court of appeals · to be argued by: seth p. waxman (pro hac vice)time requested:15 minutes...
TRANSCRIPT
To Be Argued By:
SETH P. WAXMAN
(pro hac vice)
Time Requested: 15 Minutes
APL-2015-00053
New York County Clerk’s Index No. 103844/12
Court of AppealsSTATE OF NEW YORK
DEBORAH GLICK, individually and in her representative capacity as
Assemblymember for the 66th Assembly District, BARBARA WEINSTEIN, JUDITH
CHAZEN WALSH, SUSAN TAYLORSON, MARK CRISPIN MILLER, ALAN HERMAN,
ANNE HEARN, JEFF GOODWIN, JODY BERENBLATT, NYU FACULTY AGAINST
THE SEXTON PLAN, GREENWICH VILLAGE SOCIETY FOR HISTORIC
PRESERVATION, HISTORIC DISTRICTS COUNCIL, WASHINGTON SQUARE
VILLAGE TENANTS’ ASSOCIATION, EAST VILLAGE COMMUNITY COALITION,
(Caption continued on inside cover)
BRIEF FOR NECESSARY THIRD-PARTY APPELLANT-RESPONDENT
d
ALAN E. SCHOENFELD
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center250 Greenwich StreetNew York, New York 10007Telephone: (212) 230-8800Facsimile: (212) 230-8888
PHILIP E. KARMEL
BRYAN CAVE LLP1290 Avenue of the AmericasNew York, New York 10104Telephone: (212) 541-2000Facsimile: (212) 541-4630
SETH P. WAXMAN
(pro hac vice)KELLY P. DUNBAR
ALBINAS J. PRIZGINTAS
(pro hac vice)ADAM I. KLEIN
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Avenue, NWWashington, DC 20006Telephone: (202) 663-6000Facsimile: (202) 663-6363
ALAN LEVINE
CELIA GOLDWAG BARENHOLTZ
MICHAEL BLASIE
COOLEY LLPThe Grace Building1114 Avenue of the AmericasNew York, New York 10036Telephone: (212) 479-6000Facsimile: (212) 479-6275
Attorneys for Necessary Third-Party Appellant-Respondent
May 5, 2015
FRIENDS OF PETROSINO SQUARE, by and in the name of its President,
GEORGETTE FLEISCHER, LAGUARDIA CORNER GARDENS, INC., LOWER
MANHATTAN NEIGHBORS’ ORGANIZATION, SOHO ALLIANCE, BOWERY
ALLIANCE OF NEIGHBORS, by and in the name of its Treasurer, JEAN STANDISH,
NOHO NEIGHBORHOOD ASSOCIATION, by and in the name of its Co-Chair
JEANNE WILCKE, and WASHINGTON PLACE BLOCK ASSOCIATION, by and in the
name of its president, HOWARD NEGRIN,
Petitioners-Respondents-Appellants,
For a Judgment Pursuant to CPLR Article 78
—against—
ROSE HARVEY, as Acting Commissioner of the New York State Office of Parks,
Recreation and Historic Preservation, THE NEW YORK STATE OFFICE OF PARKS,
RECREATION AND HISTORIC PRESERVATION, PAUL T. WILLIAMS, JR., as the
President and the Chief Executive Officer of Dormitory Authority of the State of
New York, DORMITORY AUTHORITY OF THE STATE OF NEW YORK,
Respondents,
VERONICA M. WHITE, as Commissioner of the New York City Department of
Parks and Recreation, THE NEW YORK CITY DEPARTMENT OF PARKS AND
RECREATION, JANETTE SADIK-KHAN, as Commissioner of the New York City
Department of Transportation, THE NEW YORK CITY DEPARTMENT OF
TRANSPORTATION, MATHEW M. WAMBUA, as Commissioner of the New York
City Department of Housing Preservation and Development, and THE NEW YORK
CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, AMANDA
BURDEN, as Director of the New York City Department of City Planning and Chair
of the New York City Planning Commission, THE NEW YORK CITY PLANNING
COMMISSION, THE NEW YORK CITY DEPARTMENT OF CITY PLANNING,
CHRISTINE QUINN, as Speaker of the New York City Council, THE NEW YORK
CITY COUNCIL, THE CITY OF NEW YORK,
Respondents-Appellants-Respondents,
—and—
NEW YORK UNIVERSITY,
As a Necessary Third-Party Appellant-Respondent.
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CORPORATE DISCLOSURE STATEMENT
Under 22 N.Y.C.R.R. § 500.1(f), Necessary Third-Party Appellant-
Respondent New York University states that it is a not-for-profit education
corporation approved by the Regents of the University of the State of New York
with no corporate parents and identifies the following entities as subsidiaries or
affiliates:
34 Street Cancer Center, Inc.
CCC 550 Insurance SCC
Harold Acton Trust
Hortense Acton Trust
International Art Fund
Institute of Fine Arts Foundation
Jurodin Fund
La Pietra Corporation
Metrotech
National Center on Philanthropy and the Law
New York University in Abu Dhabi Corporation
New York University in Afghanistan
New York University School of Business (Leonard N. Stern School of Business) Foundation
Niu Da Educational Information Consulting (Shanghai) Co., Ltd.
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NYU Hospitals Center
NYU Imaging, Inc.
NYU in London
NYU Langone Health System
NYU Real Estate Corporation
NYU School of Law Foundation
NYU School of Law Housing Assistance Corporation
NYU School of Law Recruitment Assistance Corporation
NYU School of Law Faculty Retention Assistance Corporation
NYU in Tel-Aviv Ltd.
NYU Tisch School of the Arts, Asia, Ltd.
Polytechnic Holding Corporation
Washington Square Legal Services, Inc.
NYU Shanghai
NYU School of Medicine VEBA Trust
NYU VEBA Trust
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TABLE OF CONTENTS
Page CORPORATE DISCLOSURE STATEMENT .......................................................... i
TABLE OF AUTHORITIES .................................................................................... vi
INTRODUCTION ..................................................................................................... 1
QUESTIONS PRESENTED ...................................................................................... 5
COUNTER-STATEMENT OF FACTS AND PROCEDURAL HISTORY ............. 6
I. NYU AND THE GENESIS OF THE CORE PLAN .................................................. 6
A. NYU’s Efforts To Address A Severe Space Shortfall .......................... 6
B. The Superblocks .................................................................................... 9
II. THE DOT STRIPS AND THE CORE PROJECT .................................................... 11
A. New York’s Legal Treatment Of Streets ............................................ 13
B. The DOT Strips ................................................................................... 15
C. Failed Attempts To Dedicate The DOT Strips As Parkland ............... 18
D. Development And Use Of The DOT Strips ........................................ 19
1. The North LaGuardia Strip ....................................................... 20
2. The South LaGuardia Strip ....................................................... 22
3. The North Mercer Strip ............................................................. 24
4. The South Mercer Strip ............................................................. 26
E. NYU’s Core Project ............................................................................ 27
F. Review And Approval Of The Core Project ....................................... 29
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III. PROCEEDINGS BELOW ..................................................................................... 34
A. The Article 78 Proceeding ................................................................... 34
B. The Appellate Division’s Review ....................................................... 36
SUMMARY OF ARGUMENT ............................................................................... 38
ARGUMENT ........................................................................................................... 42
I. THE LANDOWNER’S INTENT—NOT THE PUBLIC’S USE—DETERMINES WHETHER LAND HAS BEEN IMPLIEDLY DEDICATED ................. 42
A. Proponents Of Implied Parkland Must Demonstrate Both Dedication By The Landowner And Acceptance By The Public ................................................................................................... 43
1. Intent to dedicate ....................................................................... 44
2. Acceptance ................................................................................ 47
B. Appellants’ Proposed Legal Standard Is Deeply Flawed.................... 48
1. Appellants’ proposed rule is unsupported by this Court’s implied-dedication case law ......................................... 48
2. Appellants’ rule would have profoundly negative consequences ............................................................................. 55
3. Appellants’ rule is singularly inappropriate in this case, where the landowner is the City and the property at issue is a street ....................................................................... 59
II. THE APPELLATE DIVISION CORRECTLY HELD THAT APPELLANTS FAILED TO PROVE THE CITY’S UNEQUIVOCAL INTENT TO DEDICATE ANY PART OF THE DOT STRIPS AS PARKLAND ............................................. 63
A. Appellants Failed To Prove The City’s Unequivocal Intent To Dedicate Any Part Of The DOT Strips As Parkland ..................... 64
1. The North LaGuardia Strip ....................................................... 64
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2. The South LaGuardia Strip ....................................................... 70
3. The North Mercer Strip ............................................................. 72
4. The South Mercer Strip ............................................................. 74
B. Appellants’ Criticisms Of The Appellate Division Are Misplaced ............................................................................................ 76
1. The Appellate Division did not disregard the public’s use of the DOT Strips ............................................................... 77
2. The Appellate Division did not improperly rely on “arcane” evidence ..................................................................... 78
3. Mapping and declining to demap are proper and significant evidence of the City’s intent ................................... 82
4. The Appellate Division’s ruling does not threaten the public trust doctrine .................................................................. 85
III. THE COURT SHOULD REMIT OR REJECT APPELLANTS’ REMEDY ARGUMENTS ................................................................................................... 88
A. Even If Any Part Of The DOT Strips Is Parkland, The City Complied With SEQRA ...................................................................... 89
B. Appellants’ Request For A Complete Injunction Or A Zipper-Only Remedy Should Be Rejected .......................................... 93
CONCLUSION ........................................................................................................ 96
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TABLE OF AUTHORITIES
CASES Page(s)
1300 Franklin Avenue Members, LLC v. Board of Trustees of Incorporated Village of Garden City, 62 A.D.3d 1004 (2d Dep’t 2009) .............................................................................................................. 35
Ames v. Johnston, 169 A.D.2d 84 (3d Dep’t 1991) ................................................. 35
Angiolillo v. Town of Greenburgh, 290 A.D.2d 1 (2d Dep’t 2001) ........................ 45
Bissell v. New York Central Railroad Co., 23 N.Y. 61 (1861) .......................... 47, 52
Bronx Committee for Toxic Free Schools v. New York City School Construction Authority, 20 N.Y.3d 148 (2012) ............................................. 92
Capruso v. Village of Kings Point, 23 N.Y.3d 631 (2014) ...................................... 86
Chinese Staff & Workers Association v. City of New York, 68 N.Y.2d 359 (1986) ............................................................................................................. 92
Ciaccia v. Moore, 184 A.D.2d 1075 (4th Dep’t 1992) ............................................ 45
Cook v. Harris, 61 N.Y. 448 (1875) ................................................43, 44, 50, 53, 83
Crawford v. Liz Claiborne, Inc., 11 N.Y.3d 810 (2008) ......................................... 89
De Salvio v. McMorran, 270 N.Y.S.2d 651 (Sup. Ct. N.Y. County 1965) ............. 17
Douglaston & Little Neck Coalition v. Sexton, 145 A.D.2d 480 (2d Dep’t 1988) ........................................................................................................ 64, 65
E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359 (1988) ................................... 62, 63
Flack v. Village of Green Island, 122 N.Y. 107 (1890) ........... 43, 44, 48, 51, 52, 65
Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 (2001) ............................................................................................................. 86
Gavigan v. McCoy, 37 N.Y.2d 548 (1975) .............................................................. 61
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Harris v. Hirsh, 86 N.Y.2d 207 (1995) ................................................................... 89
Henry Walker Park Ass’n v. Mathews, 91 N.W.2d 703 (Iowa 1958) ..................... 82
Holdane v. Trustee of Village Cold Spring, 21 N.Y. 474 (1860) .....................passim
Hotel Employees & Restaurant Employees Union v. City of New York Department of Parks & Recreation, 311 F.3d 534 (2d Cir. 2002) .......... 67, 68
Hunter v. Trustees of Sandy Hill, 6 Hill 407 (Sup. Ct. Judicature 1844) .......... 44, 52
In re Gillen Place, 304 N.Y. 215 (1952) ................................................................. 13
In re Prospect Street, 135 N.Y.S 1034 (Sup. Ct. Queens County 1912)................. 84
Lazore v. Board of Trustees Village Massena, 191 A.D.2d 764 (3d Dep’t 1993) .............................................................................................................. 68
Lehigh & Hudson River Railway Co. v. Village of Warwick, 164 A.D. 55 (2d Dep’t 1914) .............................................................................................. 83
Levine v. Village of Island Park Board Zoning Appeals, 95 A.D.3d 1125 (2d Dep’t 2012) .............................................................................................. 83
Levy v. Schreyer, 177 N.Y. 293 (1904) ................................................................... 95
London v. Art Commission of New York, 190 A.D.2d 557 (1st Dep’t 1993) ........................................................................................................ 94, 95
Matter of City of New York, 239 N.Y. 119 (1924) ............................................ 45, 63
Matter of Jackson v. New York State Urban Development Corp., 67 N.Y.2d 400 (1986) .............................................................................. 89, 93
New York Central & Hudson River Railroad Co. v. Village of Ossining, 141 A.D. 765 (2d Dep’t 1910) ................................................................. 49, 78
New York City Coalition to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337 (2003) .................................................................................. 92
New York State Public Employees Federation, AFL-CIO by Condell v. City of Albany, 72 N.Y.2d 96 (1988) ............................................................. 87
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Niagara Falls Suspension Bridge Co. v. Bachman, 66 N.Y. 261 (1876) ................................................................................................. 43, 44, 76
Parkview Associates v. City of New York, 71 N.Y.2d 274 (1988) ........................... 61
Pearlman v. Anderson, 307 N.Y.S.2d 1014 (Sup. Ct. Nassau County 1970) ........................................................................................................ 56, 68
People v. Baldwin, 197 A.D. 285 (3d Dep’t 1921) .................................................. 60
People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394 (1937) ..... 50, 51, 65, 84
People v. Harris, 57 N.Y.2d 335 (1982) ................................................................. 54
People v. Loehfelm, 102 N.Y. 1 (1886) ................................................. 47, 50, 53, 84
People v. Underhill, 144 N.Y. 316 (1895) ............................................................... 47
Powell v. City of New York, 85 A.D.3d 429 (1st Dep’t 2011) ..........................passim
Putnam Valley Lumber & Supply Corp. v. Duell, 82 N.Y.S.2d 407 (Sup. Ct. Westchester County 1948) ....................................................................... 47
Riverview Partners, L.P. v. City of Peekskill, 273 A.D.2d 455 (2d Dep’t 2000) ......................................................................37, 42, 49, 54, 64
Roosevelt Island Residents Ass’n v. Roosevelt Island Operating Corp., 7 Misc. 3d 1029(A) (Sup. Ct. N.Y. County 2005) ........................................ 46
Scruggs-Leftwich v. Rivercross Tenants’ Corp., 70 N.Y.2d 849 (1987) ................. 61
Speir v. Town of New Utrecht, 2 N.Y.S. 426 (Gen. Term 2d Dep’t 1888).............. 45
Thomas W. Finucane Co. v. Board of Education of Rochester, 190 N.Y. 76 (1907) ........................................................................................................ 52
Tomlinson v. Town of Southampton, 143 A.D. 487 (2d Dep’t 1911) ...................... 84
Union Square Park Community Coalition, Inc. v. New York City Department of Park & Recreation, 22 N.Y.3d 648 (2014) ........................... 75
Village of Benld v. Dorsey, 142 N.E. 563 (Ill. 1924) .............................................. 82
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Village of Croton-On-Hudson v. County of Westchester, 38 A.D.2d 979 (2d Dep’t 1972) ......................................................................42, 49, 52, 53, 64
Winston v. Village of Scarsdale, 170 A.D.2d 672 (2d Dep’t 1991) ........................ 63
STATUTES, RULES, AND REGULATIONS
C.P.L.R. § 409 .............................................................................................................. 35 § 7804 ............................................................................................................ 35 § 5712 ............................................................................................................ 69
6 N.Y.C.R.R. § 617.3 ........................................................................................................... 94 § 617.7 ........................................................................................................... 89 § 617.9 ........................................................................................................... 93
N.Y. Gen. City Law § 20 .......................................................................................................... 13, 87 § 29 .................................................................................................... 13, 17, 65
N.Y.C. Admin. Code § 1-112 ..................................................................................................... 13, 66 § 5-337 ............................................................................................... 13, 62, 65 § 5-430 ..................................................................................................... 13, 66 § 5-432 ............................................................................................... 13, 14, 65 § 25-101 ................................................................................................... 17, 65
N.Y.C. Charter § 197-c ...................................................................................14, 19, 62, 65, 85 § 197-d ............................................................................................... 14, 62, 65 § 198 .............................................................................................................. 79 § 199 .................................................................................................. 19, 62, 85 § 383 .................................................................................................. 13, 62, 65 § 2903 ............................................................................................................ 14
NEW YORK ATTORNEY GENERAL OPINIONS
N.Y. Op. Atty. Gen. No. 84-15, 1984 WL 186566 (Feb. 22, 1984) ........................ 55
N.Y. Op. Atty. Gen. No. 84-42, 1984 WL 186576 (Sept. 4, 1984) ......................... 55
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N.Y. Op. Atty. Gen. No. 2011-7, 2011 WL 3102603 (June 30, 2011) ................... 55
OTHER AUTHORITIES
Ballon, Hillary & Kenneth Jackson, Robert Moses and the Modern City, The Transportation of New York City (2007) ................................................ 17
CEQR Technical Manual (2010) ............................................................................. 90
Editorial, Let N.Y.U. Expand in Its Backyard, N.Y. Times, Apr. 1, 2012, at SR 12 .......................................................................................................... 34
Editorial, NYU’s grand plan, N.Y. Daily News, Mar. 19, 2012, at 26 .................... 34
11A McQuillin, Eugene, The Law of Municipal Corporations (3d ed. 2009) ...................................................................................................... passim
43 N.Y. Jur. 2d Dedication (2007) ........................................................................... 63
67A N.Y. Jur. 2d Injunctions (2010) ........................................................................ 95
NYC Plaza Program, http://www.nyc.gov/html/dot/html/pedestrians/nyc-plaza-program.shtml ...................................................................................... 57
NYC Plaza Program Sites, http://www.nyc.gov/html/dot/html/pedestrians/publicplaza-sites.shtml................................................................................... 57
Restatement (Third) of Property: Servitudes (2000) ............................................... 60
4 Tiffany, Herbert Thorndike, The Law of Real Property (3d ed. 1975) ........ 47, 49, 78
INTRODUCTION
For more than 150 years, this Court has held that a landowner’s intent
determines whether land has been impliedly dedicated to public use. The standard
for establishing such intent is exacting: For a court to find an implied dedication,
“[t]he owner’s acts and declarations should be deliberate, unequivocal and
decisive, manifesting a positive and unmistakable intention to permanently
abandon … property to the specific public use.” Holdane v. Trustees of Vill. of
Cold Spring, 21 N.Y. 474, 477-478 (1860) (emphases added).
