parcel that eventually was developed into a residential and commercial area. The area to be developed shows 19 small parallel canals running in an east-west direction, to be dredged on the west side of Jamaica Bay Boulevard (now known as Cross Bay Boulevard). The canals are interspersed with short streets coming off the west side of Jamaica Bay Boulevard at right angles. (See Appendix Figure 1).
The Noel Developer's Map reveals that a large part of the southerly portion of the boot-shaped leasehold, the foot of the boot, was left undeveloped and in its natural state. There were no streets or canals in that southern portion. This undeveloped southern portion is referred to as the "Big Egg Marsh," the same name as the entire large marsh island now known as Broad Channel was formerly known. This area, south of the flourishing Broad Channel Community, has remained undeveloped to this day, and is the home of countless fish, bird, animal and other wildlife species.
Noel leased portions of the developed land in Broad Channel to individuals for residential and business purposes. Apparently Noel encountered financial difficulties during the Depression, and the City terminated his lease in 1939. From that time on, the City assumed the role of direct landlord to the former subtenants of Noel and all other tenants of Broad Channel. These lessees, almost all residential, then became month-to-month tenants of the City. The leases issued by the City used the block and lot designations set forth on the Developer's Map. The southerly marsh area, including the Big Egg Marsh, remained natural and undeveloped.
In tracing the historical development of the Broad Channel Community, there is some confusion caused by the fact that in some documents the names "Broad Channel" and "Big Egg Marsh" were used interchangeably to describe the same property. A good illustration of this interchange of names is shown in the pamphlet entitled "Jamaica Bay, A History" (Def. Ex. C). The first map in the pamphlet dated in 1911, prior to the Noel development (Figure 16), refers to the entire boot-shaped area as "Big Egg Marsh." However, the third map in the pamphlet dated 1940 (Figure 18), designates only the southerly undeveloped portion of the boot as "Big Egg Marsh".
B. The Robert Moses Plan
By the 1930s, New York City Parks Commissioner Robert Moses had plans for the 18,000 acres of water, marshland and meadowland in Jamaica Bay as "offering unlimited possibilities for recreational and residential development . . . [on] the natural grassy islands." He envisioned public use of the meadowlands adjoining Cross Bay Boulevard, including Big Egg Marsh, and purification of the Bay's polluted waters. (Def. Ex. C). Moses also proposed to transfer all the islands of the Bay to the Department of Parks for recreational use, including fishing and boating, and for the preservation of wildlife.
The Moses vision was realized when the City transferred most of the Bay and its marsh islands, except a portion of Big Egg Marsh, to be retained by the Bureau of Real Estate, to the New York City Department of Parks on July 15, 1945. (N.Y.C. Local Law Nos. 31 and 32; Def. Ex. B-319). The city park area was known as the Jamaica Bay Wildlife Refuge. As noted in all the local laws and documents, and is stipulated by the parties, the boot-shaped area known as Broad Channel and Big Egg Marsh was not part of this City park land.
In 1946, the City formally adopted a street map for Broad Channel (City Ex. DB). The City continued to issue leases for occupancy of portions of Broad Channel. By 1982 there were approximately 900 residential tenancies and 50 commercial tenancies on Broad Channel. (Tr. at 6857-6858). A 1941 map, undated to 1951 by the United States Engineer's Office (Pl. Ex. 40), clearly shows this developed area of Broad Channel and the undeveloped area known as the Big Egg Marsh.
C. The Gateway National Park
On October 27, 1972, Congress passed an act to establish the Gateway National Recreation Area. The actual conveyance of the property from the City of New York to the Federal Government occurred on March 1, 1974. The stated purpose of the Gateway Act is "to preserve and protect for the use and enjoyment of present and future generations an area possessing outstanding natural recreational features." The Gateway National Park includes Jamaica Bay, Breezy Point and Sandy Hook. In the Gateway National Park is the Jamaica Bay Wildlife Refuge which encompasses "all islands, marshes, hassocks, submerged lands and waters in Jamaica Bay, Floyd Bennett Field, the lands generally located between highway Route 27A and Jamaica Bay up to the shoreline of John F. Kennedy International Airport." 16 U.S.C. § 460cc(a). The Gateway National Park does not include the Broad Channel Community.
Among the provisions of the Gateway Act is the following:
that the Secretary of the Interior) shall administer and protect the islands and water within the Jamaica Bay Unit with the primary aim of conserving the natural resources, fish, and wildlife located therein and shall permit no development or use of this area which is incompatible with this purpose.
16 U.S.C. § 460cc(a).
In addition to the enthusiastic and descriptive language in the House of Representative Report cited in the opening words of this opinion, the United States Senate report on the bill which became the Gateway Act also praised Jamaica Bay:
Jamaica Bay fascinates biologists and the nature-minded not only for its wealth of birdlife but also because of the seemingly sturdy health of its ecological communities in the midst of unhealthy conditions. Though poor in its water purity rating, it is rich in fish and wildlife. Some 200 species of birds have been reported in Jamaica Bay at breeding and migration periods. It is strategic nesting ground for birds along the Atlantic flyway. To have this outdoor research laboratory within a region of 20 million people is of underminable value.