By Dara Illowsky, New York staff attorney, Save the Sound
By Dara Illowsky, New York staff attorney, Save the Sound
This is the first of a two-part blog series on parkland alienation, a process by which public parkland can be sold or leased for use as something other than a public park. Save the Sound will be opposing parkland alienation legislation recently introduced in the NY state legislature involving private companies seeking to alienate New York City public parkland to secure one of three downstate casino licenses before the end of 2025. Both casino bids—by New York Mets owner Steve Cohen and Seminole Hard Rock Entertainment in Queens and by the Bally’s Corporation at Ferry Point Park in the Bronx—depend on the passage of parkland alienation legislation and are located by Long Island Sound. Large-scale developments—particularly those with a big roof and bigger parking lots—increase impermeable surfaces, which means more pollutant-laden stormwater running off the surfaces and into our waterways and the Sound.
Part one explains what parkland alienation is and some of the key policies governing it; part two shares how the public can get involved.
On March 14, two-and-a-half months into her first term in the New York State Assembly, Assemblywoman Larinda Hooks introduced A6781A. Its purpose is clear—the bill “authorizes the city of New York to discontinue the use as parkland and alienate certain land within Flushing Meadows Corona Park”— even if its language isn’t.
Within a couple of weeks, State Senator John Liu introduced a companion bill (S7121). At the same time, State Senator Nathalia Fernandez and Assemblyman Michael Benedetto introduced very similar bills (S7049A/A7514A) calling for the discontinuation as parkland and alienation of at least 15.73 waterfront acres in Ferry Point Park in the Bronx.
“Discontinued” and “alienated.” What, exactly, does that mean?
Let’s start with the basics.
Access to green outdoor spaces is essential to human health and quality of life. The protection and maintenance of public parks is a key function of government at all levels, particularly in urbanized areas where green space can be rare and precious. To serve this function, municipal governments across New York have a duty to hold public land “in trust” for the benefit of the people.
This duty is imposed under a legal concept called “the public trust doctrine,” which broadly states that governments must preserve certain natural and cultural resources for public benefit. New York’s courts have applied this to municipal parkland since the late 1800s. The public trust doctrine restricts the ability of municipalities to convey, sell, or change the use of parkland to non-park uses, but it is not strictly forbidden. With specific legislative approval through a process called “parkland alienation,” these public parks can be sold to private parties or converted to non-park uses.
There is no one piece of legislation that captures the parkland alienation process. Rather, it has developed over many years through New York State policies and court decisions. Two key New York statutes that do briefly address parkland alienation include: the General City Law, which states that municipal parks are “inalienable;” and the Parks, Recreation and Historic Preservation Law, which states that lands acquired with certain state funds cannot be alienated “without the express authority of an act of the legislature.” This second law cracks a door open for parklands to lose their public park designations and protections
To understand why Save the Sound might oppose the alienation of parkland, it’s important to understand what the alienation process entails.
What is parkland alienation?
The first question is what constitutes “parkland.” While the answer may be obvious where land has been formally and officially dedicated as parkland, parkland alienation may be required for “implied” parkland as well where the municipality’s actions or declarations unmistakably demonstrate an intent to dedicate the land as parkland, such as by acquiring it for “recreational purposes.”
The most basic example of “alienation” is a sale: if a municipality wants to sell parkland, it must get legislative approval. But parkland alienation also includes changing a park’s use to a non-park use, even if the park is not changing ownership.
For example, if the municipality wants to build a museum on the parkland or construct a wastewater treatment plant, the state legislature must pass a bill allowing that use within the park, then the Governor must approve the bill. A parkland alienation bill is also required if the municipality wants to restrict public access to a previously generally accessible park.
New York courts have also required parkland alienation legislation for temporary non-park uses of parkland, such as the use of a public park for parking police vehicles when construction on their normal parking garage had been ongoing for nearly two years.
Another example involved the construction of a water treatment plant under Van Cortlandt Park in the Bronx. While the plant would be underground, and the parkland would ultimately be restored for park uses, the construction was expected to take at least five years and would cause permanent and significant changes to the park’s gradient and landscape. The Court concluded that such a “substantial intrusion” on parkland requires legislative approval through the parkland alienation process.
Note, however, that courts treat such temporary non-park uses as distinct from incidental uses for which municipalities may issue revocable licenses for a park purpose (i.e. operation of a snack bar) which do not require parkland alienation. Similarly, a municipality may be able to issue leases for public parkland without alienation legislation depending on how incompatible the lease is with continued public use of the park and whether the purpose of the lease benefits the public.