Public use of the property may be relevant to the public’s acceptance of a
dedication of property—a separate and distinct element of the analysis—and
sometimes may be one piece of circumstantial evidence of the owner’s intent. But
permissive public use cannot establish a landowner’s intent to “permanently
abandon” property to that use. That is especially so where there is substantial
evidence that the landowner did not intend to irrevocably dedicate his property.
This Court has never deviated from insisting upon unequivocal evidence of a
landowner’s intent to dedicate, and with good reason. Stripping a landowner of his
or her property rights and subjecting his or her future decisions about the land to
the veto power of the State Legislature—which has sole authority to alienate land
that is deemed to be parkland—is a grave measure and, as this Court has
recognized, ought not be taken where there is any doubt about the landowner’s
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intentions. Equally important, requiring “a positive and unmistakable intention”
before finding a dedication encourages the deployment of private or municipal land
for public use and recreation. The rigorous standard applied to implied dedication
permits private and government landowners to beautify their property and open it
temporarily for public use, while resting assured that they can still use that land for
another purpose should they need to do so. The result is more green space open to
the public, more beautiful streets and squares, and far more land available for
gardening and play.
A contrary rule—under which land is dedicated parkland if some members
of the public think it is and use it as such—would put all of this at risk. New York
City beautifies and allows gardening, play, and simple relaxation on thousands of
open spaces that are not dedicated parks. But if public use or perception alone
were enough to irrevocably dedicate those spaces as parks, New York City and
other municipalities across the State would confront a sobering new reality: Allow
the public to play, garden, or relax on open spaces—or even beautify plazas and
walkways, as the City did here—and risk losing control over that land, no matter
how badly the municipal government may need it one day for a school, a hospital,
a public-transit line, or some other public purpose. Public officials will not run
that risk. The prudent course will be to end park-like activity on non-park land.
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This case is about four city streets owned by the City of New York and
maintained under the jurisdiction of its Department of Transportation (the “DOT
Strips”). The City acquired the Strips to hold “in trust for street purposes,” and
they have been mapped as streets on the official map of the City for almost 50
years. They have always been used as streets—which under New York law
includes a “sidewalk,” “concourse,” “square,” or “place.” Several attempts to
demap the Strips as streets, using the ordinary municipal process in place for doing
so, have failed. And where the City lent space on the Strips for temporary
recreational use, it expressly reserved its right to retake the property or expressly
disclaimed any intention to dedicate the space as parkland.
Appellants challenged the street status of the Strips and contended that they
were impliedly dedicated as parkland through long public use for recreational
purposes, and thus could not be encumbered by New York University’s expansion
project. Applying the correct legal standard to facts not materially disputed, the
Appellate Division held that the City did not intend—much less unequivocally
intend—to dedicate the Strips as parkland. In the face of the City’s explicit
disclaimers that it did not intend to create dedicated parkland and its many official
acts showing that it intended the Strips to remain streets, the evidence pointed to by
Appellants—consisting almost entirely of public use and a few signs—was, at the
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very best, ambiguous and circumstantial, and therefore “too equivocal and
indecisive” to establish an intent to dedicate. Holdane, 21 N.Y. at 477.
Appellants propose to set aside the centuries-old framework established by
this Court in favor of a new rule, under which “long continuous public use … is the
paramount determinant of implied dedication as parkland.” Appellants Br. 32.
Appellants’ rule is badly misconceived. It would divorce the implied-dedication
analysis from the abiding common-law principle that a landowner’s intent controls
and would have seriously harmful consequences for land-use decisionmaking in
the State. What is more, the rule would be manifestly indefensible here, as applied
against the City of New York with respect to land mapped as street. As Appellants
acknowledge, their emphasis on long continuous public use follows from their
view that implied dedication is simply a form of “estoppel.” Id. at 49. But
estoppel typically does not apply against a government landowner; the public’s use
of city property for recreational purposes cannot estop the City from putting that
property to the use that its government deems most appropriate. And no authority
holds that land mapped as a street—which, like parkland, is held in trust for the
public—can be appropriated to a different use based on public use or perception
alone.
Appellants announce (at 1) at the outset of their brief that the “continued
vitality” of the public trust doctrine is at stake here. Not so. The public trust
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doctrine ensures that actual parkland—expressly set aside or impliedly dedicated—
cannot be alienated absent the approval of the State Legislature. But that is not the
issue here; this case instead presents the antecedent question of whether the four
city-owned parcels are parkland at all. In any event, it is Appellants’ reformulation
of the implied-dedication doctrine—and not the Appellate Division’s faithful
application of it—that would imperil New York’s green spaces, playgrounds, and
gardens.
The judgment below should be affirmed.
QUESTIONS PRESENTED
1. Whether a municipality can be found to have impliedly dedicated its
property as parkland where the evidence does not establish an unequivocal intent
to do so.
The Appellate Division correctly answered—“No.”
2. Whether Appellants failed to carry their burden of proving New York
City’s “unequivocal” intent to dedicate irrevocably four parcels of city-owned
property as parkland, where the City acquired the property for street purposes; the
City officially mapped the property as streets; the City repeatedly rejected public
efforts to change that legal status over decades; the public had used the parcels
consistent with their legal status as streets; and the contrary evidence of intent to
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dedicate the parcels as parkland related almost entirely to the public’s use of the
land and was at best equivocal.
The Appellate Division correctly answered—“Yes.”
3. If the Court concludes that any of the city-owned parcels has been
dedicated as parkland and if the Court reaches Appellants’ remedy arguments,
rather than remitting those arguments to the Appellate Division:
Whether the Court should, as Appellants request, annul the City’s approval
of NYU’s Core Project and issue an injunction broader than necessary to protect
those parcels determined to be parkland.
The Appellate Division did not reach the issue.
COUNTER-STATEMENT OF FACTS AND PROCEDURAL HISTORY
I. NYU AND THE GENESIS OF THE CORE PLAN
A. NYU’s Efforts To Address A Severe Space Shortfall
New York University has been a vital part of the fabric of Greenwich
Village since 1835, when it purchased its first building on the east side of
Washington Square Park. A.2:343 (FEIS); A.7:2601 ¶ 17 (Brown Aff.).1 From
those small beginnings 180 years ago—and with the Washington Square campus as
its core—NYU has now become a world-renowned not-for-profit educational and
1 Citations styled “A.X:Y” refer to Appellants’ Appendix, Volume X, Page Y.
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research institution and a vital contributor to New York City’s fabric and way of
life. A.7:2596 ¶ 7, 2601 ¶ 17 (Brown Aff.); A.2:343 (FEIS).
Regionally oriented with a largely commuter-based student population until
the 1980s, NYU over the last generation has transformed itself into a major, urban
research university in the top national ranks, recruiting students from every state in
the nation and over 130 countries. A.2:343 (FEIS); A.7:2601 ¶ 17 (Brown Aff.).
It is now the largest private university in the United States, with approximately
55,000 students in 18 schools and institutes. A.2:343 (FEIS); A.7:2601 ¶ 17
(Brown Aff.). Critically, however, NYU’s growth over the past 30 years—in
student population, faculty hires, and institutional demands—has outstripped its
physical facilities. A.2:345-347 (FEIS); A.7:2596 ¶ 7 (Brown Aff.). Today,
NYU’s continued vitality is threatened by a severe lack of physical space. See,
e.g., A.2:345-347 (FEIS); A.7:2596 ¶ 7 (Brown Aff.); A.7:2772 (NYU Transition
Team, Academic Space Committee, Final Report); A.7:2894 (NYU Framework
2031).
Indeed, the gulf between NYU and its peer institutions in this respect is
wide: NYU’s academic space per student is less than half the average of 17
comparable institutions. A.7:2596 ¶ 7 (Brown Aff.).2 By any measure, NYU has
2 In 2010, NYU averaged approximately 313 gross square feet of total space per student, as compared to an average of 627 gross square feet per of total space student among 17 peer institutions. A.2:220-221 (FEIS).
- 8 -
far less space than it needs. Unless NYU can expand its facilities, its ability to
carry out its academic mission, to maintain its reputation of academic excellence,
and to contribute fully to the City’s economy, “‘creative spirit[,] and intellectual
excellence’” will be seriously impaired. A.7:2604 ¶ 23 (Brown Aff.) (quoting
statement of Lee Bollinger); see A.2:350 (FEIS); A.7:2772 (NYU Transition
Team, Academic Space Committee, Final Report).
Faced with this critical shortfall, NYU began a comprehensive study of its
space needs in 2007. A.7:2596 ¶ 8, 2624 ¶ 56 (Brown Aff.). NYU ultimately
determined, with the assistance of a team of outside experts, that it needed to add
six million gross square feet of space over two and a half decades to remedy its
shortage. A.7:2596 ¶ 8 (Brown Aff.). Recognizing that it was neither feasible nor
desirable to develop six million square feet in Greenwich Village, NYU undertook
an analysis of where it might add space in other parts of the City. See A.7:2628
¶ 61 (Brown Aff.). The analysis identified two locations that made sense
academically: the First Avenue Health Corridor in Manhattan, already home to
NYU’s major medical and dental complexes, and downtown Brooklyn, where its
Polytechnic Institute is located. A.7:2628 ¶ 61 (Brown Aff.). In its planning,
NYU decided that almost two-thirds of its anticipated growth would occur in
locations outside the Village. See A.7:2629 ¶ 62 (Brown Aff.). It also recognized,
however, that a critical mass needed to be at NYU’s Washington Square core—
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where most of its schools, colleges, and major institutes are located, as well as its
major academic infrastructure of classrooms, libraries, athletic facilities, and
labs—or in the immediately surrounding neighborhood. See A.7:2596-2597 ¶ 8,
2628-2629 ¶ 61 (Brown Aff.).
NYU developed a long-term strategic plan to address its space needs. That
plan includes the “Core Project,” a phased plan with discrete segments designed to
put approximately one-third of the requisite new space at the University’s
Washington Square core. A.7:2597 ¶ 9 (Brown Aff.). After assessing the limited
opportunities for development in Greenwich Village, NYU determined that the
best place to expand was on two “Superblocks”—land to which NYU already
holds legal title and on which university buildings are already located. Id.
B. The Superblocks
The Superblocks were created in the 1950s as part of an Urban Renewal
Plan adopted by the Board of Estimate, the City Council’s predecessor for budget
and land-use issues. See A.3:999 (NYU ULURP App.); A.7:2917-2993 (1954
Urban Renewal Plan); A.6:2503 ¶ 14 (Olivieri Aff.). Under that plan, six city
blocks were demolished and combined into two larger “Superblocks.” A.3:999
(NYU ULURP App.); A.6:2503 ¶ 14 (Olivieri Aff.). The Superblocks are bounded
by West 3rd Street to the north, Houston Street to the south, LaGuardia Place to the
west, and Mercer Street to the east; Bleecker Street, running east-west, divides the
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North Superblock from the South Superblock. See, e.g., A.7:2684 (Pre-Core
Project Diagram).
In 1955, the City sold the Superblocks to a private developer. A.1:18 (Trial
Op.); A.7:2620¶ 46 (Brown Aff.). The developer subsequently built two large
residential buildings and a retail building on the North Superblock and a
supermarket on the South Superblock. A.1:18 (Trial Op.). With an eye toward the
future, NYU bought most of the North and South Superblocks from the developer
in 1963, and acquired the last remaining piece (the supermarket) in 2001.
A.7:2621-2622 ¶¶ 47-49 (Brown Aff.). NYU currently owns all of the North and
South Superblocks. Id. ¶ 51.
The North Superblock contains two apartment buildings built by the private
developer in the 1950s—both 17 stories high and approximately 600 feet long—
separated by an internal courtyard and bounded on the west side by a small retail
strip mall, the so-called “Retail Building.” A.1:19 (Trial Op.); A.2:644-652
(FEIS). The apartment buildings are occupied largely by NYU faculty and
affiliates. See A.7:2621-22 ¶ 51 (Brown Aff.). The South Superblock has the
supermarket on its northwest corner, NYU’s Coles Sports and Recreation Center
on the east, and three 30-story high-rise residential buildings in the middle. A.1:21
(Trial Op.). Two of the residential buildings house NYU faculty; the third is a
Mitchell-Lama cooperative. A.7:2621 ¶ 49 (Brown Aff.).
