Extract
Towards environmental entrepreneurship: restoring the public trust doctrine in New York.
INTRODUCTION
The public trust doctrine provides that government holds tide to certain lands and waterways in trust for the public benefit and public use. (1) While the common law doctrine varies from state to state, historically it "requires that ... trust land[s] be accessible and used for a public purpose; that [they] be put to ... uses appropriate to the resource; and, in some cases, that [they] not be sold." (2) It does not, however, foreclose the private lease and license of public lands; rather, it requires that such lands be utilized primarily for the public benefit, and only incidentally for private benefit. (3) Thus, fundamentally, the public trust doctrine incorporates a public use test. The New York public trust doctrine, as it applies to public parkland, has nebulously defined "public benefit" and "public use" as a "park," in contrast to a "non-park," use. (4) In this Comment, I argue for a reformulation of the public trust doctrine in New York in consonance with the historical public use test, as defined by the United States Supreme Court most recently in Kelo v. City of New London (5) and New York state courts more than three decades ago in Yonkers Community Development Agency v. Morris. (6) Focusing specifically on New York City parks, I argue that a reformulated public trust doctrine will permit optimal public benefit from privatization of some green spaces. This public benefit will come in the form of revitalized green spaces, previously forsaken by municipal government. Further, a reformulated public trust doctrine will limit judicial intervention in this area to the courts' traditional role of striking down transactions in which government overreaches and attempts to transfer trust lands predominantly, not incidentally, for the benefit of private third parties. (7) In New York, the public trust doctrine has developed on a case-by-case basis, with decisions alternately broadening or narrowing the definition of park use and thereby allowing either more or less opportunity for private use of public lands. (8) This sort of analysis not only creates uncertainty, but also fundamentally misses the point. The form of the public trust doctrine, broad or narrow, should depend on what courts will accept as a sufficient public benefit accruing from private control of lands held in public trust, not on what courts believe constitutes a park or non-park use. Thus, the doctrinal question should be how a jurisdiction's highest court and/or the United States Supreme Court define(s) public use and public benefit. (9) Seen through this lens, the public trust doctrine takes its cues from the Fifth Amendment's Takings Clause. Part I of this Comment briefly traces the origin and evolution of the public trust doctrine in the United States. This discussion serves two purposes. First, it dispels the notion that the public trust doctrine is an inherently environmentalist doctrine. One may put the doctrine to environmentalist ends, but its historical origin is rooted in government encouragement of economic development. (10) Second, the discussion in Part I shows that the American public trust doctrine, as initially enunciated by the U.S. Supreme Court, incorporates the public use test. Part II examines the Supreme Court's recent decision in Kelo and discusses its implications for reformulating New York's public trust doctrine with respect to parkland. Kelo's condoning of private-to-private takings turns on a cementing of the definition of "public use" as public purpose or benefit; this test coincides with the public use doctrine as developed by New York state courts three decades earlier in Morris. (11) While it creates a dilemma for private property rights advocates in the takings context, the broadened definition of public use is a practical test in the public trust context. It permits measured private development of public property for the benefit of the public, without hindering judicial authority to void, pursuant to the public trust doctrine, transfers made primarily for the benefit of private parties. In other words, the exception does not swallow the rule. Part III reviews the major New York cases to show that the current doctrine is unworkable and concludes that a doctrinal move from park use to...See the full content of this document
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