Matter of Raritan Baykeeper Inc. v City of New York

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[*1] Matter of Raritan Baykeeper Inc. v City of New York 2013 NY Slip Op 52258(U) Decided on December 20, 2013 Supreme Court, Kings County Graham, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 20, 2013
Supreme Court, Kings County

In the matter of the Application of Raritan Baykeeper, Inc. d/b/a NEW YORK/NEW JERSEY BAYKEEPER, CUYLER YOUNG and SEBASTIAN DE JESUS, Petitioner(s) For a Judgment pursuant to Section 3001 of the Civil Practice Law and Rules,




Bernard J. Graham, J.

Petitioners in this case are Raritan Baykeeper, Inc., d/b/a New York/New Jersey Baykeeper, Cuyler Young and Sebastian De Jesus ("Raritan Baykeeper" or "Petitioners"). Petitioners have brought a motion for summary judgment pursuant to CPLR sections 3212 and 3001.

Respondents in this case are the City of New York, the New York City Department of Sanitation and the New York City Department of Parks & Recreation (hereinafter referred to as the "Municipal Respondents"). The Municipal Respondents have filed a cross-motion for dismissal of the Raritan Baykeeper Petition.

As for the relief sought by Raritan Baykeeper, the Petitioners have brought a hybrid motion. Petitioners seek a declaratory judgment against the Municipal Respondents related to an alleged violation of the "Public Trust Doctrine" and Petitioners additionally seek injunctive relief and a consolidation of the instant case with a pending matter.

The subject of these motions are the solid waste management facility referred to as the Spring Creek Park Composting Facility ("Spring Creek Facility" or "Facility") for which a permit has been issued for operation by the New York State Department of Environmental Conservation ("DEC").

In the summary judgment motion brought by Raritan Baykeeper, the Petitioners seek an order of this Court against the Municipal Respondents, inter alia, declaring: (1) that the actions of the Municipal Respondents are contrary to law; (2) enjoining the Municipal Respondents to immediately cease all activities associated with the operation of the Spring Creek Park Composting Facility; and (3) ordering Respondents to remove all berms and other fences which prohibit access of the public to Spring Creek Park.

Raritan Baykeeper seeks to consolidate the instant matter with a pending Article 78 [*2]proceeding (Raritan Baykeeper, Inc. d/b/a NY/NJ Baykeeper v. Joe Martens, et al. (Supreme Court, Kings County, Index No. 21409/12) alleging that there is a common question of law and fact related to the issuance of a solid waste disposal permit by the New York State Department of Environmental Conservation for the Spring Creek Facility. The motion to consolidate is opposed by the DEC and the Municipal Respondents.

For the reasons set forth below, this Court finds that Raritan Baykeeper is entitled to summary judgment against the Municipal Respondents and declaring that the use of the Spring Creek Facility violates the Public Trust Doctrine. The Court also finds that the appropriate relief is a preliminary injunction to cease operation of the Facility unless and until the Facility has obtained the approval of the State Legislature for use as a composting facility.

As to the motion for consolidation, the Court denies the motion to consolidate, as the Court finds that there is not a commonality of issues presented on the two separate matters.


Spring Creek Park is a municipal park located in the Old Mill Creek/New Lots section of Brooklyn, New York. The Spring Creek Facility is located on approximately 20 acres of Spring Creek Park and is referred to by the street address 1270-B Flatlands Avenue, Brooklyn, New York. The Spring Creek Park is located at the Northern Jamaica Bay and is primarily undeveloped land and includes salt marshes. The petitioners allege that the Park is environmentally significant as the salt marshes are alleged to act as a natural filtration system which prevents pollution from contaminating Jamaica Bay (see Aff. of Deborah A. Mans annexed to the Motion for Summary Judgment, Ex. "4").