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The buildings on the Superblocks differ starkly from the surrounding
neighborhoods. Unlike the historic brownstones of Greenwich Village or the cast-
iron buildings of SoHo, the Superblocks consist mainly of “large high-rise
buildings set back from the lot lines,” embodying the “tower-in-the-park urban
development model,” popular in the mid-20th century. A.7:2623 ¶ 54 (Brown
Aff.); see A.7:2527 ¶ 14 (Hsu-Chen Aff.). Urban planners have “recognized that
th[is] … model can be isolating and contrary to the goal of creating a vibrant urban
streetscape.” A.7:2623 ¶ 54 n.107 (Brown Aff.); see A.7:2527 ¶ 14 (Hsu-Chen
Aff.). That is the case here: The Superblocks “have become isolated from the rest
of the neighborhood, and their open space—much of which consists of paved areas
and areas enclosed by fences and gates—is neither welcoming, nor well suited for
recreation and leisure.” A.7:2623 ¶ 54 (Brown Aff.).
II. THE DOT STRIPS AND THE CORE PROJECT
This appeal is not about the Superblocks themselves. Rather, it is about four
parcels located on narrow strips of city-owned land abutting the Superblocks—the
North Mercer Strip and the South Mercer Strip, comprising the westernmost part of
Mercer Street; and the North LaGuardia Strip and the South LaGuardia Strip,
comprising the easternmost part of LaGuardia Place:
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SA.491 (Diagram Showing DOT Strips).3 Appellants claim that four parcels—
namely, “LaGuardia Park” (Appellants’ term, referring to the walkways and plaza
on the North LaGuardia Strip), LaGuardia Corner Gardens (“LCG”), Mercer 3 Citations styled “SA.X” refer to the Supplemental Appendix for Respondents-Appellants-Respondents and Necessary Third-Party Appellant-Respondent, Page X.
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Playground, and the Mercer-Houston Dog Run—are parkland. They are not. They
are on strips of land long mapped as city streets and serve largely as pedestrian
thoroughfares (that is, sidewalks) enabling the public to walk around and into the
Superblocks.
A. New York’s Legal Treatment Of Streets
Some background on the legal treatment of streets, and the jurisdiction of the
relevant city agencies, is useful. Under New York City law, “street” is a
commodious term of art, encompassing all manner of public thoroughfares,
including “[a]ny public street, avenue, road, alley, lane, highway, boulevard,
concourse, parkway, driveway, culvert, sidewalk, crosswalk, boardwalk, viaduct,
square or place.” N.Y.C. Admin. Code § 1-112(13); see also id. § 5-430(4).
Streets and sidewalks are the property of the City, held in trust for the
public. N.Y.C. Charter § 383; N.Y.C. Admin. Code § 5-337(a) (streets “shall be
kept in trust … forever, in like manner as the other streets in the city are and of
right ought to be”); In re Gillen Place, 304 N.Y. 215, 221 (1952) (“[F]or so long as
Gillen Place remained a street it had to be held by the city in trust only for street
uses.”). New York’s General City Law delegates to each city’s legislative body
the decision whether to close or demap a street. N.Y. Gen. City Law §§ 20(7), 29;
see also N.Y.C. Admin. Code § 5-432(a). The process for doing so is set forth by
New York City law and requires, among other things, compensation to adjoining
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property owners who may be adversely affected by street demapping. N.Y.C.
Admin. Code § 5-432(b). Any change to the city map requires public hearings and
approval pursuant to the Uniform Land Use Review Procedure (“ULURP”).
N.Y.C. Charter §§ 197-c, 197-d.
New York City’s Department of Transportation (“DOT”) is charged with
designing, constructing, repairing, maintaining, and regulating public roads,
streets, pedestrian areas, highways, and parkways. N.Y.C. Charter § 2903(b)(1)-
(2); see A.8:3226 ¶ 2 (Forgione Aff.). DOT, however, has long worked
cooperatively with other city agencies, such as the Department of Parks and
Recreation (“DPR”), to beautify and improve streets and other public spaces.
DPR is the City’s principal provider of recreational and athletic facilities and
programs. It manages a portfolio of close to 4,000 properties—the majority of
which consists of non-park land under the jurisdiction of other agencies. A.6:2501
¶¶ 8-9 (Olivieri Aff.); see A.8:3218-3219 ¶ 14 (Benepe Aff.). DPR manages these
properties under a variety of arrangements that benefit the public by allowing DPR
to provide recreational and open space benefits until the agency with primary
jurisdiction needs the property again. A.6:2501-2503 ¶¶ 9-13 (Olivieri Aff.).
Two DPR programs are particularly relevant to this appeal. Greenstreets,
formally established in the mid-1990s, is a joint program between DOT and DPR
intended to convert underutilized streets into green space. A.6:2502-2503 ¶ 12
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(Olivieri Aff.); A.8:3218-3219 ¶¶ 14, 16 (Benepe Aff.). Greenstreets is
administered by DPR, but the property remains under DOT jurisdiction—hence
“the term ‘Greenstreets.’” A.8:3219-3220 ¶ 17 (Benepe Aff.) (emphasis added);
see A.8:3107 ¶ 5 (Hearn Aff.); A.8:3118 ¶ 3 (Horan Aff.); see also, e.g., A.6:2421
(Greenstreet Memorandum of Understanding, Feb. 9, 2007). Through
Greenstreets, DPR has improved hundreds of mapped streets across the City.
A.6:2502 ¶ 12 (Olivieri Aff.). During the time that DPR manages a property, that
property may bear DPR signage or contain other indicia of DPR involvement to
inform the public that the site is currently being managed by DPR and is available
for public use. A.8:3218 ¶ 13 (Benepe Aff.); see also A.6:2501-2503 ¶¶ 9-13
(Olivieri Aff.).
Under the GreenThumb program, DPR provides guidance and oversight to
community gardens, including gardens located on private property. About 600
gardens are part of the program, including gardens under DOT’s jurisdiction.
A.6:2503 ¶ 13 (Olivieri Aff.); see A.8:3220-3221 ¶ 21 (Benepe Aff.). It has long
been DPR’s position that even GreenThumb gardens within its jurisdiction are not
parkland “unless specifically mapped as such.” A.8:3220-3221 ¶ 21(Benepe Aff.).
B. The DOT Strips
The strips at issue here have been continuously mapped as city streets since
1954. See A.1:29 (Trial Op.); see also, e.g., A.6:2503 ¶ 14 (Olivieri Aff.);
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A.7:2619 ¶ 45 (Brown Aff.). As such, they have at all relevant times been within
the property portfolio and jurisdiction of DOT. A.1:115-116 ¶ 58 (Am. Verified
Pet.); see also, e.g., A.6:2500-2501 ¶ 6 (Olivieri Aff.); A6.2058 (The Villager,
June 23-29, 2004) (“all are under the jurisdiction of the city’s Department of
Transportation”). As Appellants acknowledge, “DOT still maintains jurisdiction
over the parcels” today. A.1:115-116 ¶ 58 (Am. Verified Pet.).
The DOT Strips were originally sold in 1955 to the private developer, along
with the rest of the Superblocks. See supra p. 10. That sale, however, was
expressly conditioned on the City’s right to reacquire the Strips for “street
widenings” to meet anticipated future needs. A.6:2363-2365 ¶ 202 (1954 Land
Disposal Agreement); A.6:2504 ¶ 15 (Olivieri Aff.). Specifically, at that time, the
Board of Estimate intended to use the DOT Strips to widen adjacent roadbeds in
connection with plans to extend Fifth Avenue through Washington Square Park to
connect with the then-planned Lower Manhattan Expressway. A.7:2619 ¶ 45
(Brown Aff.); see A.6:2504 ¶ 15 (Olivieri Aff.).
Thus, by public resolution in October 1956, the Board of Estimate approved
a change to the city map to designate the DOT Strips “street[s].” A.6:2341, 2343
(Board of Estimate Cal. No. 90); see A.6:2503-2504 ¶¶ 14-16 (Olivieri Aff.). In
accordance with their status as public streets, the resolution further established
“[s]pecial roadway and sidewalk treatment” for the newly mapped Strips,
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“designed to properly apportion pedestrian and vehicular capacity.” A.6:2341
(Board of Estimate Cal. No. 90). Two months later, in December, the official map
of the City was amended with the filing of a map reflecting the Board of Estimate
resolution—thus officially establishing the DOT Strips as portions of LaGuardia
Place (then known as West Broadway) and Mercer Street. See A.6:2344 (map
alterations approved by Board of Estimate). Under New York law, the official
map of the City is “final and conclusive” as to the location and width of city
streets. N.Y.C. Admin. Code § 25-101 (“City map to be conclusive”); see also
N.Y. Gen. City Law § 29 (similar).
In 1967 and 1968, upon the City’s exercise of its rights in accordance with
the conditions of sale, the private developer and NYU executed deeds conveying
the Strips to the City. See A.8:3129 (Seventh Washington Square Owning
Corporation Deed, Nov. 13, 1967); A.6:2345 (NYU Deed of Cession, Mar. 15,
1968): A.8:3124 (NYU Deed of Cession, Mar. 15, 1968); A.6:2350 (NYU Deed of
Cession, Mar. 20, 1968). By that time, the Lower Manhattan Expressway project
was moribund.4 Despite that—and contrary to Appellants’ suggestion that the
4 Robert Moses’s planned Lower Manhattan Expressway suffered a stinging defeat in 1962, when the Board of Estimate unanimously rejected it. Although the mayor temporarily countermanded that decision in 1965, see De Salvio v. McMorran, 270 N.Y.S.2d 651, 654-655 (Sup. Ct. N.Y. County 1965), public opposition to the project “gain[ed] momentum” in 1967 and 1968, and it was “definitively” abandoned in 1969, Ballon & Jackson, Robert Moses and the Modern City, The Transformation of New York 124-127, 213-214 (2007).
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DOT Strips were mapped as streets only to be used for that project, see Appellants
Br. 11-12—each deed conveyed the Strips to the City to hold “in trust for street
purposes.” A.6:2347; A.6:2352; A.8:3126; A.8:3131.
C. Failed Attempts To Dedicate The DOT Strips As Parkland
Over the course of nearly five decades, there have been numerous
unsuccessful, highly public attempts to have the DOT Strips demapped as streets,
transferred to DPR, and dedicated as parkland.
The Manhattan Borough President made the first failed attempt in 1967.
A.6:2506-2507 ¶¶ 23-25 (Olivieri Aff.); see A.1:167 ¶ 168 (Am. Verified Pet.).
There were other attempts in 1979, A.1:167 ¶ 168 (Am. Verified Pet.); in the mid-
1990s by the local community board, Community Board 2, and Friends of
LaGuardia Place, A.6:2507-2509 ¶¶ 26-32 (Olivieri Aff.); and then again in the
mid-2000s, A.1:167 ¶ 168 (Am. Verified Pet.); A.8:3233-3234 ¶¶ 17-21 (Forgione
Aff.). Most recently, in 2010, at least five of the Appellants here sent a letter to
then-Mayor Bloomberg acknowledging these prior failed attempts and again
requesting “remapping the land from roadbed to parkland.” A.6:2493 (Letter from
Community Action Alliance, Aug. 26, 2010); see A.1:168 ¶ 169 (Am. Verified
Pet.). This request, like the others before it, did not succeed.
Appellants and their amici suggest that these efforts were unsuccessful
simply because NYU opposed demapping, and they imply that there was
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something improper in its opposition. Appellants Br. 62-63; see also New York
State Legislators Amicus Br. 20; New York Civic Amicus Br. 31-32. But they
ignore that the law requires notice to adjacent landowners of any attempt to demap
a street, see N.Y.C. Charter §§ 197-c, 199, precisely because demapping can
impair their property rights (e.g., by making the property landlocked or more
difficult to develop). Here, the DOT Strips run directly alongside NYU’s property
and are used to access a number of NYU buildings, as DOT has recognized. See,
e.g., A.8:3243 (DOT Letter, May 9, 2006). NYU was thus well within its statutory
rights in objecting, and did so to protect interests that City law recognizes as
legitimate. See, e.g., A.6:2417 (Letter from NYU, Mar. 22, 1996); see also
A.6:2059 (The Villager, June 23-29, 2004).
Appellants’ and their amici’s attempt to impugn that decision is simply a
disagreement with New York’s choice to accommodate the legitimate concerns of
the owners of streetside lots. In any event, the City could have pursued demapping
without NYU’s consent. Ultimately, the City—and the City alone—decided not to
demap the streets, notwithstanding repeated requests to do so. See New York
Civic Amicus Br. 31 (“the City determined” not to demap the streets).
D. Development And Use Of The DOT Strips
Appellants blithely claim that the “public never used [the DOT Strips] as
streets.” Appellants Br. 12. That statement rests on an erroneous view of what a
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street is under New York law, see supra pp. 13-14, and is entirely unsupported by
the record. Despite various efforts to beautify and improve the Strips, they have
always principally functioned as thoroughfares, enabling pedestrians to walk along
the Superblocks and enter buildings located on the Superblocks. A.8:3310 ¶ 2
(Brown Reply Aff.). And the law makes clear that pedestrian thoroughfares are
“streets.” See supra p. 13.
1. The North LaGuardia Strip
The North LaGuardia Strip has always served as a pedestrian thoroughfare.
To be sure, steps have been taken to beautify it. In the mid-1980s, a community
group called Friends of LaGuardia Place began to improve the North LaGuardia
Strip—at the time, “little more than a barren patch of dirt and gravel.” A.8:3310
¶ 4 (Brown Reply Aff.); see also A.8:3102 ¶ 6 (Gerson Aff.); A.8:3109 ¶ 12
(Hearn Aff.). In between the two parallel walkways that run north-south within the
Strip, the community group created curved walkways, landscaped with trees and
ivy enclosed by metal fencing, cutting diagonally across the Strip. A.8:3310-3311
¶¶ 4-5 (Brown Reply Aff.). These paved walkways make it easier for pedestrians
to access the Retail Building on the North Superblock, and they provide pleasant
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paths for traversing the Strip. Id.; see also A.8:3316-3319 (photographs of the
North LaGuardia Strip).5
Notwithstanding these improvements, nothing about the North LaGuardia
Strip invites or is consistent with recreational use, other than walking or standing.
With the limited exception of Adrienne’s Garden (discussed below), the Strip does
not have any seating areas or areas for play or recreation. A.8:3311-3312 ¶¶ 5-7
(Brown Reply Aff.); see also A.8:3316-3319 (photographs of the North LaGuardia
Strip).
Adrienne’s Garden is a toddler playground on the northern part of the Strip,
see A.8:3093 (The Villager, Sept. 23-29, 2010), funded by contributions from a
community group, NYU, and the City, A.8:3312 ¶ 7 (Brown Reply Aff.); see
A.6:2516 ¶ 51 (Olivieri Aff.). Ground was broken for Adrienne’s Garden on
September 15, 2010, and it opened in 2013—after the City’s approval of the Core
Project.
5 The community group also commissioned a statue of Fiorello LaGuardia, paid for with private donations and dedicated in 1994. A.8:3096 (Screenshot of DPR Webpage, “Fiorello La Guardia Statue”); A.8:3310 ¶ 4 (Brown Reply Aff.). The statue sits in a paved square at the center of the North LaGuardia Strip, directly in front of the Retail Building. See A.8:3318 (photographs of LaGuardia statue). Customers must cross the North LaGuardia Strip to enter the Retail Building’s shops. See id.; A.8:3311 ¶ 5 (Brown Reply Aff.). The LaGuardia statue will be preserved and restored after construction. A.3:806 (Sexton letter to Borough President Stringer).
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Adrienne’s Garden was developed under the City’s Greenstreets program,
which, as discussed above, is intended to temporarily convert underutilized streets
into green space. A.6:2516 ¶ 51 (Olivieri Aff.). Adrienne’s Garden was developed
under a formal Memorandum of Understanding establishing that the site is
temporary and “not intended to be formal or implied dedicated parkland.”
