The public trust doctrine provides that government holds title 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 London5 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 [ Read More ]

† B.A. 2002, Cornell University; M.A. 2004, Brown University; J.D. Candidate 2007, University of Pennsylvania Law School.  I would like to thank Professor Theodore Ruger, Professor Wendell Pritchett, and Mrs. Susan Shapiro for their input during this process, as well as the Board, Senior Editors, and Associate Editors of the University of Pennsylvania Law Review for their efforts in making this piece the best it could be.  I also want to thank Stephanie Hales and Ryan McCarthy for their thoughtful suggestions.  Lastly, and most importantly, I would also like to thank my wife and family for their help and support.  All errors are mine alone.
  1. See infra notes 16-17 and accompanying text (discussing early definitions of the public trust doctrine in Supreme Court cases).
  2. Cyane Gresham, Note, Improving Public Trust Protections of Municipal Parkland in New York, 13 FORDHAM ENVTL. L.J. 259, 263 (2002).
  3. See infra notes 31-33 and accompanying text (discussing U.S. Supreme Court holdings permitting the transfer of public lands to private parties where doing so promotes the public interest by serving a public purpose).
  4. See Williams v. Gallatin, 128 N.E. 121, 122 (N.Y. 1920) (“A park is a pleasure ground set apart for recreation of the public . . . . It need not, and should not, be a mere field or open space, but no objects, however worthy . . . which have no connection with park purposes, should be permitted to encroach upon it without legislative authority plainly conferred . . . .”); see also Friends of Van Cortlandt Park v. City of New York, 750 N.E.2d 1050, 1053 (N.Y. 2001) (“[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.” (footnote omitted)).  It is difficult to predict exactly what qualifies as a park or non-park use because New York courts approach this question on a case-by-case basis, pursuant to a fact-intensive inquiry.  See infra Part III (discussing the inconsistency of New York’s public trust doctrine as applied to parkland); see also Gresham, supra note 2, at 300 (describing uses that the New York courts have deemed “park uses”); infra note 36 and accompanying text (providing examples of approved park uses).
  5. 125 S. Ct. 2655 (2005); see also infra Part II (discussing the Supreme Court’s definition of “public use” in its takings jurisprudence as a public purpose and a public benefit).
  6. 335 N.E.2d 327, 330-31 (N.Y. 1975).
  7. See Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law:  Effective Judicial Intervention, 68 MICH. L. REV. 471, 495-96 (1970) (describing the courts’ role as forcing the legislature to expressly transfer trust lands to private third parties where such transfers appear to subordinate the public interest).  Sax argues that the courts, in forcing government to expressly authorize questionable transfers to private parties, create “an openness and visibility which is the public’s principal protection against overreaching, but which is often absent in the routine political process.”  Id. at 496.