Beginning in 2001, the Spring Creek Facility was constructed and operated pursuant to a Memorandum of Understanding ("MOU") entered into on August 27, 2001 between the New York City Parks Commissioner and the Commissioner of the Department of Sanitation. The Department of Sanitation ("DSNY") applied to the DEC for a permit to operate a solid waste facility in October, 2001 under Title 6, NYCRR Part 360 to compost 15,000 tons of organic waste consisting of leaves, manure, branches and stumps. The permit application met with opposition by Raritan Baykeeper and others from the adjacent community.

The issue of alienation of parkland was brought up by the DEC staff as a potential substantive issue and several procedural steps were taken before the application was deemed complete by DEC.

The matter was deemed to have a significant degree of public interest and it was decided that a public hearing be held. The matter was referred to the DEC Office of Hearings and [*3]Mediation Services on January 7, 2004 and assigned to Administrative Law Judge Susan DuBois.

On August 30, 2004, ALJ DuBois issued a ruling in which, among other findings, determined that "the State Legislature, not DEC, the Applicant, or Parks, would have authority to authorize alienation of parkland in Spring Creek Park". In effect, Judge DuBois held that legislative approval was needed for the proposed use of Spring Creek park as a solid waste facility. ALJ DuBois called for further revisions to be made to the permit application and determined in a supplemental ruling in February 8, 2005, that parkland alienation was a subject for adjudication.

DEC and DSNY both appealed the ALJ's ruling on various grounds. A series of procedural steps followed which involved DEC procedures (not immediately relevant to a determination of these motions). Ultimately (on November 23, 2009) the ALJ rejected the permit application.

On July 2, 2012, DEC Commissioner Joe Martens issued a decision in which he rejected the findings of ALJ DuBois and found that the Spring Creek Facility would operate within the applicable laws. DEC issued a permit for the Spring Creek Facility on August 2, 2012.

On November 2, 2012, Raritan Baykeeper filed a petition for judicial review of the Commissioner's July 2, 2012 decision as being arbitrary and capricious. DEC responded to the allegations by claiming to have followed DEC's own regulations and the determination was, therefore, reasonable.It is this Article 78 proceeding (the"Article 78 proceeding") which Petitioners seek to consolidate with the instant action.

The relief sought by Petitioner Raritan Baykeeper in the instant summary judgment motion requires this Court to determine whether the use of Spring Creek Park as a solid waste facility is a permissible non-park use of parkland.

Issues Presented

1. Parkland Alienation/Non-Permissible Use of Parkland

The petition brought by Raritan Baykeeper in 2006, (the instant matter) challenges the decision of the Municipal Respondents to authorize and use approximately 20 acres of parkland in the park known as Spring Creek Park as an alleged violation of the "Public Trust Doctrine". Municipal Respondents argue that the City of New York is advancing the City mandate of [*4]recycling and composting by using the Facility to compost leaves, branches, manure and stumps and, as such, the use of the Facility is a permissible park use which does not violate the public trust doctrine.

Raritan Baykeeper adamantly opposes the position of the Municipal Respondents on the grounds that no solid waste management facility can be considered a traditional or legitimate park use; that the public is deprived of any and all recreational access to the subject area; and that the Facility is an eyesore and has created unbearable nuisance conditions.

2. Injunctive Relief

Petitioners argue that the conflict requires a declaratory judgment by this Court that the Respondents have alienated parkland and that injunctive relief is available in this instance to enjoin the Municipal Respondents from conducting operations at the Facility until appropriate action is taken to obtain approval from the New York State Legislature. Injunctive relief is also needed to assure that all barriers be removed for the public to have access to the Park.

Conversely, the Municipal Respondents respond that the application for injunctive relief is premature and not warranted. Since the relevant question in this proceeding is whether DEC improperly interpreted the governing statutes and regulations, the appropriate disposition would be a remand of the matter to DEC with an appropriate interpretation of the same statutes and regulations.