A.6:2421 (Greenstreet Memorandum of Understanding Between DOT and DPR,
Feb. 9, 2007); see A.6:2492 ¶ 1(l) (First Amendment to Greenstreet Memorandum
of Understanding, Aug. 26, 2009). Because Adrienne’s Garden is part of the
Greenstreets program, it bears signage reflecting the joint management of DPR and
DOT. A.5:2014 (photograph of sign).
2. The South LaGuardia Strip
Like the North LaGuardia Strip, the South LaGuardia Strip is a pedestrian
thoroughfare, with paved parallel walkways running north-south. A.8:3312 ¶ 8
(Brown Reply Aff.); see A.8:3320-3321 (photographs of the South LaGuardia
Strip).
Appellants ignore most of the Strip and instead focus solely on LCG, a
community garden at the north end of the Strip, which is administered under the
City’s GreenThumb program. A.8:3313 ¶ 10 (Brown Reply Aff.); A.8:3221 ¶ 22
(Benepe Aff.). The garden is surrounded on each side by pedestrian walkways,
and it is enclosed by a high chain link fence that is gated and locked. See
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A.8:3312-3313 ¶¶ 8, 10 (Brown Reply Aff.); A.8:3320 (photographs of LCG).
The garden is run by a private organization called LaGuardia Corner Gardens Inc.
(“LCG Inc.”), which restricts access to the space. A.6:2054 (LCG Fact Sheet).
Unlike public parks—“generally open every day of the year from dawn to dusk (or
later),” A.8:3221 ¶ 21 n.1 (Benepe Aff.)—the garden is open to the public only on
a limited basis depending on the season, see id.; A.8:3313 ¶ 10 (Brown Reply
Aff.).
In 1981, LCG Inc. sought a lease from DOT to develop the garden on the
Strip. A.8:3257-3258 (DOT Letter, Mar. 30, 1981). DOT agreed to a yearly lease,
renewable only on the Department’s consent. Id. DOT’s letter referred to the
property as a “[s]idewalk” under its “jurisdiction,” and required restoration of the
garden at the conclusion of the lease “in a manner acceptable to” the Department.
A.8:3257. Subsequent renewals refer to the property as “Bed Of Street.” E.g.,
A.8:3254 (Lease Renewal Certificate, Oct. 9, 1992); A.8:3260 (GreenThumb
Garden License, June 5, 1995).
The formalized arrangement between DOT and LCG Inc. was at some point
changed from a lease to a license. The license continues to refer to the property as
a “Bed of Street,” states that DOT is the “fee owner” of the premises, and makes
clear that occupancy is “on an interim basis, pending the future development or
other use of the Premises.” A.6:2477 (Revocable License Agreement, Jan. 7,
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2009). In addition, the license states on its face that the agreement between DOT
and LCG Inc. “does not … indicate any intention to dedicate the Premises for park
use.” A.6:2481. Consistent with these legal agreements, LCG Inc.’s 2011
“Factsheet” identifies DOT as the owner of the garden. A.6:2054.6
3. The North Mercer Strip
Until the early 1990s, the North Mercer Strip was a “barren space used by
the City as a staging area for nearby construction and infrastructure projects.”
A.8:3313 ¶ 12 (Brown Reply Aff.); see A.8:3183 ¶ 3 (Papadeas Aff.). When the
City stopped using that space for storage, community members advocated for a
playground. A.8:3313-3314 ¶ 12 (Brown Reply Aff.). In 1991, a community
organization took the lead and introduced plans to create what is known as Mercer
Playground. Id.; see A.1:107 ¶ 31 (Am. Verified Pet.). Mercer Playground was
designed to accommodate bicycle and skateboard use and is almost entirely paved.
A.8:3314 ¶ 14 (Brown Reply Aff.); see A.3322-3323 (photographs of North
Mercer Strip).
During the efforts to create the playground, there was an initiative to demap
the North Mercer Strip as a street. A.6:2508-2509 ¶ 30 (Olivieri Aff.); see supra
6 An enclosed planting called the Time Landscape sits in the middle of the southern end of the South LaGuardia Strip. See A.8:3321 (photographs of Time Landscape). Appellants acknowledge that the Time Landscape is part of Greenstreets, e.g., A.8:3119 ¶ 8 (Horan Aff.), and do not claim this property is implied parkland.
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pp. 18-19. NYU supported the playground—and agreed to contribute to it
financially—but opposed demapping because of concerns about losing vital street
frontage. A.8:3314 ¶¶ 13, 15 (Brown Reply Aff.); see A.6:2417-2418 (Letter from
NYU, Mar. 22, 1996).
After extended public discussions between various community stakeholders,
including NYU and DOT, the City did not demap the North Mercer Strip. Instead,
the Mercer Playground operates under a permit issued by DOT to DPR in 1995.
A.6:2497 (Letter from DOT to DPR Issuing Permit, Apr. 18, 1995). Under the
terms of that permit—which was “requested by [DPR] and … Community Board
2”—DOT granted DPR “temporary use and occupation” of the property, described
as the “inner edge of existing sidewalks.” Id. DPR is required to “vacate and
return” the property upon DOT’s request. Id.; A.6:2507-2508 ¶ 28 (Olivieri Aff.).
Consistent with DPR’s current management of the property, the playground
contains DPR signage.
In sum, the formal agreements and licenses for all three of the parcels the
trial court found to be dedicated parkland clearly state that all recreational and
garden uses were to be temporary and that the Strips were intended to remain
within the City’s inventory of streets.
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4. The South Mercer Strip
NYU agreed to improve the South Mercer Strip as part of the construction of
the Coles Sports and Recreation Center. A.8:3313 ¶ 11 (Brown Reply Aff.).
Those improvements included the Mercer-Houston Dog Run, which opened in
1981. Id.
The Dog Run is gated, locked, and run by the private Mercer-Houston Dog
Run Association. See, e.g., A.4:1425 (Apr. 25, 2010 Hr’g Tr. re DEIS, Gottlieb
Testimony); see also A.1:157 (photograph of Dog Run). Access is “by
membership only”—and it will stay that way. A.4:1425-1426 (Apr. 25, 2010 Hr’g
Tr. re DEIS, Gottlieb Testimony); see also A.1:156 ¶ 156 (Am. Verified Pet.). To
become a member, an applicant must be over 18 years old and must apply to the
Dog Run Association together with a fee (per dog). A.4:1425-1428 (Apr. 25, 2010
Hr’g Tr. re DEIS, Gottlieb Testimony). The Association does not accept all
applicants, and members must re-apply annually. Id.
DPR is not involved in the Association or in the operation or maintenance of
the Dog Run. See, e.g., A.1:43 (Trial Op.). There is no DPR signage anywhere,
and the Dog Run is not mentioned on the DPR website. Id.; A.8:3313 ¶ 11 (Brown
Reply Aff.). In 2009, when repairs were needed, NYU made them. A.1:43 (Trial
Op.).
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The eastern edge of the South Mercer Strip is a paved walkway used by
pedestrians. A.8:3313 ¶ 11 (Brown Reply Aff.). The South Mercer Strip also
includes a paved plaza, which allows pedestrians to access the main entrance to the
Coles Sports and Recreation Center. Id. Appellants do not claim that the plaza
portion of the Strip is implied parkland.
E. NYU’s Core Project
The Core Project involves gradually removing three buildings on the
Superblocks—the Coles Sports and Recreation Center, the supermarket, and the
Retail Building—and replacing them over time with four buildings devoted to
university use, including new academic facilities as well as housing and athletic
facilities, all of which are “‘crucial to its educational mission.’” A.7:2668-2669
¶ 122 (Brown Aff.). In addition, in response to community input, the Core Project
includes space for the City to build a new public school. Id.
On the South Superblock—during the first phase of the Project—the Coles
recreational center will be replaced with a taller building (called the Zipper
Building) whose bulk and density will be minimized through a design of staggered,
interlocking towers of varying heights. See A.7:2632-2633 ¶¶ 68, 2664-2665
¶ 114 (Brown Aff.). In the Project’s second phase, which will not begin before
2021, the Retail Building will be removed and two curved, modernist buildings—
the LaGuardia Building and the Mercer Building—will be built at each end of the
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large courtyard. See A.7:2633-2634 ¶ 69 (Brown Aff.). The supermarket will be
replaced by the Bleecker Building, during either the first or second phase of
construction. See A.7:2635 ¶ 72 (Brown Aff.).
To minimize the height and bulk of the new buildings, nearly half of the new
space will be underground. See A.7:2664-2666 ¶¶ 114-115 (Brown Aff.). NYU
will beautify and open to the public the open spaces on the Superblocks. The
center of the North Block will become an expansive public garden, with areas for
children to play and for adults to enjoy quiet contemplation. See A.7:2634 ¶ 70,
2664-2665 ¶ 114 (Brown Aff.). All told, NYU will dedicate three acres of its
property as publicly accessible open space as part of the Core Project. See id.
NYU will purchase easements over portions of the North Mercer Strip and
North LaGuardia Strip for construction staging, utilities, and to provide ingress to
and egress from the interior of the North Superblock. The easement for
construction will be effective during periods of construction of the LaGuardia
Building and the Mercer Building, respectively. The easements for utilities and for
access will be perpetual. Both the North Mercer Strip and the North LaGuardia
Strip will be remapped as parkland, subject to the easements, and ultimately re-
landscaped. See, e.g., A.2:483, 487 (FEIS); A.1:28 (Trial Op.). The Core Project
will in fact dramatically increase the publicly accessible open space and dedicated
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parkland in the Washington Square neighborhood. A.7:2634-2635 ¶¶ 70-71
(Brown Aff.); A.2:483, 487 (FEIS).7
F. Review And Approval Of The Core Project
Appellants contend that the Core Project was “rammed through” what they
characterize as a feckless City approval process. Appellants Br. 3. To the
contrary, the Core Project was the subject of an extensive environmental review
under the New York State Environmental Quality Review Act (“SEQRA”), as well
as public hearings under the City’s Uniform Land Use Review Procedure. See,
e.g., A.7:2636-2666 ¶¶ 74-115 (Brown Aff.). All told, the formal review processes
lasted more than a year and involved consideration and approval by multiple
separate municipal agencies and bodies, with public comment solicited and
considered at each step along the way. Indeed, the approval process resulted in
decisions favorable to the Project (as modified to meet objections) by the
7 Appellants mischaracterize the Core Project and its effects. For example, they say that the Mercer Playground will be “completely unavailable for public use” for “20 years,” Appellants Br. 14, but in fact it will be available until 2027 because NYU does not plan to begin construction of the Mercer Building on the North Superblock until then, A.7:2538 ¶ 32 (Hsu-Chen Aff.). By the end of the process, the North Mercer Strip will have been remapped as parkland, with a larger playground replacing the Mercer Playground. A.2:487-488 (FEIS). Appellants also say that the Dog Run will be moved to a “smaller, less desirable location.” Appellants Br. 20. That, too, is incorrect. The Dog Run will be moved to a nearby, similar space that is slightly larger than the existing space. A.2:489 (FEIS); A.7:2634 ¶ 70 & n.136 (Brown Aff.); see also A.1:29 (Trial Op.). That is presumably why the Dog Run Association does not oppose the relocation. A.4:1425-1426 (Apr. 25, 2010 Hr’g Tr. re DEIS, Gottlieb Testimony).
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Manhattan Borough President, the City Planning Commission, a subcommittee and
committee of the City Council, and the City Council itself.
To start: After NYU began its strategic planning process in 2007, then-
Borough President Stringer convened a community task force to address NYU’s
plans for growth in Greenwich Village. See A.7:2630-2632 ¶¶ 64-66 (Brown
Aff.); A.7:2525 ¶ 10 (Hsu-Chen Aff.). The task force developed a set of general
planning principles—including that any new construction in Greenwich Village
should be on land that NYU already owns. NYU agreed to those principles, and
the Project is consistent with them. See A.7:2632 ¶ 66 (Brown Aff.).
In April 2011, after consultation with City and state agencies, NYU
submitted an Environmental Assessment Statement to the Department of City
Planning. A.7:2636 ¶ 75 (Brown Aff.). That triggered a lengthy environmental
review process, during which public comments were reviewed and incorporated
into the official scope of work and draft environmental impact statement.
A.7:2636-2637 ¶ 75 (Brown Aff.). The environmental impact statement included a
detailed analysis of the Core Project’s potential effects on “open spaces,” as
defined by the City Environmental Quality Review Technical Manual. A.2:440
(FEIS).8 Indeed, the impact statement examined all four parcels at issue here and
8 That manual broadly defines “open space” as “‘publicly or privately owned land that is publicly accessible and operates, functions, or is available for leisure,
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expressly treated three of them as “open spaces” in that analysis. See A.2:449-493
(FEIS).9
Later in 2011, NYU submitted its ULURP applications. A.7:2637 ¶ 76
(Brown Aff.). Upon review, the Department of City Planning determined that the
environmental issues had been adequately studied in the draft environmental
impact statement and certified it as complete. Id. Thus, in January 2012, five
years after NYU’s planning process had begun, the Department of City Planning
certified NYU’s applications as complete, triggering ULURP’s public review
phase. A.7:2637-2638 ¶ 76 (Brown Aff.).
Review under ULURP proceeded in four stages. The applications were first
referred to Community Board 2. A.7:2638 ¶ 78 (Brown Aff.). NYU gave
numerous briefings to the Community Board and provided detailed written
answers to questions, yielding hundreds of pages of written information about the
Core Project. A.7:2638-2639 ¶ 78 (Brown Aff.). The Community Board
play, or sport, or set aside for the protection and/or enhancement of the natural environment.’” A.2:440 (FEIS). 9 The Mercer Playground was treated as “[p]ublicly accessible open space,” A.2:451 (FEIS); LCG and the Dog Run were treated as “[p]rivate open space,” in light of the limited public access to those facilities, A.2:452 (FEIS). The relevant portion of the North LaGuardia Strip, referred to in the impact statement as the “LaGuardia Landscape,” was treated as neither public or private open space in the baseline assessment “because it does not provide usable recreational areas,” but was nevertheless examined both quantitatively and qualitatively. A.2:449 (FEIS). An alternative quantified analysis in the FEIS assumed that the North LaGuardia Strip was publicly accessible passive open space. SA.150 (FEIS).
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recommended disapproval of the Project, focusing on the “bulk, density and height
of the proposed development,” a then-planned “temporary gymnasium,” and then-
planned “hotel use and the commercial overlay.” A.7:2639 ¶ 78 (Brown Aff.); see
also A.7:2549 ¶ 51 (Hsu-Chen Aff.).
NYU’s applications were then referred to the Manhattan Borough President.
A.7:2639 ¶ 79 (Brown Aff.). Then-President Stringer recommended conditional
approval of the applications, subject to proposed modifications to address concerns
voiced by the Community Board and others. A.7:2640 ¶ 79 (Brown Aff.). These
proposed modifications included, among other things, decreasing the density of the
Project by reducing the height of some buildings and a change in the phasing of
construction on the North and South Superblocks. A.7:2640 ¶ 79 (Brown Aff.);
see also A.7:2550-2551 ¶¶ 52-55 (Hsu-Chen Aff.).
NYU’s applications were then referred to the City Planning Commission,
which reviewed them in tandem with the draft environmental impact statement.
A.7:2640-2641 ¶ 80 (Brown Aff.). In April 2012, the Commission held a public
hearing on the applications and the draft environmental impact statement, at which
more than 100 people testified. A.7:2640-2641 ¶¶ 80-81 (Brown Aff.). During
review by the Commission (as well as subsequent review by the City Council,
discussed below), concerns about community access to playgrounds and open
space were raised and explored at length. A.7:2659 ¶ 106 (Brown Aff.).
