City Blocked in Bid to Operate Compost Facility in Local Park

, New York Law Journal

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New York City cannot operate a 20-acre composting facility in Brooklyn's Spring Creek park unless it can get approval to do so from the state Legislature, a Brooklyn state judge has ruled.

Acting Supreme Court Justice Bernard Graham (See Profile) ruled on Dec. 20 in Raritan Baykeeper v. City of New York, 31145/06, that the facility, which was built to compost leaves, manure and tree stumps gathered from Spring Creek Park and other city parks, is an alienation of public parkland and therefore a violation of the public trust doctrine, which requires that all parkland be open for use by the public unless the Legislature authorizes another use.

The decision was a victory for Raritan Baykeeper, also known as New York/New Jersey Baykeeper, a group that advocates for clean water in the lower bay of New York's harbor.

The facility, called the Spring Creek Park Composing Facility, was built in 2001 under a memorandum of understanding between the Parks Commissioner and the Commissioner of the Department of Sanitation that allowed about 20 acres of Spring Creek Park to be used for the facility.

It began operating immediately, until the Department of Environmental Conservation told the Sanitation Department in 2002 that it needed a permit. The Department of Sanitation then stopped operation of the facility and applied for a permit from the DEC. Raritan Baykeeper and others opposed that application. The facility has not operated since 2002, but has remained fenced off and inaccessible to the public.

In 2004, a public hearing was held on the permit before a DEC administrative law judge, Susan DuBois.

In 2006, while the application process was still pending, Raritan Baykeeper and two individual citizens filed a petition against the Parks Department and Department of Sanitation challenging the city's plan. They claimed that the plan was an alienation of parkland because the land used for the solid waste facility could not be used for any recreational purpose, and therefore violated the public trust doctrine. The petitioners further said that the project harmed the salt marshes in adjacent Jamaica Bay, which form a natural buffer keeping out water pollution.

They also said that, while in operation, the facility created noise and an unpleasant rotting smell in the area, and presented evidence that the facility was being used for material other than leaves, stumps and manure.

In 2009, DuBois rejected the city's permit application. She also ruled, in an earlier order, than any alienation of parkland would have to be approved by the Legislature. However, in 2012, the DEC commissioner rejected DuBois's determination and issued a permit. Raritan Baykeeper then filed a separate Article 78 petition against the DEC seeking to overturn that decision, and moved to consolidate the two court actions.

Graham denied the motion to consolidate, finding that the issues presented in the two cases were sufficiently different to remain separate. However, he ruled that Raritan Baykeeper is entitled to summary judgment against the city on the public trust doctrine issue.

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