3. Consolidation of the Article 78 Matter and the Instant Matter

CPLR section 602 allows for consolidation of actions which involve a common question of law or fact. Section 602 allows the trial court to make such orders as may be needed to avoid unnecessary costs and delay (see CPLR sec. 602). Petitioners argue that the issue of parkland alienation is the central point in the instant motion for summary judgment by Petitioners and it is "an intrinsic component" of the Article 78 proceedings (see Petitioners' Memorandum of Law in Support of Motion for Summary Judgment and to Consolidate, page 35). Both proceedings involve question regarding the operation of the solid waste facility at Spring Creek and involve, essentially, the same parties.

In opposition to the motion to consolidate, distinctions are raised by Respondents' counsel between the two matters. In the instant matter, the issue pertains to whether the Facility is a proper park function and not violative of the Public Trust Doctrine. The Article 78 proceeding, while it involves the same project, is more specifically a question as to whether parkland alienation can be a proper adjudicable issue in a part 360 Permit Hearing. It is the position of the DEC that it followed its own regulations and procedures and that the decision thus rendered is [*5]reasonable. The question of whether the Facility is an appropriate use of parkland would be wholly an issue for the New York City Parks Commissioner, who had assented to the use of the parkland as a solid waste management facility. Accordingly, the DEC decision (according to the Municipal Respondents) does not call for an interpretation of the proper use of parkland, as that determination was not within the scope of the DEC.


Beginning first with the central issue in this case, which is whether the use of a portion of Spring Creek Park is an alienation of parkland, requires a brief review of the Public Trust Doctrine. The long recognized "Public Trust Doctrine" prohibits the diversion of parkland to any use which is not consistent with public use and enjoyment of a park unless the use has been authorized by the State Legislature. In one of the earliest cases [FN1] the Court of Appeals addressed the doctrine by first describing a park as "a pleasure ground set apart for recreation of the public to promote its health and enjoyment". Williams v. Gallatin, 229 NY 248 (1920). Judge Pound further stated that the park need not be open space but "no objects, however worthy, such as court houses and school houses which have no connection with park purposes should be permitted to encroach upon it without legislative authority plainly conferred". Williams v. Gallatin, id at 253.

There is a formidable body of case law which stands for the proposition that any "non-park use" of a park requires legislative approval (see Miller v. City of New York, 15 NY2d 34 [1964]; Friends of VanCortland Park v. City of New York, 95 NY2d 623 [2001]; Ackerman v. Steisel, 104 AD2d 940 [2d Dept. 1984]).

It is immediately evident from the evidence submitted to this Court that the operation of the Spring Creek Facility precludes the use of the 20 acre portion of the Park for recreational enjoyment by the public. The subject area is fenced in and operated as a solid waste management facility and there is no real dispute between the parties that the composting facility is set aside and unavailable for use by the public.

The Municipal Respondents contend that it is integral to the operation of the New York City Parks that there be a solid waste composting facility located on parkland to process the large volume of organic matter collected by the Department of Sanitation. The composting plan, the City argues, is consistent with local laws and solid waste management plans of the City of New [*6]York.[FN2]

Towards this end, the New York City Department of Sanitation and the Department of Parks Commissioner entered into the MOU on August 27, 2001 to operate a portion of Spring Creek Park as a solid waste management facility. The Parks Commissioner authorized the Department of Sanitation to construct and operate the Spring Creek Facility to generate compost to be used by the Parks Department.

The Municipal Respondents assert that the use of the Facility to compost leaves and branches is a "park use" and is needed to generate compost for the various New York City parks, including Spring Creek Park. The composting of leaves is said to reduce soil compaction and increase water retention, minimizing erosion and storm water runoff. The composting material also adds

nutrients to park soil and is used in planting, horticultural projects and capital projects, among other uses (see Aff. of Bram Gunther in Support of Cross-Motion for Summary Judgment). Furthermore, the testimony offered on behalf of the Municipal Respondents explained that the New York City Parks Department does not have the financial capability to relocate a similar composting facility on a non-park location.