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In June 2012, the Commission approved the applications, with certain
modifications to the Project, by a vote of 12 to 1, and issued reports detailing the
basis for the decisions. A.7:2660-2661 ¶ 108 (Brown Aff.); see also A.7:2560 ¶ 79
(Hsu-Chen Aff.).10 Among other things, the Commission found that NYU needs to
be able to address a “‘critical shortage of modern academic facilities,’” that the
Superblocks are an appropriate place for NYU development, and that the Core
Project would have the beneficial effect of undoing negative tower-in-the-park
aspects of the original Urban Renewal Plan. A.7:2660-2661 ¶ 108 (Brown Aff.);
see A.7:2560-2561 ¶¶ 80-81 (Hsu-Chen Aff.).
Finally, the Commission’s decision was reviewed by the City Council.
A.7:2662 ¶ 110 (Brown Aff.). The City Council’s Subcommittee on Zoning and
Franchises held a public hearing on June 29, 2012, at which more than 100 people
spoke. A.7:2662 ¶ 111 (Brown Aff.). Approximately two weeks later, the
subcommittee reconvened for a public meeting and vote on the applications.
A.7:2662 ¶ 112 (Brown Aff.). Following further questioning of representatives of
NYU, the subcommittee voted unanimously to recommend approval, with
modifications. A.7:2662-2663 ¶ 112 (Brown Aff.). Later that same day, the
Committee on Land Use voted 19 to 1 to recommend approval, again with
10 Modifications included, among other things, reductions in the heights of the Mercer and Bleecker Buildings and the elimination of plans for a hotel and a temporary gym. A.7:2661-2662 ¶¶ 108-109 (Brown Aff.).
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modifications. Id. Finally, on July 25, 2012—by a vote of 44 to 1—the City
Council approved the Commission’s decision, subject to the Committee on Land
Use’s modifications reducing the size of the Project. A.7:2662-2663 ¶¶ 112-113
(Brown Aff.); see A.7:2565-2570 ¶¶ 90-103 (Hsu-Chen Aff.). The mayor, who has
the power under ULURP to file a written disapproval of such a resolution, did not
object. A.7:2570 ¶ 103 (Hsu-Chen Aff.).11
III. PROCEEDINGS BELOW
A. The Article 78 Proceeding
In September 2012, Appellants filed an Article 78 petition against New York
City and several city agencies and officials, certain New York State agencies and
officials, and NYU as a necessary third party, seeking to annul approval of the
Core Project and to enjoin it from going forward. The petition, as amended,
11 Appellants misleadingly suggest that there is overwhelming “public objection” to the Project. Appellant Br. 22. While there is some opposition, there is also substantial support. During the ULURP review, many members of the public—including community members and representatives of other academic institutions—submitted written or oral statements in favor of the Project. See, e.g., A.7:2643-2657 ¶¶ 83-103, 2662 ¶ 111. And the reaction of the broader community has been positive. See, e.g., Editorial, Let N.Y.U. Expand in Its Backyard, N.Y. Times, Apr. 1, 2012, at SR 12 (“[T]his important New York institution should be able to expand in its core area. It is one of the nation’s elite universities; it adds high-paying jobs and intellectual allure to the City and to the Village. It is just the sort of thing New Yorkers should encourage.”); Editorial, NYU’s grand plan, N.Y. Daily News, Mar. 19, 2012, at 26 (“[NYU’s] leadership should be commended for putting together a smart plan that meets the needs of the school’s current and future students and faculty—while making the campus friendlier to the surrounding neighborhood[.]”); see also A.6:2600-2601 ¶ 16 (Brown Aff.).
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alleged six causes of action, including violation of the public trust doctrine. See
A.1:185-189 (Am. Verified Pet.). The gravamen of that claim and this appeal is
that, at some undefined point in time, the City impliedly dedicated as parkland four
parcels of land on the DOT Strips—referred to by Appellants and the courts below
as “LaGuardia Park,” LCG, Mercer Playground, and the Dog Run—thus ceding
control for all time over use of that property to the State Legislature.
The City and NYU answered and moved to dismiss. A.1:17 (Trial Op.).
The trial court dismissed all of Appellants’ claims save their public trust doctrine
claim with respect to “LaGuardia Park,” LCG, and Mercer Playground. See
A.1:90-91.12 Failing to apply the established common-law rule that the intent of a
property owner is the touchstone of implied dedication, compare A.1:45-46, with,
12 Appellants insist, repeatedly, that the trial court made “factual findings.” E.g., Appellants Br. 4, 45 n.13, 48, 56. That is wrong. The trial court did not hold “a trial of any issue of fact.” C.P.L.R. § 7804(e); see id. § 7804(h) (“If a triable issue of fact is raised in a proceeding under this article, it shall be tried forthwith.”); see also, e.g., 1300 Franklin Ave. Members, LLC v. Board of Trustees of Inc. Vill. of Garden City, 62 A.D.3d 1004, 1006-1007 (2d Dep’t 2009) (“where … there are facts in dispute that must be resolved … , a hearing must be conducted forthwith by the Supreme Court”). Rather, it resolved the case by summary determination on the submitted papers. See A.1:90-91; see also C.P.L.R. § 409(b) (“The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised.”); Ames v. Johnston, 169 A.D.2d 84, 86 (3d Dep’t 1991) (“no need for an additional fact-finding” in Article 78 challenge because judicial review “is limited to assuring that, based on the information before it, the [agency’s] decision was not arbitrary, capricious or affected by an error of law”). There were thus no findings to which the Appellate Division owed any deference or which it had any responsibility to overturn.
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e.g., Holdane v. Trustees of Vill. of Cold Spring, 21 N.Y. 474, 477-478 (1860), the
trial court held that “long continued use of the property as a park can, itself,
establish the property as parkland by implication,” A.1:45.
Applying that incorrect legal standard, the court concluded that “LaGuardia
Park,” LCG, and Mercer Playground had been impliedly dedicated as parkland
through “long continuous use.” A.1:48-49. Even under that standard, however,
the court concluded that the Dog Run had never been dedicated as parkland.
A.1:43, 51.
With respect to remedy, the court firmly rejected Appellants’ argument that
the appropriate course was to require that the entire approval process start anew.
The court instead enjoined NYU only from construction “that will result in any
alienation of the parcels found … to be parkland, unless and until the State
Legislature authorizes alienation of any parkland to be impacted by the project.”
A.1:91.
B. The Appellate Division’s Review
The City and NYU appealed the trial court’s ruling with respect to the three
parcels. Appellants cross-appealed on multiple issues, including the trial court’s
decision that the Dog Run had not been impliedly dedicated as parkland. The
Appellate Division unanimously modified the trial court’s order on the law,
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granting the City’s and NYU’s motions to dismiss and denying Appellants’
petition. A.1:3-6.
The court first explained that “an implied dedication may exist when the
municipality’s acts and declarations manifest a present, fixed, and unequivocal
intent to dedicate,” A.1:4 (citing Riverview Partners, L.P. v. City of Peekskill, 273
A.D.2d 455, 455 (2d Dep’t 2000); Powell v. City of New York, 85 A.D.3d 429, 431
(1st Dep’t), lv. denied, 17 N.Y.3d 715 (2011)), and that the “burden of proof rests
on the party asserting that the land has been dedicated for public use,” A.1:5.
Applying that familiar legal standard, the Appellate Division concluded that no
part of the DOT Strips has been impliedly dedicated as parkland. A.1:4-5 (1st
Dep’t Op.). While the City had allowed some “long-term continuous use of parts
of the parcels for park-like purposes,” that single factor was not dispositive. A.1:5.
For one thing, “such use was not exclusive, as some of the parcels (like LaGuardia
Park) have also been used as pedestrian thoroughfares.” Id. In addition, “any
management of the parcels” by DPR was “understood to be temporary and
provisional, pursuant to removable permits or licenses.” Id. Finally, the court held
that—ever since the City acquired the DOT Strips more than five decades ago—
they had been mapped as streets, and that the City had “refused various requests to
have the streets de-mapped and re-dedicated as parkland.” Id. Having considered
all of the City’s “acts and declarations and the circumstances surrounding the use
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of the land,” the court held that Appellants failed to carry their burden of showing
an “unequivocal intent to dedicate any of the parcels as public parkland.” A.1:4-5.
Appellants filed a motion for leave to appeal to this Court, raising one
question for review. Pet. Mem. in Supp. of Mot. for Lv. 1 (Nov. 12, 2014). That
question was limited to whether parts of the DOT Strips had been impliedly
dedicated as parkland. Id. The Court granted leave to appeal on February 24,
2015.
SUMMARY OF ARGUMENT
I. Implied dedication requires two elements: (1) the property owner’s
unequivocal intent to dedicate land for a particular public use; and (2) an
acceptance of the land for that use by the public. Only the first element, the
landowner’s intent, is at issue here. This Court long has maintained a high bar for
finding that a landowner intended to dedicate land to public use: “The owner’s
acts and declarations should be deliberate, unequivocal and decisive, manifesting a
positive and unmistakable intention to permanently abandon … property to the
specific public use.” Holdane v. Trustees of Vill. of Cold Spring, 21 N.Y. 474, 477
(1860) (emphases added). New York courts have applied that unequivocal-intent
standard for over 150 years.
The necessary corollary of this requirement is that where the evidence of the
owner’s intent is equivocal or ambiguous, there is no dedication. Put simply, to
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find an unequivocal intent to dedicate, the “only reasonable explanation” of the
owner’s “line of conduct” must be that “that a dedication was intended.” 11A
McQuillin, The Law of Municipal Corporations § 33:40, at 583 (3d ed. 2009)
(emphasis added). Permitting the public to use open space for recreation, without
more, plainly fails that test: A perfectly reasonable explanation is that the
landowner intended to permit the public to use the land temporarily, until it was
needed for some other purpose.
It is thus unsurprising that public use is not, contrary to Appellants’ feint, the
“foremost” factor in determining a landowner’s intent. Cf. Appellants Br. 1.
Public use is central to the acceptance element of implied dedication, which is not
at issue here. Appellants do their best to hide this, but their many cases supposedly
establishing the totemic importance of public use deal with acceptance, not
landowner intent. Public use is (at best) weak circumstantial evidence of an
owner’s intentions. And this Court has never held that public use alone can
overcome countervailing evidence that the owner did not intend a dedication—
much less the type of express reservations, disclaimers, and formal official
documents present here.
Even setting centuries of this Court’s precedent aside, making public use and
perception of a parcel the touchstone of implied dedication would be misguided as
a matter of first principles. Appellants’ proposed rule—if members of the public
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think it’s a park, it’s a park forever—would have serious adverse consequences for
the residents of New York City and towns, villages, and cities throughout the State.
Public officials would face an intractable dilemma: Beautifying streets and plazas,
or allowing recreational use of temporarily idle plots, would carry the risk that the
city would lose control of that land forever. Faced with that prospect, risk-averse
public officials would have a sharp disincentive to allow the public to play, garden,
or relax on open spaces. Many will take the safe course, and simply fence them
off.
There are yet other reasons to reject Appellants’ rule. It is established that
neither prescriptive easements nor estoppel run against the government. In both
cases, a principal reason is that allowing the government to surrender public
property by inadvertence would undermine public accountability and prevent the
government from fulfilling its sovereign obligations to the public. Appellants’
misguided vision of implied dedication well illustrates the point: It would
circumvent the existing, democratically accountable processes for demapping
streets and transforming them into parkland, and thereby subvert the City’s trust
obligation to preserve streets for the public.
II. Appellants have not come close to establishing that the City
intended—much less unequivocally intended—to irrevocably dedicate the four
parcels at issue as parkland. The City acquired the DOT Strips to hold “in trust for
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street purposes.” They have been mapped as streets on the official map of the City
for almost 50 years. Efforts to demap them were repeatedly rebuffed. And the
official documents authorizing the three parcels the trial court concluded to be
parks expressly disclaimed any intention to permanently dedicate them as
parkland. Against this abundant evidence that the City did not intend a dedication,
Appellants can only muster that the City permitted some park-like activities on the
Strips—which is equally consistent with the temporary, revocable recreational use
that the City actually intended.
III. Appellants’ remedial arguments are meritless. SEQRA requires an
agency to consider various enumerated environmental factors, including “open
space.” Parklands are classified as “open space” for SEQRA purposes, and the
environmental review undertaken here considered in exhaustive detail the Project’s
effects on open space, including the Strips. Appellants claim that the City
committed SEQRA error by failing to consider the Strips “as parkland,” but the
statute includes no such requirement and the environmental impact statement’s
consideration of “open space” satisfied SEQRA’s “hard look” requirement.
Finally, Appellants are not entitled to the overbroad injunction they request.
The trial court, which (erroneously) deemed three of the parcels dedicated
parkland, enjoined only construction that would result in “any alienation of”
parcels found “to be parkland.” Appellants, by contrast, ask this Court to issue a
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sweeping injunction against all construction, even construction that has no effect
on any parkland. That is unwarranted and contravenes the blackletter principle that
an injunction should be no broader than necessary to remedy the harm found.
ARGUMENT
I. THE LANDOWNER’S INTENT—NOT THE PUBLIC’S USE—DETERMINES WHETHER LAND HAS BEEN IMPLIEDLY DEDICATED
Appellants’ refrain is that “long continuous public use is the key indicator”
(32)—“the paramount determinant” (32), “the touchstone” (32), “a sine qua non”
(34), “the main determinant” (39), “the cornerstone” (42)—of implied dedication
of parkland. That is not the law. For well over a century, this Court has made
clear that the sole determinant of dedication is the landowner’s “deliberate,
unequivocal and decisive” acts and statements, “manifesting a positive and
unmistakable intention to permanently abandon … property to the specific public
use.” Holdane v. Trustees of Vill. of Cold Springs, 21 N.Y. 474, 477 (1860).
To be sure, long continuous public use is relevant to the public’s acceptance
of that property as parkland—a separate element of the analysis. And, as
Appellants’ most cited cases—Village of Croton-On-Hudson v. County of
Westchester, 38 A.D.2d 979 (2d Dep’t 1972), aff’d, 30 N.Y.2d 959 (1972), and
Riverview Partners, L.P. v. City of Peekskill, 273 A.D.2d 455 (2d Dep’t 2000)—
show, long continuous public use sometimes may be one circumstantial piece of
evidence of the owner’s intent that corroborates other evidence of intent. But
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neither those cases nor any other stands for the proposition that public use is
sufficient to establish owner intent, particularly in the face of contrary evidence.
That rule not only accords with long-standing common-law principles but it also
avoids the deleterious policy consequences that would follow from establishing
public use as the touchstone of implied dedication.
A. Proponents Of Implied Parkland Must Demonstrate Both Dedication By The Landowner And Acceptance By The Public
The law of implied dedication is settled. To conclude that a property owner
has irrevocably dedicated land to the public for a particular use, a court must find
(1) an “absolute dedication, a setting apart and a surrender to the public use of the
land” by the property owner, and (2) “an acceptance” by the public of the property
for a specific use. Niagara Falls Suspension Bridge Co. v. Bachman, 66 N.Y. 261,
269 (1876) (per curiam); see also Flack v. Village of Green Island, 122 N.Y. 107,
113 (1890) (“principles” of dedication “are quite familiar to the legal profession,”
and require “dedicat[ion] by the owner to the use” of the public and “accept[ance]
for such purpose”); Cook v. Harris, 61 N.Y. 448, 453-454 (1875) (implied
dedication requires “dedication and acceptance”). Each element is necessary, but
neither is sufficient, as each serves a distinct purpose. See 11A McQuillin, The
Law of Municipal Corporations § 33:2, at 425 (3d ed. 2009) (“The intention of the
owner to dedicate the property and acceptance of the property by the public are
essential to a complete dedication.”).
