“Along” Is Not “Within”: Highway Law § 349-e Does Not Plainly Alienate Humboldt Parkway Parkland, and Green Amendment Claims May Proceed Based on Ongoing Expressway Operations

A. Precedents Cited (and How They Shaped the Decision)

1. The CPLR 3211(a)(7) / declaratory judgment “three-step” framework

The court’s gatekeeping analysis is anchored in Matter of Kerri W.S. v Zucker, which itself synthesizes older Court of Appeals doctrine. The Fourth Department applied Kerri’s structured approach:

1. Justiciability (step one): Whether the pleadings show a “bona fide justiciable controversy,” drawing on Parker v Hilton and Hallock v State of New York.
2. Whether factual issues preclude summary determination (step two): If material facts are disputed, dismissal/accelerated judgment is inappropriate.
3. Immediate declaration (step three): If only legal/statutory interpretation issues remain, the court should “retain jurisdiction” and declare rights, as described in St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ..

The decision also references the baseline CPLR 3211(a)(7) standard (outside the declaratory context) from Leon v Martinez, while emphasizing that declaratory actions permit “accelerated judgment on the pleadings” under Boryszewski v Brydges.

This framework matters substantively: the majority located genuine factual disputes (dedication and effects of highway operation) and therefore stopped at step two, reinstating claims; the dissent characterized the public trust issue as pure statutory interpretation and would have moved to step three to declare for the State.

2. The public trust doctrine and “plainly conferred” legislative alienation

The core public trust principles are taken from:

• Friends of Van Cortlandt Park v City of New York (parkland is “impressed with a public trust” and cannot be used for extended non-park purposes absent legislative approval);
• Matter of Avella v City of New York (alienation must be “plainly conferred” through “direct and specific approval of the State Legislature”);
• Matter of Clover/Allen's Cr. Neighborhood Assn. LLC v M & F, LLC (Fourth Department articulation of dedication and public trust constraints);
• Matter of Glick v Harvey (test for implied dedication: unmistakable owner intent + public acceptance);
• Union Sq. Park Community Coalition, Inc. v New York City Dept. of Parks & Recreation and Capruso v Village of Kings Point (dissent’s additional reinforcement of “direct and specific approval”).

The decision also draws on historical, Buffalo-specific authority—Holtz v Diehl and People ex rel. Smith v Mosier—to evaluate whether Humboldt Parkway functioned as parkland/park approach rather than a mere street. The majority reads those cases as supporting park character (e.g., “strictly park purpose,” “system of continuous park lands, park approaches and parkways”); the State defendants cited them to argue the opposite.

3. Statutory interpretation tools and ordinary meaning

The majority’s reading of Highway Law § 349-e is explicitly textual:

• It applies ordinary meaning principles from People v Versaggi (“within” = inside; “along” = adjacent to).
• It applies expressio unius est exclusio alterius (via McKinney’s Statutes § 240) to infer that where the Legislature used “within” to authorize construction through identified parks in other cities, its use of “along” for Humboldt Parkway indicates a narrower authorization not amounting to parkland alienation.

The dissent rejects the “along vs within” distinction as dispositive and emphasizes incompatibility logic—highway use is destructive of park use—citing Chateau Rive Corp. v Enclave Dev. Assoc. and Matter of Cent. Parkway, and analogizing to older public-trust/park authority concepts from Brooklyn Park Commrs. v Armstrong.

4. Green Amendment justiciability and preservation

On the Green Amendment claim, the court cites Fresh Air for the Eastside, Inc. v State of New York to situate NY Const, art I, § 19 in existing Fourth Department jurisprudence. Critically, it uses Ciesinski v Town of Aurora to decline review of an argument (non-self-executing) not raised below. That procedural move is outcome-determinative at this stage: the court proceeds on plaintiffs’ pleaded theory that § 19 is self-executing because the State did not preserve a contrary position.

B. Legal Reasoning

1. Why the City stayed out (pleading attribution and conduct)

For both causes of action, the court emphasized a basic pleading/attribution requirement: plaintiffs must allege that the defendant engaged in conduct that violates the asserted legal duty. Although the City owns the land, plaintiffs did not plead City actions constituting (i) an alienation decision requiring legislative authorization, or (ii) ongoing operation/maintenance of the expressway in violation of NY Const, art I, § 19. Hence, dismissal as to the City was affirmed.