There are many New York State cases which have addressed the question of which uses of park land are permissible park uses and which are not. On one end of the spectrum are cases in which restaurants were proposed to be located within parks. In Central Park a restaurant was permitted to be located in the park with the court describing the proposed restaurant as "well-designed" and "harmonious with the Park" and there was found no violation of the public trust doctrine (see 795 Fifth Ave. Corp. v. City of New York, 15 NY2d 221 (1965). In a recent case, the proposal to place a restaurant and a "holiday market" in Union Square Park was initially found by the trial court to violate the public trust doctrine. However, on appeal the Appellate Division (First Dept.) reversed and, in a brief decision, stated that the proposed restaurant and holiday market do not violate the public trust doctrine since they are permissible park uses (see Union Square Park Community Coalition, Inc., et al. v. New York City Department of Parks and Recreation, 107 AD3d 525 (1st Dept. 2013).

At least as to restaurants, there is an apparent judicial tolerance for allowing a portion of a park to be used for a private enterprise.

On the other hand, cases which involve the use of parkland for uses such as a solid waste disposal sites and landfills are deemed to be unacceptable park uses, and consequently, require [*7]Legislature approval (see Village of Croton-on-Hudson v. County of Westchester, 38 AD2d 979 (2d Dept. 1972): Stephenson v. County of Monroe, 43 AD2d 897 (4th Dept. 1974).

As part of their supporting documentation, the Raritan Bay Petitioners have included evidence that the operation of Spring Creek Park presents an unsightly, industrial operation in Spring Creek Park which generates noise and odors to the surrounding residential community.[FN3] In photos annexed to the motion for summary judgment, (Ex. "10" to the Motion), the Spring Creek Facility is shown with a mountain of garbage bags containing unknown materials which are moved by the use of front end loaders or other heavy equipment. The initial motivation for creating the Spring Creek facility may be premised on a worthy goal of composting leaves and branches, yet in practice the evidence shows that it is more accurately characterized as a working garbage dump.

In reviewing the supporting evidence for the motion and cross-motion, the Court finds that the actual use of the Spring Creek Facility is a large scale solid waste facility, which is inaccessible to the public and provides no typical benefits that are expected of a park. The scope of the

Facility also makes clear to the Court that the Department of Sanitation is using Spring Creek Park as a central location to collect all types of organic waste from locations including and beyond Spring Creek Park. The reality is that the Parks Department has burdened Spring Creek Park with serving as a solid waste processing facility for the general area at the expense of its local residents.

The Municipal Respondents offer the argument that the duration of the Spring Creek Facility is temporary, however, courts have rejected a temporary taking of public park land even for a modest duration of only five years (see Friends of VanCortland Park v. City of New York, 95 NY2d 623 (2001); see also Ackerman v. Steisel,104 AD2d 940 [2d Dept. 1984]).

It is impossible to consider the recycling and composting being performed at Spring Creek Park, to be an acceptable park use. The public is denied the use of the 20 acres of Spring Creek Park and the type of solid waste processing that is being undertaken is a use that presents no aesthetic or enjoyable appearance or activity typically associated with leisure and recreation. The use of Spring Creek Park as a composting facility does not add to the enjoyment of visiting the park or enhance the experience in the manner that a restaurant or café may achieve (see 795 Fifth Ave. Corp v. City of New York, 15 NY2d 221; Union Square Park Community Coalition, Inc. et al v. New York City Department of Parks and Recreation, 107 AD3d 525 (1st Dept. 2013). The attempt by the Parks Department staff to describe the use of the Spring Creek Facility as a [*8]well intentioned effort to compost leaves and branches is belied by the actual industrial scale processing of waste that can not (and should not) be permitted without legislative approval.

In the motions before the Court, the Petitioners have moved for summary judgment for a declaratory judgment declaring that the Municipal Respondents have engaged in parkland alienation and a violation of the public trust doctrine. Municipal Respondents have cross-moved for summary judgment to dismiss the petition for declaratory judgment.