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1. Intent to dedicate
Implied dedication is an “anomalous” means of defining and transferring
rights in property, Holdane, 21 N.Y. at 479, which are typically subject to rigorous
formal requirements, Hunter v. Trustees of Sandy Hill, 6 Hill 407, 411 (Sup. Ct.
Judicature 1844) (dedication is “anomalous” because “rights are parted with and
acquired in modes and by means unusual and peculiar”). The effects of implied
dedication are momentous: Dedication is “irrevocable in its nature and character,”
and “fix[es] a perpetual public burden upon the property of [the] owner.” Holdane,
21 N.Y. at 476, 477.
As a consequence, the Court has set rigorous requirements for ascertaining
and proving the intention of the property owner to dedicate land for public use.
Simply put, the “‘intention of the owner to dedicate is the essential thing.’” Flack,
122 N.Y. at 113-114; see also 11A McQuillin § 33:39, at 578 (“The intent of the
dedicator is the foundation and life of all dedications and that intent must be
clearly and unequivocally manifested.”); id. § 33:32, at 531-533 (“The intention to
dedicate is the underlying basis upon which any dedication rests.”). That intention
can be proved, this Court has consistently held, only through “unequivocal”
evidence of an intent to dedicate, Cook, 61 N.Y. at 454—that is, acts
“unmistakable in their purpose and decisive in their character,” Niagara Falls, 66
N.Y. at 269; Holdane, 21 N.Y. at 477 (“The owner’s acts and declarations should
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be deliberate, unequivocal and decisive, manifesting a positive and unmistakable
intention to permanently abandon … property to the specific public use.”). This is
the “well understood” “common-law rule.” Matter of City of New York, 239 N.Y.
119, 127 (1924); 11A McQuillin § 33:39, at 580 (dedication requires acts that are
“so decisive and deliberate as to show a positive and unmistakable purpose to
permanently transfer … property to the public for the indicated use”).
Lower courts in New York have consistently applied this rule. See, e.g.,
Powell v. City of New York, 85 A.D.3d 429, 499 (1st Dep’t) (intent to dedicate
requires a “‘present, fixed, and unequivocal intent to dedicate’”), lv. denied 17
N.Y.3d 715 (2011); Angiolillo v. Town of Greenburgh, 290 A.D.2d 1, 10-11 (2d
Dep’t 2001) (implied dedication requires an “unequivocal … offer by the owner”);
Ciaccia v. Moore, 184 A.D.2d 1075, 1076 (4th Dep’t 1992) (applying a “‘present,
fixed, unequivocal’” intent standard); Speir v. Town of New Utrecht, 2 N.Y.S. 426,
428 (Gen. Term 1888) (citing Holdane, Cook, and Niagara Falls for the
proposition that “[t]he authorities all hold that an intent to dedicate must be
deliberate, decisive, and unequivocal to effect a dedication”).
The necessary corollary of those principles is that where there is ambiguous
evidence of a landowner’s intent, there is no dedication: If a landowner’s acts are
“equivocal, or do not clearly and plainly indicate the intention to permanently
abandon the property to the use of the public, they are insufficient to establish a
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case of dedication.” Holdane, 21 N.Y. at 478; see id. at 477 (concluding that acts
of the landowner were “too equivocal and indecisive” to establish dedication). Put
differently, the requisite intent to dedicate demands “a line of conduct the only
reasonable explanation of which is that a dedication was intended.” 11A
McQuillin § 33:40, at 583; see, e.g., Roosevelt Island Residents Ass’n v. Roosevelt
Island Operating Corp., 7 Misc. 3d 1029(A), at *12 (Sup. Ct. N.Y. County 2005)
(“Vague or contradictory evidence of parkland dedication is inadequate, as a
matter of law, to establish that a particular site is parkland.”).
This rule advances important ends. By requiring unequivocal evidence of a
landowner’s intent to dedicate his property, the common law ensures that a
landowner will not unwillingly or unwittingly be deemed to have surrendered his
property to the public forever. That standard thus provides landowners—private
parties and municipalities alike—with certainty that they may open their property
to temporary recreational or other uses by the public without fear that such
permissive use will forfeit their right to put the property to different, more
productive, uses in the future. As explained further below, under a contrary
regime, landowners would face substantial disincentives to beautifying their
property or opening it to temporary public use. See infra pp. 55-59. No one—
neither landowners nor the public—would benefit from that.
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2. Acceptance
In addition to dedication by the owner, acceptance by the public must
separately be shown. Otherwise, a landowner could foist his property on unwilling
municipal authorities “for his own benefit and convenience … and compel the
municipality to improve the [land] and keep it in a state of repair.” Putnam Valley
Lumber & Supply Corp. v. Duell, 82 N.Y.S.2d 407, 409 (Sup. Ct. Westchester
County 1948); see also 4 Tiffany, The Law of Real Property § 1106, at 602-603
(3d ed. 1975) (acceptance requirement guards against “burdens and liabilities”
being imposed “upon the public authorities” as to “the condition and repair of the
property”).
Evidence of whether and how the public uses the land is sensibly treated as
probative of acceptance. As this Court has explained, “[t]he rule appears to be
established that the acceptance may be proved by long public use or by the acts and
conduct of the public authorities.” People v. Loehfelm, 102 N.Y. 1, 3 (1886) (per
curiam); see also, e.g., People v. Underhill, 144 N.Y. 316, 323 (1895) (concluding
insufficient “evidence of an acceptance … either by way of user or by any formal
and conclusive action on the part of those public authorities of the village”);
Holdane, 21 N.Y. at 478 (acceptance “may be indicated by common user, under
circumstances showing a clear intent to accept and enjoy”); Bissell v. New York
Cent. R.R., 23 N.Y. 61, 64-65 (1861) (land does not become “a public highway
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until there has been an acceptance, either by formal act of the public authorities, or
by common user”). Just as intent to dedicate can be implied from the owner’s acts,
acceptance can be implied from the public’s conduct—“from repairs made and
ordered or knowingly paid for by the authority which has the legal power to adopt
the street or highway.” Flack, 122 N.Y. at 115.
B. Appellants’ Proposed Legal Standard Is Deeply Flawed
Appellants propose to set aside this centuries-old framework in favor of a
new rule, under which “long continuous public use … is the paramount
determinant of implied dedication as parkland.” Appellants Br. 32. That is,
Appellants seek to elevate a single fact—public use—that is often useful evidence
of acceptance to the “paramount determinant” of both acceptance and dedication.
In fact, under Appellants’ rule, the landowner’s intent is immaterial: If the public
treats the land as a park, it is a park. No decision of this Court supports
Appellants’ rule, and nothing in the common law or public policy recommends it
even as a matter of first principles.
1. Appellants’ proposed rule is unsupported by this Court’s implied-dedication case law
Appellants’ rule would collapse a distinction between dedication and
acceptance that is fundamental to the implied-dedication framework: Unequivocal
evidence of the landowner’s intention to donate is required, as is evidence that the
public and public authorities agree to be charged with responsibility for that land.
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Whether and how the public uses a landowner’s property may sometimes be
one factor relevant to ascertaining the intent of the owner. See Appellants Br. 41
(citing treatises to this effect); Croton-On-Hudson, 38 A.D.2d at 980; Riverview
Partners, 273 A.D.2d at 455-456. But the “mere fact that land is used by the
public … does not in itself show a dedication … by the owner, though the use is
with the owner’s knowledge.” 4 Tiffany § 1102, at 582 (internal footnote omitted);
see also id. at 583 (“Dedication will not be inferred from mere permissive use of
unenclosed land.”). Rather, the public’s use or perception of land, standing alone,
is typically inconclusive evidence of the owner’s intent to surrender his property,
particularly where such use is permissive. See, e.g., New York Cent. & Hudson
River R.R. v. Village of Ossining, 141 A.D. 765, 766 (2d Dep’t 1910) (citing
precedent for the view that “permissive” use of property by the public “furnish[es]
no evidence that the [owner] intended to dedicate the way to public use”); aff’d,
207 N.Y. 648 (1912).
Appellants claim (at 33) that an “unbroken line of precedent” supports their
rule. Not so. The cases they cite establish two uncontroversial legal propositions,
neither of which favors their rule.
First, Appellants cite (at 34-37) cases holding that long continuous use is
probative evidence of the public’s acceptance of land for a particular use—not of
the owner’s intent to dedicate. Appellants’ description of these cases as supporting
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their rule is thus far wide of the mark. For example, they say Cook “emphasized”
that long public use is “a sine qua non in establishing … dedication.” Appellants
Br. 34. Cook said no such thing. Instead, Cook reaffirmed that implied dedication
depends upon the “intention [of a landowner] to abandon … his property to the
specific public use,” and concluded that showing had been made because the intent
of the owner was “quite unequivocal.” 61 N.Y. at 454. The Court mentioned
“long public use” only with respect to whether “the public [had] accept[ed]” the
dedication. Id. (emphasis added); see id. (“acceptance may be proved by long
public use”).
Appellants similarly contend that this Court “reiterated the significance of
‘long public use’” in Loehfelm. Appellants Br. 35. That is correct, but it did so—
again—in discussing acceptance, not dedication. Indeed, intent to dedicate was not
at issue in the case: “The dedication of Beach Street to the use of the public …
was proved by the map of the original owner and is not disputed.” 102 N.Y. at 3.
The only “debate [was] over the acceptance by the public.” Id. As to that issue,
the Court explained that “acceptance may be proved by long public use.” Id.
People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394 (1937), is to the same
effect. The Court assumed “there had been a dedication,” id. at 402, and its
discussion of how the land was used by the public was strictly limited to whether
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the public had accepted that dedication, see id. at 401 (“acceptance may be proved
by long public use”).
Second, Appellants cite cases recognizing that public use can be
confirmatory evidence of intent that is otherwise unequivocally established in the
record. This is not a controversial proposition, and it is consistent with the
framework elaborated above, which trains its inquiry on the owner’s intent. In
Hunter, the Supreme Court of Judicature identified “unequivocal” evidence of
intent to dedicate land as a graveyard where one of the owners “cleared off the
wood and timber … for the avowed purpose of using it as a burying ground for the
inhabitants of the town” and no other owner objected while the land was fenced off
and filled with graves for more than three decades. 6 Hill at 413. Public use (i.e.,
burying bodies) confirmed the owners’ undisputed intent. See id. (noting absence
of “dissent” by “any person” to this use for decades). Likewise, in Flack, this
Court found ample evidence “that the place was a public highway,” including
conveyances by the owners incorporating maps that expressly identified the land at
issue as a street. 122 N.Y. at 115. The landowner’s “acquiescence” in the public’s
use of the subject plats as a street confirmed what was otherwise evident. Id.13
13 Two other aspects of Flack are notable. First, the analysis in the body of the opinion muddles dedication and acceptance, making it unclear whether the Court actually thought public use was relevant to the dedication prong at all. But the syllabus of the decision clearly treats public use as probative of acceptance, and not dedication. See 122 N.Y. at 107-108. The syllabus may be presumed fairly to
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Appellants emphasize the Second Department’s one-paragraph decision in
Croton-On-Hudson and this Court’s affirmance without opinion. See Pet. Mem. in
Supp. of Mot. for Lv. 17-18 (Nov. 12, 2014) (arguing Croton-On-Hudson is the
“benchmark case” that makes public use “dispositive” of dedication); Appellants
Br. 39-40 (similar). But that decision is consistent with the principles recited
above and cannot bear any greater weight.
The Village of Croton-on-Hudson contended that portions of Croton Point,
owned by the County, were parkland that could not be alienated for use as a
garbage dump. The Second Department concluded that the land had been
dedicated and accepted for park purposes, finding that the County had “acquired”
the lands “for public park purposes by a special borrowing and [the lands] have
been used as such for over 45 years.” 38 A.D.2d at 980. Those conclusions are
state the opinion. See, e.g., Thomas W. Finucane Co. v. Board of Educ. of Rochester, 190 N.Y. 76, 83 (1907) (relying on syllabus as “fairly stat[ing]” the opinion of the court).
Second, although Court’s general discussion of legal principles recited Hunter’s statement that long public use may furnish “‘strong evidence of dedication,’” 122 N.Y. at 114, it explained in three other places that public use is relevant only to the acceptance element of dedication. See id. (land “did not become a street or highway until there had been an acceptance, either by formal act of public authority or by common user” (citing Bissell, 23 N.Y. 61); id. (“‘To complete the dedication of a highway, if there has been no formal act of acceptance by public authority, the acceptance may be made by common user as a highway of the land dedicated.’” (quoting Holdane, 21 N.Y. at 479)); id. at 115 (“‘Acceptance may be express and appear of record, or it may be implied from repairs made and ordered or knowingly paid for by the authority which has the legal power to adopt the street or highway, or from long user by the public.’”).
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unremarkable: The acquisition of land for park purposes with specifically
earmarked funds is a reliable indicator of intent absent any contrary indication (the
court cited none); subsequent public use of the land only corroborates that intent
and establishes acceptance by the public.
Appellants seize on the Second Department’s statement that “the long-
continued use of the land for park purposes constitutes a dedication and acceptance
by implication.” 38 A.D.2d at 980 (citing Loehfelm, 102 N.Y. at 3-4; Cook, 61
N.Y. at 453-454). That summary statement cannot be read to establish a rule that
public use is dispositive as to a landowner’s intent to dedicate. As explained
above, there was sufficient evidence of the County’s intent to dedicate in that case:
The Second Department’s emphasis on the facts that the County had acquired the
land for “public park purposes” and paid for the acquisition with a “special
borrowing” limited to that purpose, id., would be superfluous if the court had
adopted a rule giving dispositive weight to long-continued use. The court’s
reliance on Loehfelm and Cook—both of which discuss public use in terms of
acceptance, not intent, see supra p. 50—confirms that reading.14
14 Appellants contend that because “the parties fully briefed the implied dedication question” on further appeal, this Court’s affirmance without opinion “suggests agreement with the Second Department’s decision and the legal standard it applied.” Appellants Br. 37 n.9. That misstates the parties’ arguments.
The Village, the proponent of dedication, argued that the County’s resolution to acquire the land for park purposes and the special borrowing “clearly
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For similar reasons, Riverview Partners does not support Appellants’ rule.
There, the court found evidence of an intent to dedicate in, among other things, the
fact that “the property was purchased … for park purposes” and designated on
“city maps” as a park. 273 A.D.2d at 455-456. Again, that is unremarkable: The
decision reflects the intuition that evidence of why land was acquired can supply
insight into the owner’s intended use of that land, absent contrary evidence of that
intent. Subsequent public use (as well as mapping and signage) confirmed that
intent.
In short, Appellants’ proposal to make “public use” the dispositive factor in
the implied-dedication analysis is deeply at odds with the common law.
Longstanding precedent confirms that public use is most often relevant to the issue
of acceptance, not intent to dedicate. Although public use may be a factor in
evince[d] … legislative intent to acquire Croton Point for park purposes.” Br. of Pl.-Resp. 21; see also id. at 5-6, 24. The Village expressly declined to argue that public use alone can effect a dedication and nowhere contended that the Second Department had adopted such a rule. Citing in a footnote two out-of-state authorities, the Village observed that “[t]here are cases holding that long continued public use alone is sufficient to impress a trust upon the parkland and preclude diversion without legislative consent.” Id. at 25 n.4. But the Village emphasized that, “[i]n light of the acquisition and financing resolutions of the County in the case at bar, it is unnecessary here to reach that issue.” Id. Given the Village’s express disclaimer of the argument Appellants advance here, there are especially strong reasons to apply the general rule that this Court’s affirmance without opinion did not “adopt[] … the [Second Department’s] reasoning.” People v. Harris, 57 N.Y.2d 335, 350 n.5 (1982).
