The complaint alleges that the project cannot proceed without approval by the State Legislature under the “public trust” doctrine that protects all parkland throughout the State against any form of transfer or introduction of non-park uses without consent of the Legislature. It does not appear that any such approval for the shopping center use has been requested or obtained.
The complaint also alleges violations of the City’s Zoning Resolution and Charter, and seeks annulment of approvals granted by the City to date for the related Willets Point plan.
The site is 30.7 acres near the northerly end of the Park. From 1964 to 2006, the site was occupied by Shea Stadium. When Shea was demolished and replaced in 2009 by Citi Field at a location slightly east of the Shea site, the project site became a parking field for visitors to Citi Field. The site has also been used for a variety of public recreational events including foot races, circus performances, an annual wheelchair baseball game, and concerts.
In 2012, Sterling Equities and the Related Companies, both well-known developers, convinced the Bloomberg administration to allow the shopping mall on Park property, although the City Council had approved a plan in 2008 to place the intended retail development in the neighboring Willets Point development project along with affordable housing.
The project has moved forward without the customary public review. There have been no hearings on it before community boards, the Planning Commission, the City Council, or the State Legislature. The Bloomberg administration appears to have acted on the assumption that no public review is required because in 1961 the State Legislature approved construction of Shea Stadium and provision for parking, with wording broad enough, say proponents of the project, to allow replacement with a shopping center. The Supplemental Environmental Impact Statement for the project on the parking field declares that the parcel is on designated parkland and that legislation permits the shopping mall project. It lists approvals that the City and developers expect to seek, but State legislative approval is not among them.
The contention that the 1961 law exempts this transaction from the public trust doctrine, says John Low-Beer, one of the plaintiffs’ lawyers, is wrong. “The 1961 law was intended to allow a stadium and uses directly related to a stadium, such as parking, concessions, and other commercial activity typically incidental to a professional sports arena.”
Low-Beer adds that the 1961 law “says nothing about a shopping center. In fact, the Legislature explicitly prohibited any purely commercial uses other than ones strictly related to the stadium, such as concession stands. The public trust doctrine requires that any legislative consent be very specific about what it will allow. If it doesn’t specify a use, then that use is not permitted.”
Senator Tony Avella stated that “Parks are intended to serve the people, to provide open space, landscaping, opportunities for recreation, playgrounds for children, and escape from the hordes and noise of a busy commercial city. The only commercial uses that belong in them are those, such as snack stands, that enhance the park experience. A shopping center is not one of them. We have a wonderful law that is supposed to assure all of this, known as the ‘public trust doctrine.’ I’m outraged when the people who are supposed to administer parks for everyone turn them over to private interests without seeking the State Legislature's consent as the public trust doctrine requires. So, I am very pleased to be a party to this action.”
The plaintiffs include Paul Graziano and Ben Haber who have prominently opposed a spate of recent proposals for new or enlarged sports venues in the Park, as well as the shopping center. The efforts of “Save Flushing Meadows Park,” a coalition of many Queens civic groups put together by Graziano, Haber and others, thwarted the proposed professional soccer stadium, though it was unable to stop a half-acre expansion of the Tennis Center. They have also led opposition to the shopping center.
New York City Park Advocates, a City-wide parks advocacy group that helped to establish “Save Flushing Meadows Park,” is also a plaintiff. Other plaintiffs are individuals and businesses falling into several categories including nearby residents, park users, and businesses along Roosevelt Avenue and in Willets Point having special concerns about traffic and business displacement.
The efforts of the “Save Flushing Meadows Park” group were recently bolstered by the City Club which took on the shopping center as a major project after successfully participating in a campaign to defeat a proposed upzoning of the East Midtown area around Grand Central Terminal that would have doubled the permissible bulk in much of the area. After Council leaders announced in early November that the Council would vote against the plan, Mayor Bloomberg withdrew it.
Michael Gruen, President of the City Club, said that the City Club joined the shopping center fight out of concern that “Flushing Meadows Park has long suffered from neglect in maintenance and from getting eaten away as a recreational park by a voracious assumption that every new idea for a commercial sporting activity should be given a home in this one Park. Fortunately some of the worst, such as a proposed “grand prix” race track around the lake, have been defeated. But this is a beautiful park and it deserves much better treatment.”
Gruen added that the City Club sees the shopping center project as “perhaps the most egregious example of commercialization of parkland throughout the city. There are places where the annual cycle of fashion shows and holiday bazaars leave little time for enjoying the open space and landscaping. That it is the worst of a pattern of treating parkland as an asset to be sold off for commercial use caused us to take it on so that we could get the courts to draw a clear line: commercial uses that do not enhance the recreational experience of parks do not belong in the parks.”
Gruen said that the City Club hopes “clearly to confirm that any alienation of parkland requires legislative action, very specifically stating what uses are to be allowed. The legislative consent must then be construed narrowly by the courts so that ambiguities in statutory language cannot be exploited, as the developers here are trying to do, to justify other commercial uses that the legislature had no evident intention of condoning.”
The case is filed in the New York County Supreme Court. John Low-Beer, Lorna Goodman and Meredith Feinman represent the plaintiffs.
The complaint asks the Court to declare that the shopping mall project is illegal and to enjoin further steps toward its construction without compliance with applicable law including the public trust doctrine, and without imposing appropriate zoning regulations on the site.
It also asks the Court to nullify actions taken by the Planning Commission, and approved by the Council in October of last year, to permit construction of parking facilities in Willets Point in lieu of the affordable housing and supportive facilities called for by the 2008 plan. The complaint asserts that the Commission and Council knew that the changes in the Willets Point plan were needed for no other purpose than to accommodate stadium parking displaced by the intended shopping center, and knew that the shopping center project itself is illegal without approval of the legislature. They knew that their action would facilitate illegal construction of the shopping mall, the promoters of which had clearly stated their belief that they could proceed with without legislative approval. The Commission and Council thereby acted illegally, and arbitrarily and capriciously.