For example, Bally’s Corporation currently operates a golf course on public parkland in Ferry Point Park—you pass it when crossing over the Whitestone Bridge from Queens—under a revocable concession license, which did not require parkland alienation. But parkland alienation was required for the construction and operation of a golf driving range on other public parkland because the lease did not allow the municipality to revoke it at will.
An additional wrinkle comes in around funding. If a municipal park has received state funding, the funding contract might impose restrictions that affect how the municipality proceeds through the alienation process. And if a municipal park has received federal funding, the municipality may need to proceed first through the parkland conversion process, which requires amending the original project agreement and associated maps following extensive review by both State Parks and the National Park Service.
In sum, aside from the sale of formally dedicated parkland, whether an action constitutes “parkland alienation” is a legal question typically decided on a case-by-case basis.
What is NYS’s parkland alienation process?
The parkland alienation process is most cohesively outlined in the New York State Office of Parks, Recreation, and Historic Preservation Handbook on the Alienation and Conversion of Municipal Parkland. As explained in the Handbook, once it has been determined that parkland alienation is required, the municipality must identify legislators to sponsor, draft, and introduce the parkland alienation bill in both the NYS Senate and the Assembly. While this responsibility is customarily reserved for the local representatives for the municipality’s district, there is no strict rule requiring this, and in theory any state legislator can introduce the bill.
That is what happened in Queens. AM Hooks represents District 35, home to Citi Field and the piece of parkland up for alienation, which the City currently leases to Citifield for event parking. Sen. Liu represents District 16 in northeast Queens. A portion of Flushing Meadows Corona Park is in his district, but the parcel at issue is not. It’s in District 13, whose representative, Senator Jessica Ramos, refused to introduce alienation legislation last session and has expressed that she will not support it this session either. That’s not insignificant; bills might be less likely to pass if they are introduced by someone other than the legislator in whose district the parkland sits. Some elected officials might not enjoy the perception that one colleague is dictating what another should do with land in their home district.
There are very few strict requirements for what must be included in a parkland alienation bill. Providing for substitute parkland is strongly encouraged to support State Parks’ “no net loss of parkland” policy. But substitute parkland is only required if the parkland to be alienated received state or federal funding under certain grant programs.
In pursuit of the “no net loss” goal, the parkland alienation bill should specifically identify both the land to be alienated and the substitute land using metes and bounds descriptions. If this is not possible at the time the bill is introduced, where substitute parkland is strictly required, the bill should (but is not required to) include a provision that delays the legislation’s effective date until after adequate substitute land has been identified. Where substitute land is not strictly required, identification of substitute land is still preferred.
Save the Sound attended a public hearing for Community Board 10 in the Throggs Neck neighborhood of the Bronx earlier this year, and a public hearing before Bronx Borough President Vanessa L. Gibson just last week, to express concerns with the Environmental Impact Statement submitted by the Bally’s Corporation. One of those concerns was that the substitute parkland—essentially, the piece of parkland the community would receive in exchange for what it would lose in Ferry Point Park—was not specified.
State Parks, it bears repeating, strongly encourages replacement of alienated parkland in accord with its “no net loss of parkland” policy. But the Handbook acknowledges that “in rare instances there may be valid reasons to alienate parkland when the substitution of other land is not possible or appropriate,” and is not mandatory under state or federal grant programs. In these cases, the next most preferable outcome would be for the bill to provide that the net proceeds from the sale of the parkland be used for the purchase of additional parkland if it can be found. Only if this is also not possible should the bill resort to providing for proceeds from the sale to be used for capital improvements to existing municipal park facilities.
Before the state legislature can consider the parkland alienation bill, the proposal to alienate municipal parkland must go through a review under the State Environmental Quality Review Act (SEQRA) and City Environmental Quality Review (CEQR). The review must consider the proposal’s potential significant adverse environmental impacts, potential alternatives, and methods to minimize or mitigate adverse environmental impacts. A primary purpose of SEQRA is to ensure that relevant decision makers and the public consider and understand the environmental consequences of municipal or state actions, so the process and its opportunities for public involvement are an important inflection point for parkland alienation. SEQRA review should begin as early as possible in the decision-making process so that all parties, including the public, are well-informed by the time the proposal comes to any vote.
At the time of writing, Queens Future has completed the SEQRA/CEQR process, but Save the Sound is preparing to continue sharing our concerns about the Bally’s casino and hotel complex proposal during the oral hearing and written comment period to be held on April 23 and until May 5, respectively.
Part Two of the series, which explains how the public can help protect parkland, will be posted next week.
*Edited for clarity and to update to the correct date for the comment period deadline