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ascertaining a landowner’s intent, it is only confirmatory evidence of intent that is
otherwise unequivocally established.15
2. Appellants’ rule would have profoundly negative consequences
Appellants’ rule would put municipal authorities on the horns of an
intractable dilemma. Faced with underused or aesthetically displeasing
government land, a municipality could choose to beautify it and make it more
inviting and publicly accessible—but only if the town or city were prepared to
irrevocably dedicate that land as parkland, eliminating any alternative use absent
intervention from the State Legislature. If the municipality wants to preserve its
rights to make different land-use decisions in the future, it may be compelled to
fence the land off and maintain it, even in disrepair—or at the very least surround
it with absurd signage telling the public that land the local government wants to
15 Appellants’ reliance (at 40) on the views of the New York Attorney General is misplaced for that reason as well. The opinion Appellants cite says that “long use as a public park” can effect a dedication, but it cites an earlier opinion that makes clear the limited circumstances under which such dedication can occur. N.Y. Op. Atty. Gen. No. 2011-7, 2011 WL 3102603, at *2 (June 30, 2011) (citing N.Y. Op. Atty. Gen. No. 84-42, 1984 WL 186576 (Sept. 4, 1984))). The 1984 opinion explains that “the continued use of land acquired for park purposes for a lengthy period as a public park constitutes a dedication and acceptance by implication.” 1984 WL 186576, at *1 (emphasis added); accord N.Y. Op. Atty. Gen. No. 84-15, 1984 WL 186566, at *1 (Feb. 22, 1984). The opinions thus establish, consistent with Croton-On-Hudson, that the purpose for which land was acquired can establish an intent to dedicate, particularly in light of subsequent use. Here, the DOT Strips were acquired in trust for street purposes and were used in a manner consistent with their status as streets. See supra pp. 13, 18, 19-27.
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encourage for recreational or leisure use is not in fact a park. See, e.g., New York
State Conference of Mayors et al. Amicus Br. 16 (questioning whether
“‘Temporary Mercer Playground’” would satisfy Appellants’ standard). That is an
unfortunate outcome, and one that the law neither recommends nor commands.
See Pearlman v. Anderson, 307 N.Y.S.2d 1014, 1017 (Sup. Ct. Nassau County)
(“The fact that the village cleaned up the property, put in a few shrubs and trees,
walkways with four or five benches, and it was used to a small degree as a park
does not seem to place this property into a trust for park purposes. … To hold
otherwise would cause public officials to bar the use as a park of land acquired for
future needs.”), aff’d, 35 A.D.2d 544 (2d Dep’t 1970).
The risk is particularly acute with respect to public-private partnerships
meant to beautify and improve streets (a term that encompasses public sidewalks,
see supra p. 13). The line between beautified streets and parks can be difficult to
discern without an examination of the City’s intent; under Appellants’ rule, the
legal status of such land turns on public perception, notwithstanding the
municipality’s efforts to preserve its rights to make different arrangements in the
future. As a consequence, under Appellants’ envisioned regime, DOT would be
unlikely to permit community gardeners to place gardens on city streets, as it did
with respect to LCG. See A.6:2501-2502 ¶ 10 (Olivieri Aff.); New York State
Conference of Mayors et al. Amicus Br. 7-9, 11-14; New Yorkers for Parks et al.
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Amicus Br. 20-22. Nor would a city agency be wise to allow public seating or
improve an area with trees, much less with a playground, such as Adrienne’s
Garden or Mercer Playground, to be operated on unused municipal property. See
A.6:2501-2502 ¶ 10 (Olivieri Aff.); New York State Conference of Mayors et al.
Amicus Br. 7-9, 11-14; New Yorkers for Parks et al. Amicus Br. 20-22. Indeed,
even the feared costs of having to defend against such lawsuits would likely deter
such beautification efforts. See New York State Conference of Mayors et al.
Amicus Br. 9. And the City’s Greenstreets program would likely come to a
screeching halt. See New York State Conference of Mayors et al. Amicus Br. 7-9,
11-14; New Yorkers for Parks et al. Amicus Br. 20-22.16
The record in this case confirms the high stakes of accepting Appellants’
rule. DPR manages more than 4,000 properties across the City, the majority of
which are not parkland, but rather are temporarily managed by DPR “to provide
recreational or open space benefits to New Yorkers, unless and until the site
transitions back to its primary municipal use.” A.6:2501 ¶¶ 8-9 (Olivieri Aff.).
16 The DOT’s popular Public Plaza Program might suffer a similar fate. Under that program, DOT accepts applications from not-for-profit organizations that want to transform underutilized street spaces into pedestrian plazas. See A.8:3231 ¶¶ 12, 13 (Forgione Aff.); see also NYC Plaza Program, http://www.nyc.gov/html/dot/html/pedestrians/nyc-plaza-program.shtml (last visited May 3, 2015). There currently are more than 20 Plaza sites. NYC Plaza Program Sites, http://www.nyc.gov/html/dot/html/pedestrians/publicplaza-sites.shtml (last visited May 3, 2015).
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Those arrangements, however, “would not be possible if such interim uses were
viewed as dedicating parkland, since other agencies would be unwilling to lose the
ability to make future use of the sites for their own purposes.” A.6:2502 ¶ 10
(Olivieri Aff.). Indeed, “if such interim uses were viewed as creating parkland,”
municipal agencies “would likely demand the termination of existing temporary
passive and active recreational uses on parcels under their jurisdiction in order to
avoid any question regarding the status of these properties.” Id. Given the breadth
of DPR’s management of non-parkland property across the City, a ruling in
Appellants’ favor by this Court would drastically restrict the public’s recreational
use of thousands of public spaces and end efforts to beautify (at least temporarily)
those same properties. And such a ruling would also put the City at risk of adverse
judgments with respect to each of those properties in suits by members of the
public claiming that that land has already been irrevocably dedicated.
While Appellants tout the virtues of public parks, their rule would yield
more urban blight, fewer beautified streets and plazas, and far less open green
space available for public recreational and others uses in cities, towns, and villages
across the State of New York. See New York State Conference of Mayors et al.
Amicus Br. 7-9, 11-14; New Yorkers for Parks et al. Amicus Br. 20-22. Even if
the common law did not compel the rejection of Appellants’ misguided legal
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standard, the grave consequences that would flow from it would require that same
result.
3. Appellants’ rule is singularly inappropriate in this case, where the landowner is the City and the property at issue is a street
Finally, Appellants’ bid to jettison owner intent in favor of public use as the
north star of the implied-dedication analysis is singularly inappropriate here, where
the landowner in question is the City of New York and the parcels at issue are
legally designated as streets. In particular, two blackletter principles of law
foreclose application against the City of any rule driven by “public use.” And
there is no authority for the proposition that city streets—which, like parks, are
held in trust for the public—can be converted into parkland through implied
dedication.
a. By elevating long continued public use to the “main determinant” of
dedication, Appellants’ rule would eviscerate the distinction between prescriptive
rights—those acquired through adverse possession or prescriptive easements—and
dedication as means of acquiring property. As McQuillin explains, “[d]edication is
to be distinguished from prescription in that, in the latter case, a user for a
prescribed number of years fixes the right without regard to the intent of the
landowner. Conversely, intent on the part of the landowner to transfer the property
is critical to a finding of dedication.” 11A McQuillin § 33:2, at 432. Put simply,
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landowner intent separates prescription from dedication. Id.; see id. § 33:3, at 439-
440 (common-law dedication differs from “prescription,” “which is based on a
long period of use”); see also Restatement (Third) of Property: Servitudes § 2.17
cmt. c (2000) (prescriptive rights “fulfill[] expectations fostered by long use”).
Critically here, the blackletter common-law rule is that prescriptive rights do
not ordinarily run against governmental bodies holding land in a governmental
capacity. See Restatement (Third) of Property: Servitudes § 2.17 cmt. e
(“Servitude benefits in land owned by the government and land held for public use
cannot be acquired by either adverse possession or prescription in the absence of
statute.”); see also, e.g., People v. Baldwin, 197 A.D. 285, 288 (3d Dep’t) (land
held by state as “sovereign in trust for the people” cannot be lost through adverse
possession ), aff’d, 233 N.Y. 672 (1922). Appellants’ request to transform “public
use” into the predominant concern in implied-dedication analysis—thus effectively
transforming the doctrine into one of prescription—would work an end-run around
that key limitation on prescriptive rights.
b. Appellants acknowledge that their vision of implied dedication rests
not on the City’s actual intent regarding the status of the DOT Strips, but instead
on principles of “estoppel.” Appellants Br. 34 & n.7, 38, 49-50. As Appellants
would have it, if the City “leads the public, over time to believe that a parcel of
public property is a park,” Appellants Br. 1, the City is estopped from saying
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otherwise now. Appellants’ amici are even more candid in asking that this case be
decided on grounds of “estoppel.” Law Professors Amicus Br. 15. That is not
only wrong; it also underscores the weakness in Appellants’ approach, as estoppel
does not run in these circumstances against the government.
It is established that “estoppel” is “foreclose[d]” “against a governmental
entity,” such as the City, “in all but the rarest cases.” Parkview Assocs. v. City of
New York, 71 N.Y.2d 274, 282 (1988) (municipality cannot be estopped from
enforcing zoning laws, “even where there are harsh results”); see Scruggs-Leftwich
v. Rivercross Tenants’ Corp., 70 N.Y.2d 849, 852, 853 (1987) (“estoppel may not
be invoked against a municipal agency to prevent it from discharging its statutory
duties” except in “extraordinary” circumstances); Gavigan v. McCoy, 37 N.Y.2d
548, 552 (1975) (“[E]stoppel does not lie against the State, a municipality or their
agencies where … the governmental body was exercising its statutory or regulatory
authority, and this is true irrespective of any representation or opinion by any of
that body’s officers or employees.”). Yet under the broad legal standard proposed
by Appellants, the City would be estopped from claiming that municipal land has
been dedicated as parkland whenever the public has treated it as such.
c. Relatedly, treating public use or perception as sufficient to transform
the legal status of the City’s streets would be especially problematic. The
“fundamental … reason why estoppel is not generally permitted against the
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government is that to do so may violate the doctrine of separation of powers” by
frustrating the ability of a government body to “discharge[] its statutory duties”
and by “plac[ing] the court in opposition to the elected branches of government.”
E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359, 369, 370 (1988).
A rule under which principles of estoppel could alter the legal status of the
City’s streets strikes at the heart of that concern. Under New York law, the DOT
Strips are held as mapped city streets in trust for the people of the City. See
N.Y.C. Charter § 383; N.Y.C. Admin. Code § 5-337(a). Decisions about the status
of those streets is committed to the City Council, which is entitled to approve or
disapprove all changes to the status of streets under standardized, statutory land-
use processes. See N.Y.C. Charter §§ 197-c(a)(1), 197-d(b), 199(b). That legal
status gives rise to rights and responsibilities of the City, as well as to neighboring
landowners. See N.Y.C. Charter §§ 197-c(a)(1), 197-d(b), 199(b).
Under Appellants’ rule, the City could forfeit the trust status of streets and
default on its attendant legal obligations simply through long public use of the land
for recreational purposes, thus circumventing the established democratic processes
for making critical decisions about street use. See A.8:3230 ¶ 10 (Forgione Aff.).
The City Council never voted to alienate or permanently alter the status of the
streets; no review process under ULURP or any other statute occurred; the public
had no opportunity to comment on any proposal to take the DOT Strips out of trust
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as streets and to commit them to park uses irrevocably; and neighboring
landowners were never permitted to invoke their rights with respect the legal status
of the streets. Having failed to make their case through available democratic
processes, Appellants now ask this Court, applying the common law of implied
dedication, to circumvent all that and to decide that the DOT Strips have in fact
been irrevocably demapped as streets and dedicated as parkland. This case thus
well illustrates the serious “separation of powers” concerns that underlie the rule
that estoppel does not run against the government. E.F.S. Ventures Corp., 71
N.Y.2d at 370.
II. THE APPELLATE DIVISION CORRECTLY HELD THAT APPELLANTS FAILED TO PROVE THE CITY’S UNEQUIVOCAL INTENT TO DEDICATE ANY PART OF THE DOT STRIPS AS PARKLAND
The Appellate Division correctly concluded that Appellants failed to
shoulder their burden of demonstrating that the City’s “acts and declarations
manifest[ed] a present, fixed, and unequivocal intent to dedicate” the DOT Strips
as parkland. A.1:5.17 Appellants contend that the Appellate Division gave
improper weight to certain factors (e.g., the fact that the City had long mapped the
DOT Strips as streets), and improperly discounted others (e.g., the public’s long
17 There is no dispute that Appellants bore the burden of proving dedication. See Winston v. Village of Scarsdale, 170 A.D.2d 672, 673 (2d Dep’t 1991) (citing Matter of City of New York, 239 N.Y. at 127-128); see 43 N.Y. Jur. 2d Dedication § 12 (2007).
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use of parts of the DOT Strips for recreation or leisure). None of Appellants’
criticisms has merit. More to the point, their arguments about the Appellate
Division’s weighing of certain evidence at the very most establishes that the record
was equivocal as to the City’s intent. That is insufficient to show dedication.
A. Appellants Failed To Prove The City’s Unequivocal Intent To Dedicate Any Part Of The DOT Strips As Parkland
1. The North LaGuardia Strip
To start, the North LaGuardia Strip—like the three other DOT Strips—was
acquired for the express purpose of use as a “street.” See A.6:2503 ¶¶ 14-16
(Olivieri Aff.). That fact is significant, as New York courts have consistently
recognized that the purpose of an acquisition is strong evidence of a landowner’s
intent.18 In fact, the City reaffirmed its intent to treat each of the DOT Strips as
street when it reacquired them in 1967 and 1968. Although the Lower Manhattan
Expressway—the project initially prompting acquisition of the Strips—was for all
intents and purposes dead, see supra p. 17 n.4, the deeds conveyed the land to the
18 See, e.g., Powell, 85 A.D.3d at 431 (no implied dedication in part because “Asphalt Green was not acquired by the City for park purposes”); Douglaston & Little Neck Coal. v. Sexton, 145 A.D.2d 480, 481 (2d Dep’t 1988) (no implied dedication where, among other things, the site was “acquired for other than park purposes”); see also Riverview Partners, 273 A.D.2d at 455-456 (implied dedication where “the subject property was purchased … for park purposes”); Croton-On-Hudson, 38 A.D.2d at 980 (implied dedication where land was “acquired for public park purposes”).
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City to be held “in trust for street purposes.” A.6:2347; A.6:2352; A.8:3126;
A.8:3131.
Consistent with its initial (and subsequently reaffirmed) purpose, the City
officially mapped the North LaGuardia Strip (and the other DOT Strips) as a street
in 1956. See A.6:2341, 2343 (Board of Estimate Cal. No. 90); A.6:2344 (map
alterations approved by Board of Estimate). New York law gives controlling force
to that fact. See N.Y.C. Admin. Code § 25-101 (“The city map is to be deemed
final and conclusive with respect to the location … of the streets[.]”); N.Y. Gen.
City Law § 29. Land mapped as a street is held in trust for the public, N.Y.C.
Charter § 383; N.Y.C. Admin. Code § 5-337(a), and any change to the legal status
of a street must be effected through prescribed legal processes, see N.Y.C. Admin.
