NEW YORK, June 8 (Reuters) - An appeals court has cleared
the way for New York City to build a new marine waste-transfer
station on the Upper East Side of Manhattan.
The Appellate Division, First Department, ruled on Tuesday
that the city doesn't need legislative approval for the access
ramp and transfer station currently planned for a site at East
91st Street and the East River.
The decision upholds a lower court's ruling that Asphalt
Green and Bobby Wagner Walk are not public parks subject to the
Public Trust Doctrine, which would require the city to get
legislative approval before intruding on them for non-park
Asphalt Green is a recreational complex with a swimming
pool, a gymnasium and a playground, according to court papers.
Seventy percent of the time, the public's access is restricted
to people who pay "substantial membership fees," the decision
said. The Department of Transportation owns Bobby Wagner Walk,
which functions primarily as a thoroughfare, distinguishing it
from a park, the decision said.
The proposed station is part of a solid-waste management
plan that would allow some of Manhattan's waste to be
containerized on site, making it suitable for barge and rail
export, court papers said. Construction is slated to begin next
year, city officials said.
Opponents of the transfer station, including former
Assemblyman Adam Clayton Powell IV, originally sued in 2006,
claiming that the city failed to analyze the impact that would
result from the demolition and construction, and failed to seek
"From the beginning, this case has had no merit and this
has now been confirmed twice by the courts," said Jane Gordon
of the New York City Law Department, who represented the city
in the state appeal.
Howard Epstein, a partner with Schulte Roth & Zabel, said
the plaintiffs are considering their options.
"We think that anybody who's ever been to Asphalt Green or
who's gone on the Parks Department's website has to be confused
by the Parks Department's and the city's position that it's not
a park," Epstein said.
Asphalt Green has the largest all-weather field in the
city, and thousands of children learn how to swim there every
year, he said, and added that it also functions as a playground
for many local schools.
"The relative proximity of the operation to where these
kids are playing is something that we thought was appropriate
for the legislature to review," Epstein said.
The appellate case is Adam Clayton Powell IV et al v. City
of New York et al, New York Appellate Division, No.
For Powell et al: Howard Epstein of Schulte Roth & Zabel.
For the city: Jane Gordon of the New York City Law
(Reporting by Jennifer Golson)