Before considering the drastic remedy of summary judgment the Court must determine that there is an absence of triable issues of fact. Rotuba Extenders v. Ceppos, 46 NY2d 223 ([1978]; Sillman v. Twentieth Century Fox Film Corp, 3 NY2d 395 [1957].

It is well established that the party moving for summary judgment has the burden of establishing the absence of a triable issue of fact. Alzarez v. Prospect Hospital, 68 NY2d 320 [1986].

An extensive argument was presented by both sides of this controversy before the Court and both sides had a full opportunity to set forth the admissible evidence supporting their respective positions. The dispute between these parties is essentially a question of law, that is, whether the use of Spring Creek Park as a composting facility violates the public trust doctrine. Based on the

evidence presented, the conclusion is unassailable that the Municipal Respondents have engaged in the use of a portion of parkland in a manner which is contrary to law and likely detrimental to the surrounding community. The evidence is clear and unambiguous that the size and scope of this Facility is of such a type that it can not be reconciled as a proper "park use" despite the claims made by Municipal Respondents. The available evidence, taken in a light most favorable to the Municipal Respondents confirms that the composting activity is conducted on parkland and the activity is fenced-off from the general public. Aside from providing a general, laudatory goal of composting solid waste material, the Spring Creek Facility in actuality is a disruptive, commercial enterprise that would only be authorized by authority properly conferred by the Legislature (see Williams v. Gallatin, 229 NY 248 [1920]; Friends of Van Cortlandt Park v. City of New York, 95 NY2d 623 [2001]; Jones v. Amicone, 27 AD3d 465 [2d Dept. 2006]).

Accordingly, Raritan Baykeepers' motion for summary judgment is granted based on the finding of this Court that the Municipal Respondents have violated the public trust doctrine and there are no issues of fact presented which would require a trial on this issue.

Injunctive Relief

The Raritan Petitioners have brought the instant action as a declaratory judgment action [*9]and have made the argument that the actions of the Municipal Respondents constitutes an illegal taking of parkland. CPLR sec. 3017 (b) authorizes a preliminary injunction in a declaratory judgment action (see Jones v. Amicone, 27 AD3d 465 ([2d Dept. 2006] ; Ackerman v. Steisel, 104 AD2d 940 [2d Dept. 1984]).

A party seeking injunctive relief must show that : (1) there is a likelihood of success on the merits; (2) irreparable harm is likely absent granting of the injunction; and (3) a balancing of the equities that favors the movant's position (see Aetna Ins. Co. v. Capasso, 75 NY2d 860 [1990]; Doe v. Axelrod, 73 NY2d 748 [1988]; W.T. Grant Co. v. Srogi, 52 NY2d 496[1981]).

In this action there has been a strong showing as a matter of law, that the Municipal Respondents had acted with a good indication that they would be violating the public trust doctrine by issuing a permit for the operation of the Facility.[FN4] The use of the 20 acres in question squarely falls in the category of uses which are not for the public enjoyment. The rationalization that compost is being produced and thereby a benefit to the City parks rings hollow when the scope and nature of the use is considered. Accordingly, the Court is persuaded that the Raritan Baykeeper Petitioners have shown a likelihood of success under these circumstances.Petitioners have demonstrated a clear right under the law and the undisputed facts, for which an injunction is appropriate (see Hoefner v. John F. Frank, Inc. 302 AD2d 428 [2d Dept. 2003]).

The issuance of injunctive relief in this instance is not an award of a ultimate relief, which should only be granted under extraordinary circumstance (see Rosa Hair Stylists v. Jabar Food Corp., 218 AD2d 793 [2d Dept. 1995]). The practical effect of injunctive relief in this matter would be to preserve the status quo until such time as a determination could be reached by the State Legislature to grant its approval to the operation of the Spring Creek Facility.

