making green space available to city residents. "The upstate people need to begin to understand the needs of the people who live in New York City," said Lutz.

Another reason, according to John Stouffer, legislative director of the Atlantic chapter of the Sierra Club, is that the pot of money for all of the state's needs is too small. "In New York we are misers when it comes to spending on open space protection and parks," he said. Stouffer noted that New York state ranks dead last of all 50 states in total environmental spending, as a percentage of the state budget and per capita, according to U.S. Census data analyzed by the Institute for Southern Studies. New Jersey, a state roughly one-seventh the size of New York with less than half its population, provided $115 million this year for open space programs, including urban parks. New York plans to spend about $40 million.

Many environmental groups credit Governor Pataki with putting a priority on open space acquisition, and hundreds of thousands of acres have been protected during his years in office. Yet he has been very conservative fiscally, and has not always matched his rhetoric with funding.

Last year, the governor refused to approve the annual appropriation from the Environmental Protection Fund (even though there was plenty of money in the fund) because of a disagreement with the legislature about how to spend that money. In this year's budget (2002-2003), the governor and legislature agreed to appropriate $125 million per year for two years (which is less than the $135 million appropriated in 2000 and the $150 million originally proposed for last year). But Governor Pataki also orchestrated an agreement to "lend" $235 million that had accumulated in the environmental fund to the general fund to help balance the state's budget. That leaves the environmental fund with just over $100 million in cash to cover this year's $250 million in appropriations. Lawmakers acted on the assumption that the money would come in by the time the state needed it and promised to repay the "loan" if the fund ran short. However, there are no guarantees or deadline for repayment.

It is not at all clear how New York City will meet the needs of its under-served neighborhoods for open space and recreation, or even the cost of maintaining its existing parks equitably in all parts of the city. The state and the city are facing enormous revenue shortfalls. Creative legislative solutions on the state level are unlikely given the dysfunctional system in Albany.

A number of people involved in park and environmental issues have expressed the view that -- given he low priority of parks in the city budget and the limit on money available from the state -- funding will have to come from some sort of new city tax. The new tax would be dedicated solely to the purchase and upkeep of parks.

All over the country, voters have been approving such proposals, including sales and property tax surcharges. According to Christopher Wells, director of the conservation finance program for the Trust for Public Land's Mid-Atlantic region, 90 percent of such ballot proposals have passed. A number of New York State counties and several municipalities have dedicated property tax surcharges to parks or raised money specifically for parks through bond issues. Here again, however, Albany has a role. If New York City were to propose a tax dedicated to the support of parks, the state would have to approve it.

Anne Schwartz is a freelance writer specializing in environmental issues. Previously, she was the editor of the Audubon Activist, a news journal for environmental action published by the National Audubon Society, and an editor at The New York Botanical Garden.



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