2. Public trust doctrine: dedication is fact-bound at this stage

The majority treats “is this parkland?” as fact-sensitive under both express and implied dedication theories:

• Express dedication: The Buffalo Park Act language—lands vesting “forever” for “a park or parks, approaches thereto, and streets connecting the same”—creates at least a triable question whether “park approaches” like Humboldt Parkway were dedicated to protected public/park use.
• Implied dedication: Using Matter of Glick v Harvey, the court found allegations and proffered proof supporting (a) unmistakable municipal intent (acquisition under the Buffalo Park Act; design and construction as part of the park system; continuous maintenance by park authorities) and (b) public acceptance (substantial recreational use over decades). The Attorney General’s informal opinions (1981 Atty Gen [Inf Ops] 81-98; 1984 Ops Atty Gen No. 94-15) reinforce that dedication is often a question of fact turning on improvement and public use.

This focus on factual development is what keeps the case in step two rather than step three: the court cannot “declare rights” definitively while the parkland character of Humboldt Parkway remains genuinely contested.

3. Public trust doctrine: “along” is insufficiently specific to alienate (majority)

The majority’s most precedent-setting move is its narrow construction of legislative authorization under Highway Law § 349-e. Even assuming dedication, alienation must be “plainly conferred” by “direct and specific approval” (Matter of Avella v City of New York). The court reads § 349-e’s Buffalo provision (“along Humboldt parkway”) against:

• The same statute’s explicit “within and in the vicinity of” language for Washington Park (Albany) and Clinton Square (Syracuse), and
• The ordinary meaning distinction between “along” and “within” (People v Versaggi).

On that basis, the majority holds the statute does not clearly authorize use of Humboldt Parkway land itself for an expressway. The interpretive inference is strengthened by expressio unius: having demonstrated that it knows how to authorize construction within parks when it wishes, the Legislature’s choice of different language for Buffalo signals a different scope of authorization.

4. Public trust doctrine: “along” necessarily authorizes replacement (dissent)

The dissent’s reasoning is more functional: a highway is incompatible with park use, so legislative authorization to build a highway “along Humboldt Parkway” necessarily authorizes alienation; no “magic words” are required. It also questions whether the “along vs within” distinction coherently applies to a linear parkway as compared to an areal park, and suggests the statute’s frequent use of “along” elsewhere cannot reasonably mean “adjacent to” in every instance.

The dissent thus would treat the public trust claim as a pure legal question resolved by statutory text and would proceed to step three to issue a declaration that the State defendants did not violate the public trust doctrine.

5. Green Amendment: ongoing operations can supply a post-2022 controversy

The court accepted as justiciable plaintiffs’ contention that the State’s continued operation and maintenance of the expressway—alleged to increase air and noise pollution and to correlate with cardiopulmonary disease, lower life expectancy, and deaths—implicates the right to “clean air and water, and a healthful environment” (NY Const, art I, § 19). The opinion treats the claim as prospective in application (the harm-producing conduct is ongoing after January 1, 2022), echoing Footnote 1’s response to the State’s “prospective application” argument.

Procedurally, by invoking Ciesinski v Town of Aurora, the court blocks a late-breaking appellate attempt to contest self-execution and keeps the case positioned for factual development on causation, State responsibility, and the constitutional standard of violation.

C. Impact

1. Statutory drafting and litigation over parkway conversions

The majority’s “along is not within” holding will likely reverberate in challenges to legacy infrastructure that displaced parks, park approaches, or public-use green corridors. Plaintiffs may now argue that generalized route authorizations “along” named corridors do not meet Matter of Avella v City of New York’s “plainly conferred” standard for alienation where the land is plausibly dedicated parkland.

For legislators and agencies, the decision signals that if the intent is to permit construction through dedicated parkland, the statute should speak with unmistakable specificity—potentially by naming the parkland and authorizing construction “within” it, or otherwise expressly stating alienation/repurposing.

2. Renewed vitality of fact-intensive dedication inquiries

The opinion underscores that dedication (especially implied dedication) can turn on historical design purpose, long-term maintenance patterns, and public recreational use. That emphasis encourages litigants to build archival and expert records—plans, maintenance documents, historical maps, federal recognitions, and public-use evidence—early in litigation.

3. Green Amendment enforcement via ongoing operational harms

By allowing the Green Amendment claim to proceed based on ongoing highway operation/maintenance, the Fourth Department implicitly confirms that NY Const, art I, § 19 can function as a live constraint on existing infrastructure, not merely a guide for new permitting. The most immediate doctrinal effect is procedural: dismissal at the pleading/accelerated-declaration stage may be harder where plaintiffs allege measurable, ongoing pollution burdens tied to State-managed facilities.

4. The declaratory-judgment “accelerated merits” tool—used cautiously

The decision illustrates that CPLR 3211(a)(7) in declaratory actions can become a quasi-merits vehicle (Boryszewski v Brydges; Matter of Kerri W.S. v Zucker), but the majority signals restraint where historically contingent facts matter. The dissent, by contrast, would leverage the same procedural doctrine to reach and declare the merits where it sees pure statutory interpretation.