This Court is also receptive to the arguments raised by the Raritan Baykeeper Petitioners that the operation of the Spring Creek Facility causes irreparable injury. The Court has reviewed the photographs of the Facility when it was operated and is plainly an unattractive activity (see Estrin Aff "Ex. "10"). The Court has also considered the testimony of parties who have testified at the DEC adjudicatory hearings who have described the facility as generating pungent smells that are described as rotting and unpleasant (see Estrin Aff., Ex. "30"). The surrounding community is subjected to a garbage-like facility on parkland which distributes odors, noise and dust and has been installed without the appropriate legal authority. Consequently the Raritan Petitioners are entitled to a preliminary injunction until such time as the State Legislature renders a determination. [*10]

The last prong of the requirements for injunctive relief is also satisfied. The balancing of equities in this case favors the Raritan Baykeeper Petitioners who have made a strong showing that the actions of the New York City Parks Commissioner and DEC were done with a somewhat flagrant disregard for the principles of the public trust doctrine. The operation of a solid waste management facility would not be welcomed in most New York City communities and it appears that the arrangement entered into (the MOU) between the Parks Commissioner and Department of Sanitation (and given the blessing of the DEC Commissioner) is an expeditious end-run to avoid the more cumbersome and politically perilous option of obtaining legislative approval. Nonetheless, the case law is unequivocal and the only legal option is for the Parks Department to obtain the necessary approval. As such, the balance of equities favors the Petitioners.

Motion to Consolidate

Administrative Law Judge Susan DuBois determined that the proposed use of Spring Creek Park as a composting facility would constitute parkland alienation when the matter was before her as part of the permit process. That decision was reversed by DEC Executive Deputy Lynette Stark who concluded that "to allow composting at Spring Creek Park is a local land use determination outside the DEC's jurisdiction and not subject to challenge in a DEC permit hearing proceeding" (see DEC interim decision of Lynette Stark).

Raritan Baykeeper initiated the Article 78 proceeding challenging the Stark determination that parkland was not an adjudicable issue in 2006. The Hon. Justice Martin Schneier dismissed the Article 78 proceeding on May 10, 2007 finding it was not a final determination and, thus, not ripe for adjudication. On July 12, 2012, DEC Commissioner Joe Martens issued a decision which essentially rejected the findings made by ALJ DuBois. On August 2, 2012, DEC issued a solid waste management permit to operate the Spring Creek Facility.

Raritan Baykeeper re-filed the Article 78 petition (index No.: 21409/12) which challenged the issuance of the permit on the grounds that it was improper to exclude the issue of parkland alienation in rendering its decision to award a permit for the operation of the Spring Creek Facility. A second cause of action raised by Petitioners is that DEC certified to New York State that the operation of the Facility is consistent with, and will not substantially hinder, the policies set forth in the New York City Local Waterfront Revitalization Program (see Verified Petition annexed as Ex. "1" to the Petitioner's Motion to Consolidate).

Municipal Respondents oppose consolidation, arguing first that the decision to issue the permit by DEC should not be disturbed because it is not predicated on an error of law and is not arbitrary or capricious and does not represent an abuse of discretion (see Akpan v. Koda, 75 NY2d 561 [19990]; Matter of Reg'l Action Group v. Zagata, 245 AD2d 798 [3rd Dept. 1977]). [*11]

The basis for Respondents' argument is that DEC does not have the jurisdictional basis for adjudicating a parkland alienation claim and, accordingly, the Commissioners's decision not to adjudicate such a claim can not be considered irrational or arbitrary.

Municipal Respondents assert that the management of parks in New York City is a local action and the determination of the proper use of parks lies in the first instance with the City Parks Commissioner (see 795 Fifth Ave. Corp. v. New York, 15 NY2d 221 [1965]).

