Restaurants, stores, and a 200-room hotel would go up on the Willets Point side of 126th Street, just east of Citi Field, though the city does not entirely own the property. The proposed shopping mall west of the stadium may face a larger hurdle: The parking lot is part of Flushing Meadows Corona Park. State law requires the alienation of parkland before it can be used for non-park purposes.To meet that requirement, Bloomberg has reached back to a law passed 51 years ago, summoning an uncertain ally in the ghost of Robert Moses. But questions surround this curious piece of legislation, setting up the latest in a string of disputes over city-sponsored developments on public parkland.
"Yes, this area is parkland," says Benjamin Branham, a spokesman for the city's Economic Development Corporation, "but development is permitted under the 1961 law that authorized the construction of Shea Stadium—known asAdministrative Code 18-118—which also allowed for additional uses to be built on the parking lot. It's important to be clear the authorization comes from this law as opposed to a contract or other agreement of some kind."
Yet, as recently as 2001, New York's highest court ruled parkland can't be taken, even for temporary use, without an explicit act of alienation passed by the state Legislature and approved by the Governor: "[O]ur courts have time and again reaffirmed the principle that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes."
The court's 2001 decision forced the city to seek approval from the state Legislature before building the Croton Water Treatment Plant in Van Cortlandt Park, and as compensation for the use of public parkland, the Bloomberg administration earmarked $240 million for park improvements throughout the Bronx. In 2005 the state Legislature alienated 25.3 acres of Macombs Dam and Mullaly parks before the building of the new Yankee Stadium, and as part of that legislation, the city was required to replace the lost parkland. Currently, the Bloomberg administration plans to ask the state Legislature to alienate 0.76 acres of Flushing Meadows Corona Park before expanding the USTA National Tennis Center, just across Roosevelt Avenue from the Citi Field site.
A power broker's pet project
In his announcement of the shopping mall at Citi Field, Bloomberg recalled the area had been described as "a valley of ashes" in F. Scott Fitzgerald's The Great Gatsby. Focusing on the pending private development, the mayor made no mention of the millions in federal, state, and local government dollars Robert Moses had marshaled to turn the Corona Ash Dumps into the site of the 1939 World's Fair. In plotting to leave behind a great park, Moses had quoted a biblical source: Isaiah’s “Give unto them beauty for ashes.”
Flushing Meadows—New York's second-largest park—was Moses' pet project. Before the building of Shea Stadium, Moses was preparing for another World's Fair at Flushing Meadows, though he ultimately viewed both Fairs as a means to build his legacy park. He even had a hand in crafting legislation that set aside Fair proceeds for Flushing Meadows. "I don't think RM really ever cared about the Fair," one aide told author Robert Caro. "What he cared about—what he was always talking about—was what the Fair could do for parks."
In 1960 Moses gave up his longtime title of Parks Commissioner, but his replacement, Newbold Morris, was selected for his "utter subservience" to Moses, according to Caro, who wrote, "Morris was Park Commissioner only in name. Robert Moses was still running the Department exactly as he had run it before—as anyone having much business with the Department soon found out."
Moses presided over the 1961 groundbreaking for Shea Stadium. He had originally offered to build the municipal arena in Flushing Meadows for the Brooklyn Dodgers and resurrected the plan when the city pushed for a new National League franchise.
The state Legislature approved his building of Shea Stadium in the park, but its 1961 legislation was primarily aimed at granting the city authority to issue bonds to finance construction. It loosely laid out the permitted uses for the stadium and grounds, listing "recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce." The law even allowed the city to use the site for "any business or commercial purpose," so long as this activity "aids in the financing of the construction and operation of [the] stadium, grounds, parking areas and facilities" and "does not interfere with the accomplishment of the purposes referred to" above.
"The bill reads like a Robert Moses special," says Geoffrey Croft of the watchdog group NYC Park Advocates. The broad powers it conferred were a hallmark of the Power Broker, who was so well-practiced in the black art of political legislating that Al Smith once called him "the best bill-drafter I know." The Parks Commissioner could enter into agreements to use part or all of the stadium grounds, but any agreements lasting for more than a year had to be approved by the Board of Estimate, which included the mayor, the comptroller, the City Council president, and all of the borough presidents.
In 1989, the U.S. Supreme Court found the Board of Estimate unconstitutional, because it violated the “one man, one vote” rule—for example, the borough president of Brooklyn (the city’s most populous county) had no more power than the borough president of Staten Island (the least populous county). With the elimination of the Board of Estimate, the city's Law Department says, the power of site approval under the 1961 Shea Stadium law now rests solely with the mayor. A shopping mall may not offer the "enlightenment" referenced in the text, but a Bloomberg administration spokesperson describes the new project as a "retail/entertainment complex" benefiting “trade and commerce.”
A dispute over uses
The city cites the law in apparently contradictory ways. On one hand, it argues the 1961 legislation authorizes alienation of the parkland, thereby dismissing all of the public’s claims to the land or for compensation. But the law never mentions alienation. Indeed, it describes the land as "being a part of Flushing Meadow park."
When asked about that omission, the city responds with a different interpretation: The law authorizes the placement of a shopping mall on the land, which, the city responded, would still be in the park. The city denied requests to speak directly to its lawyers about the shopping mall project, but Seth Pinsky, president of the city’s Economic Development Corporation, recently assured the Queens Chronicle, "We are confident it’s legal.” Parkland alienation legislation must be explicit, according to state Assembly guidelines. Alienation bills should specify the number of acres and require that land be sold at fair market value, "with proceeds from the sale dedicated for the purchase of replacement parkland of equal or greater fair market value or for capital improvement of existing parkland." The 2005 legislation that alienated Macombs Dam and Mullaly parks gave away the use of public land for free to the developers of the new Yankee Stadium—a similar transaction to this proposed shopping-mall deal at Citi Field—but it detailed the specific acreage and described the project at length. It also stipulated that the city assemble new parkland and recreational facilities "of equal or greater value than the fair market value of the parkland being alienated."
While the 1961 Shea Stadium law defined the permitted uses of the land as "public purposes," courts have ruled a public purpose is not good enough for the use of parkland—it needs to have a park purpose. The state's Handbook on the Alienation and Conversion of Municipal Parkland makes clear that alienation is required whenever parkland is used "for a non-park purpose even though the use may be public in nature," citing the example of a museum. "The water treatment plant in Van Cortlandt Park certainly had a public purpose, but the park still had to be alienated," notes environmental attorney Michael Gerrard, who has represented business owners on Willets Point. After his first look at the 1961 law, Gerrard was willing to say it might allow for the shopping mall on the stadium lot, "but the way I read it is, this would have to be a city-built and -owned project," just like Shea Stadium, not one run by private developers. The legislation is not clear, says lawyer Reed Super, an expert on parkland alienation who is not involved in the Willets Point case. It may allow the city to use this parkland for the listed non-park purposes. "Whether the mall they are now planning fits within those purposes is another question,” Super explains. "Someone could challenge the current plan to put a shopping mall there."
Croft says his group is considering a lawsuit: "Bloomberg and [Related Companies'] Steven Ross won't be shopping at that mall unless the state and City Council say so. Clearly the law's intention was not to alienate the parkland, because no restitution was provided, which is required under state law. You can alienate parkland, but you have to replace it."
Another attorney for Willets Point property owners agrees. The 1961 law “authorizes the Parks Commissioner to enter into a lease transaction with the owners of the Mets,” says lawyer Michael Rikon, “but it has nothing to do with the new plan. The law is very clear on this—they can't use parkland for a retail mall unless they obtain specific approval from the state Legislature and agree to provide some kind of compensation for taking it.”
