The mayor announced last month that the developers would be Sterling Equities, the real estate firm of Mets owners Fred Wilpon and Saul Katz, and the Related Companies, a partner in previous plans by the Bloomberg administration, notably the Gateway Center Mall on the site of the old Bronx Terminal Market.
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 as Administrative 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.”
Challenges have been mounted to the improper alienation of parkland by municipalities, and there is no statute of limitations on reclaiming parks. Croft's group is trying to stop Related from using a 1983 agreement with the city to build on a Yorkville playground at the Ruppert House Apartments, and Super recently convinced a state appellate court to side with Nassau County residents against a town that had used parkland for public-works vehicles over the past 60 years. In the 1920s Robert Moses illegally paved over a sliver of New York City parkland during construction of the West Side Highway. In the late 1990s, the state planned to put new car lanes on it, but neighbors discovered the land had been a park. They sued and won. The state had to shell out more than a million dollars to rebuild Canal Street Park.
Back to the courtroom
The Bloomberg administration has faced numerous legal challenges over its plans to redevelop Willets Point. Now, under its revised scheme, the city is focusing on a “first phase,” which includes 23 acres of the 62-acre Willets Point site as well as the Citi Field parking lot.
For the past seven years, property owners in one group, Willets Point United, have opposed the mayor’s plan to take their land by eminent domain. But just before the city's suit went before an appellate judge this spring, the administration pulled the plug, withdrawing its attempt to acquire the private property. Rikon says his two-dozen clients are now due $1.1 million from the city, which, under state law, should be obligated to reimburse all expenses incurred by property owners after it abandons an eminent domain proceeding. The city says it owns 95 percent of the land needed for the new project, but Rikon claims it has not yet secured 17 properties from nine different owners. “The city has a Swiss cheese parcel,” he says.
The city has yet to contact Irene Prestigiacomo, who rents her property on Willets Point to seven small businesses. “I even complained to my Congressman [Joseph Crowley] and didn’t hear anything,” she says. “If you want my property, you should at least talk to me about it. This has been going on for years. It's made me depressed and scared to death I’m going to lose everything.”
The shopping mall announcement came just before the state Attorney General found two city-funded development agencies had illegally lobbied the City Council to approve the mayor's redevelopment scheme in 2008. The Mets' head of business operations, David Howard, later sat on the board of one of these agencies, the Flushing-Willets Point-Corona Local Development Corporation.
Both Gerrard and Rikon believe the new plan, as well as the illegal lobbying, should require the city to start from scratch and put the proposed redevelopment once again before the City Council as part of the official approval process, known as the Uniform Land Use Review Procedure. But the new project will not go through ULURP. The existing environmental impact statement will be "updated," explains a spokesman for the city’s Economic Development Corporation, and the City Council will consider only a new zoning amendment to permit the shopping mall. The local Council member, Julissa Ferreras, had said she's undecided on the project, but she lent a supporting quote to the city's press release.
Sterling and Related will have to clean up the 23 acres on Willets Point before they build their shopping mall on the Citi Field parking lot. Most of this cleaned-up parcel would then provide parking for the stadium and the mall. Environmentalists have criticized using the polluted land for a parking lot, fearing that will ensure a lax clean-up, or the mere capping of contaminated land, a practice known as "pave and wave."
On non-game days and in the off-season, artificial turf will be rolled on top of the new parking lot for temporary athletic fields, though the city denies this feature is intended as replacement parkland: The fields will be the responsibility of the developers, working in conjunction with community groups. The new 20-acre parking lot may host other recreational uses, the city says, including a skate park or an ice-skating rink in the wintertime.
Two views of parks' value
Over the years, Rikon has seen numerous proposals for Willets Point, all unsuccessful. In the early 1980s, he recalls, Donald Trump even got the state to condemn the property, but he still couldn’t build his planned football stadium for the New Jersey Generals. Back when Rikon worked for the city as a condemnation lawyer during the Lindsay administration, Moses had just failed to turn Willets Point into parkland; business owners there had hired a young attorney named Mario Cuomo and defeated the park plan.
Former City Councilwoman Carol Greitzer remembers getting a call from Cuomo about Willets Point in the 1960s, just after she’d co-founded the Council for Parks and Playgrounds (later the Parks Council). Her group ended up siding with the business owners against Moses. Land is a precious commodity in New York, she notes, and the city has since shown it will even capitalize on parkland. "I had never heard of the term alienation until the 1980s, when Bryant Park had to go to the state Legislature to put a restaurant in the park," she says.
Greitzer is currently fighting the city's plan to put a high-end restaurant in the Union Square Pavilion. That pavilion has been used for public recreation in the past, but the city claims alienation isn't required before turning it into a commercial enterprise.
Moses had hoped Flushing Meadows would be renamed after him. But no place in the city was dedicated to the creator of America's largest urban parks system until 1982, a year after his death. Murray Hill residents had defeated a proposal to put apartment towers on a block-long playground just south of the United Nations, and they decided to name the lot after Moses.
The UN now wants to build on the Robert Moses Playground, and in exchange it will pay $73 million to help fund the city's East River esplanade. But, first, last year the state Legislature had to alienate the park.