Municipal Respondents accurately point to the authority of then Parks Commissioner Benape as being vested with the jurisdiction of determining proper park uses (whether or not correctly) and the determination of DEC can not be faulted as arbitrary or capricious when it rests on the determination of the Parks Commissioner that parkland alienation is not indicated. The DEC argument might seem somewhat disingenuous considering that it was DEC, by its own staff early on in the hearing process, who raised the concern of parkland alienation as being a relevant issue for consideration. However, the Court finds that the DEC decision, if it was in reliance on the Parks Commissioner's determination may not be ruled arbitrary or capricious.

In any event, the motion to consolidate does not involve common questions of law or fact. In the present summary judgment motion the question raised is the possibility of parkland alienation, while the Article 78 petition raises the question of whether the DEC issuance of the solid waste permit is arbitrary and capricious. There will also be a separate question of law posed in the Article 78 petition as to whether DEC's decision to issue the permit is consistent with the City Waterfront Program (see Memorandum of Law of Eric T.Schneiderman, by Kathryn M. Liberatore, on behalf of DEC in Opposition to the Motion to Consolidate, pg. 33).

This Court agrees that the issues are separate and must be decided using different analysis. There would be no saving of judicial resources by consolidating the two matter or any other obvious benefit to consolidate the two cases. Accordingly, the motion to consolidate is denied.


For the reasons stated herein, the Raritan Baykeepers' motion for summary judgment declaring that the use and operation of Spring Creek Facility is a violation of the public trust doctrine is granted.

The Raritan Baykeeper Petitioners have established the grounds for injunctive relief and a preliminary injunction is granted requiring the Municipal Respondents be enjoined from operating the Spring Creek Facility unless and until State Legislature approval is obtained. That portion of the Petitioner's motion which seeks an immediate removal of the fences, berms and any other barriers to public entry to the Park is denied, without prejudice. Such application may be renewed if no approval for the operation of the composting facility is obtained within six (6) months of the date hereof. [*12]

CPLR sec. 6312(b) requires this Petitioner to post an undertaking prior to the issuance of a preliminary injunction. While neither party has addressed this aspect of the motion, the Court understands that the Petitioners are a not-for-profit orgqanization and litigating this matter at their own cost (see Daytop Village v. Consolidated Edison Co. of NY, 61 AD2d 933; Broadway Triangle Community Coalition v. Bloomberg, 35 Misc 3d 167 [Supreme Ct., NY Co., 2011]). There is also little concern that the Respondents would suffer economic damages as a result of the injunction. Accordingly, the Court imposes a bond requirement in the minimal amount of $1,000, as a condition of the injunction.

The cross-motion of the Municipal Respondents to dismiss the petition is denied.

The Raritan Baykeeper's motion to consolidate the instant summary judgment proceeding (index no.: 31145/2006) with the Article 78 proceeding (index no.: 21409/2012) is denied.

This shall constitute the decision of the Court.

Settle Order.

Dated: December 20, 2013


Bernard J. Graham, Acting Justice

Supreme Court, Kings County [*13] Footnotes

Footnote 1: While Williams v. Gallatin is often cited as a leading decision in this area, the public trust doctrine was recognized by New York courts as early as the 1870's when the high court found that the City of Brooklyn, which had taken title to certain lands for public use as a park could not convey the same lands without the approval of the State Legislature (see Brooklyn Park Commrs. v. Armstrong, 45 NY 234 [1871]).

Footnote 2:Local Law 19 of 1989 provides for collecting and composting of leaves. The City Solid Waste Management Plan ("SWMP") has been approved by the Department of Environmental Conservation.

Footnote 3:See Affidavit of Ronald J. Dillon, President of Concerned Homeowners Association annexed to Motion for S.J. as Ex. "5".

Footnote 4:As part of the application process for a permit from DEC to operate a solid waste facility, the DEC staff initially raised the issue that there was a potential alienation of parkland. Furthermore, ALJ Susan DuBois ruled that the State Legislature is the appropriate party to authorize the alienation of parkland and not DEC or the Parks Commissioner (see Decision of ALJ DuBois annexed as Ex. 11 to the motion for summary judgment).

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