Code § 5-432(a), (b); N.Y.C. Charter §§ 197-c, 197-d. In view of these and related
principles, New York courts have attributed significant force to how land is
identified on maps.19
The public has long been aware of the street status of the North LaGuardia
Strip (and the other DOT Strips): The map is publicly available, and indeed there
have been numerous, highly public efforts over the years to demap the DOT Strips 19 See Little Neck Coal., 145 A.D.2d at 481 (no implied dedication, in part, because land was “not designated on the composite map index as park”); see also Flack, 122 N.Y. at 115-116 (relying on the designation of streets on maps to ascertain an intent to dedicate); Brooklyn & Queens Transit Corp., 273 N.Y. at 398, 401-402 (relying in part on maps filed with the county as evidence of dedication).
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as street—including by some Appellants here. See, e.g., A.6:2506-2509 ¶¶ 22-32;
A.6:2493. Each of those efforts has been rejected by the City, evidencing an
ongoing, present intent to maintain the Strips as street.
Appellants do not dispute any of these facts, nor could they. Rather, they
contend that relying on these concrete manifestations of the City’s intent would
“obliterat[e]” the line between express and implied dedication. Appellants Br. 2, 5.
That concern is entirely misplaced, as shown by the cases cited above giving
significant weight to these facts in the implied-dedication analysis, and as discussed
in further detail below. See infra p. 83-85. These facts—equally applicable to each
of the DOT Strips—conclusively demonstrate the City’s intent to maintain the Strips
as street, and not to dedicate the land irrevocably for park purposes. But as to the
North LaGuardia Strip, and indeed as to each of the Strips, there is more.
In addition to being acquired for street purposes, mapped as a street, and
deeded to the City for street purposes, the portion of the North LaGuardia Strip
Appellants call “LaGuardia Park” has principally been used as a street. Consistent
with New York law’s definition of a “street” as including, among other things, a
“sidewalk,” N.Y.C. Admin. Code §§ 1-112(13), 5-430(4), the North LaGuardia
Strip has long enabled pedestrian traffic north-south along the east and west sides
of the Superblocks and connected with adjacent east-west thoroughfares.
A.8:3310-3311 ¶¶ 4-5 (Brown Reply Aff.).
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Indeed, until 2013, when Adrienne’s Garden was completed, the interior of
the Strip consisted solely of landscaped walkways and a central paved plaza with a
statute. There were no benches or seating, nor were there areas for play.
A.8:3311-3312 ¶¶ 5 (Brown Reply Aff.); see A.8:3316-3319 (photographs of the
North LaGuardia Strip). The Strip is an inviting and aesthetically pleasing
thoroughfare, not a park.20
The evidence upon which Appellants rely is all consistent with the North
LaGuardia Strip’s status as a beautified pedestrian thoroughfare. See, e.g.,
A.8:3155 ¶ 4.a (Steed Aff.) (describing Strip as “a popular spot for community
members to go for fresh air and walk among the greenery” (cited at Appellants Br.
55)). Appellants highlight (at 55) Adrienne’s Garden. But that project—which
was opened after the City’s approval of the Core Project—is a joint effort by DOT
and DPR through the Greenstreets program, and is largely funded by private
20 Appellants’ reliance (at 56-57) on the Second Circuit’s decision in Hotel Emps. & Restaurant Emps. Union v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534 (2d Cir. 2002), is baffling. The language they cite—to the effect that Lincoln Center Plaza was not a “traditional public forum” for First Amendment purposes notwithstanding the “ability of pedestrians to cross the Plaza”—has no bearing here. What is more, the Second Circuit emphatically rejected the implied-dedication claim in that case notwithstanding “that the Plaza is under the jurisdiction of the Parks Department and is defined as a ‘park’ in the Parks Department’s Rules & Regulations,” and likewise is listed as a park on DPR’s website. Id. at 548-549. That is, the Second Circuit found that the evidence Appellants principally rely on here “has little relevance with regard to park dedication.” Id. at 549.
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donations. See A.6:2516 ¶ 51 (Olivieri Aff.); see A.8:3312 ¶ 7 (Brown Reply Aff.)
(noting attendance of DOT and DPR officials at groundbreaking). The agreement
governing the project makes clear the site is “not intended to be formal or implied
dedicated parkland[].” A.6:2421 (Greenstreet Memorandum of Understanding
Between DOT and DPR, Feb. 9, 2007). It is impossible to reconcile that statement
with Appellants’ assertion that the City intended for the Strip to be parkland. See
Powell, 85 A.D.3d at 431 (no implied dedication where “assignment” to DPR
“include[d] a condition that land not be formally ‘mapped’ as parkland”); cf.
Lazore v. Board of Trs. of Vill. of Massena, 191 A.D.2d 764, 766 (3d Dep’t 1993)
(finding no intent to dedicate based in part on memorandum from public
commission to village board specifying that recreational uses of land were
“flexible” and not “concrete”).
Appellants also cite the “‘extensive use of signage indicating some amount
of management of the properties’” by DPR. Appellants Br. 55. As an initial
matter, signage has little legal import because DPR signs simply reflect that certain
property is being temporarily managed by DPR, not that the City has intended
irrevocably to dedicate the land as parkland. See supra p. 15; see also Hotel Emps.
& Restaurant Emps. Union v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d
534, 549 (2d Cir. 2002) (no implied dedication despite website references to parks
and DPR jurisdiction over property); Pearlman, 307 N.Y.S.2d at 1015-1017 (sign
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stating, “Park Closed—No Trespassing Between Sunset-Sunrise” and references to
“Mill River Park area” were not sufficient indicia of intent to dedicate).
Appellants’ claim is overstated in any event. The only DPR sign on North
LaGuardia Strip is at Adrienne’s Garden, A.8:3311 ¶¶ 6-7 (Brown Reply Aff.), and
that sign gives equal prominence to DOT, A.5:2014 (photograph of sign). A
community group has placed two small signs on the Strip stating “[t]his park was
built by the Friends of LaGuardia Place.” A.8:3309, 3317 (Brown Reply Aff.).
They are not DPR signs and do not bear DPR insignias.
Finally, Appellants argue that the Appellate Division improperly disregarded
the trial court’s “finding” that the Strip was used as a park. Appellants Br. 56
(citing C.P.L.R. § 5712(c)(1)). But, as explained above, see supra p. 35 n.12,
given the posture of the case—an Article 78 proceeding properly decided on a
paper record made up of public records, agency documents, and affirmations
without a hearing—the trial court made no “findings of fact” to which the
Appellate Division owed deference or a duty to specify it was modifying under
C.P.L.R. § 5712(c)(1). Even if the trial court did make factual findings, Appellants
acknowledge the Appellate Division is not bound by them, and its determination
that the landscaped walkways on LaGuardia Strip are used principally for
pedestrian traffic (despite some beautification) is hardly “contrary to common
sense.” Appellants Br. 56; see A.8:3310-3311 ¶¶ 4-5 (Brown Reply Aff.).
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2. The South LaGuardia Strip
Like the North LaGuardia Strip, the South LaGuardia Strip was acquired for
street purposes, officially mapped as a street, maintained as a street in the face of
public efforts to demap it, and has been used by the public principally as a
thoroughfare, with a paved walkway running north-south along each side of the
Strip. A.8:3312 ¶ 8 (Brown Reply Aff.).
Appellants argue that a portion of the Strip—LCG, the community garden—
has been impliedly dedicated as “parkland” based on “continuous[]” public use for
“recreation.” Appellants Br. 57. Even assuming that use is probative of intent—
notwithstanding the City’s manifest intent to maintain the Strip as street—LCG is
not implied parkland.
LCG is surrounded by a chain link fence that is gated and locked. A.8:3312-
3313 ¶¶ 8, 10 (Brown Reply Aff.); A.8:3320 (photographs of LCG). It is run by a
private association, which restricts public access to the garden to certain seasons.
See A.6:2054 (LCG Fact Sheet); A.8:3313 ¶ 10 (Brown Reply Aff.); see also
A.8:3221 ¶ 21 n.1 (Benepe Aff.). Those facts all but foreclose Appellants’
assertion that certain individuals’ use of LCG gives rise to an inference the City
intended to dedicate the land as public parkland.
The documents governing the use of LCG underscore the City’s intent not to
dedicate. Since 1981, LCG has operated under a yearly lease or license from the
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City. These agreements refer to the LCG site as a sidewalk or street, and make
clear that LCG enjoys only interim use of the property. See supra pp. 23-24. For
example, the 2009 license states the agreement “does not … indicate any intention
to dedicate the Premises for park use.” A.6:2481. That explicit disclaimer further
buttresses the conclusion that the City did not intend to dedicate the Strip as
parkland.
Appellants place great weight on LCG being part of the GreenThumb
Program. Appellants Br. 57-58. But nothing about that program indicates the
City’s intent to dedicate the land as park. Under GreenThumb, DPR provides
guidance and oversight to community gardens across the City, including gardens
located on private property. See A.6503 ¶ 13 (Olivieri Aff.). About 600 gardens
are part of the program, including gardens like LCG under DOT’s jurisdiction. Id.
It has long been DPR’s position that even GreenThumb gardens within its
jurisdiction are not parkland “unless specifically mapped as such.” A.8:3220-3221
¶ 21 (Benepe Aff.). Indeed, were the Court to assign significant contrary weight to
a parcel’s participation in the GreenThumb program, the result would be to
jeopardize the City’s continued support for gardens across the City, at least on
public property. See supra p. 56.21
21 Appellants’ reliance (at 58) on an affidavit of former Commissioner Stern for the proposition that the City was aware it was “holding … out” LCG to the public as a park is unavailing. That affidavit says only that DPR “would embrace”
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3. The North Mercer Strip
The North Mercer Strip also was acquired for street purposes, mapped as a
street, and deeded to the City as a street. Appellants dispute none of that.
Appellants instead rely on the opening and operation of the Mercer
Playground, which, they say, shows the City’s intent to dedicate the land as park.
See Appellants Br. 53-54. But the history of Mercer Playground cuts decisively
against them. The playground was not conceived of by the City, but by a
community group. A.8:3313-3314 ¶ 12 (Brown Reply Aff.). The organization
raised funds from private donors for the playground for about 10 years. A.1:107
¶ 31 (Am. Verified Petition). During that time, the local community board,
Community Board 2, led a formal effort to “permanently guarantee[] the[] strips,”
including the Mercer Strip, “as park land,” by seeking their transfer to DPR.
SA.484 (Community Board 2 Resolution, Mar. 31, 1995); see A.6:2507-2508
¶¶ 27-29, 44 (Olivieri Aff.). Designating the DOT Strips as parkland, DPR
explained, required that they “first be demapped as public streets.” A.6:2508 ¶ 29
(Olivieri Aff.). NYU supported the playground—and agreed to contribute to it
financially—but opposed demapping because of concerns about losing street
frontage needed to access NYU buildings. A.8:3314 ¶¶ 13, 15 (Brown Reply a formal transfer of LCG from DOT at one time, and that some unnamed DPR officials mistakenly “were … under the impression” that had occurred. A.8:3144-3145 ¶ 19(ii) (Stern Aff.). That is hardly reliable evidence of the City’s intent to dedicate, particularly given that the land was under DOT’s jurisdiction, not DPR’s.
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Aff.); A.6:2508-2509 ¶ 30 (Olivieri Aff.); see also A.6:2417-2418 (NYU Letter to
DPR, DOT, with copy to Community Board 2, Mar. 22, 1996) (explaining that
“demapping may limit the University’s rights”).22
Ultimately, the City did not demap the North Mercer Strip, which remains a
street. Instead, the Mercer Playground operates under a permit issued by DOT
granting DPR “temporary use and occupation” of the property. A.6:2497 (Letter
from DOT to DPR Issuing Permit, Apr. 18, 1995); see also A.6:2419 (Letter from
DPR to NYU, Aug. 9, 1996) (explaining that DPR was “granted a permit” for the
Mercer Playground, and did “not intend to seek … a demapping” of “that portion
of Mercer Street as roadbed”). DPR must “vacate … and return” the property upon
DOT’s request. A.6:2497; see also Powell, 85 A.D.3d at 431 (no implied
dedication where “assignment” to DPR included condition that “land not be
formally ‘mapped’ as parkland”).
In view of this history, Appellants focus (at 53-54) on DPR’s role in
managing the Mercer Playground as well as DPR signs and website references to
22 Appellants cite (at 53) a brochure distributed at the Playground’s opening ceremony in 1999 stating that DOT transferred jurisdiction over the Playground to DPR in 1997. A.8:3171 (Opening Day Brochure). That was incorrect, as Appellants have conceded. A.1:115-116 ¶ 58 (Am. Verified Pet.). New York Civic, founded and run by former DPR Commissioner Stern, seems to suggest the contrary in its amicus brief. See New York Civic Amicus Br. 26. But it ignores that then-Commissioner Stern has rightly conceded that “formal transfer [of Mercer Playground] did not take place.” A.8:3146 ¶ 19(iii) (Stern Aff.).
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the Playground. But DPR often manages property under the jurisdiction of other
agencies, and when it does so it sensibly identifies DPR as the managing city
agency. As former Commissioner Benepe explained, DPR may use the word
“park” to refer to property under its temporary supervision “to put the public on
notice that it may enter and make use of the amenities provided in these areas.”
A.8:3218 ¶ 12 (Benepe Aff.). That signage does not bear the dispositive weight
Appellants assign to it. See supra pp. 15, 68-69.
4. The South Mercer Strip
Finally, as the trial court and the Appellate Division agreed, the Dog Run on
the South Mercer Strip was not impliedly dedicated as parkland. See A.1:5 (1st
Dep’t Op.); A.1:43, 51 (Trial Op.).
Like the other DOT Strips, the South Mercer Strip was acquired as a street,
mapped as a street, and maintained as a street despite public efforts to demap it.
Appellants do not argue otherwise.
The part of the Strip that Appellants contend is parkland has been used as a
private dog run with no City involvement for more than three decades, foreclosing
any finding of implied dedication. The Dog Run is gated, locked, and operated by
a private association that limits its membership and charges for access. See
A.4:1425-1428 (Apr. 25, 2010 Hr’g Tr. on DEIS, Gottlieb Testimony); see also
A.1:157 (photograph of Dog Run). DPR has had no involvement with the Dog
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Run and there is no DPR signage. See, e.g., A.1:43 (Trial Op.). Such “restricted”
use by a “non-City” private association is inconsistent with any intent to dedicate
the land as public parkland. Powell, 85 A.D.3d at 431; see also Law Professors
Amicus Br. 10 n.2 (declining to argue the Dog Run has been impliedly dedicated).
Appellants argue that “permitting access to members of the public who pay a
nominal fee for access to a privately-managed part of a park is fully consistent with
valid public park purposes.” Appellants Br. 67. That is a counterintuitive
proposition, and one the case law does not support. The cases Appellants cite all
concern whether a fee can be charged by entities—a restaurant, batting cage, golf
club, etc.—on land that is indisputably parkland. See, e.g., Union Sq. Park Cmty.
Coal., Inc. v. N.Y. City Dep’t of Parks & Recreation, 22 N.Y.3d 648, 652-653
(2014). Those cases provide no support for the odd suggestion that land fenced off
from the public, with access contingent on membership fees collected by a private
gatekeeper, can be impliedly dedicated as public parkland by such use.
Ignoring three decades of decidedly non-park use, Appellants contend that,
prior to the construction of the Dog Run, “the public initially used the area as a
sand lot ball field.” Appellants Br. 65. But the most that can be gleaned from
elliptical references to a sandlot in the record is that “the Coles gym” (which sits
on NYU property)—not the Dog Run—was built “on land previously used as a
sandlot ball field.” A.2:612 (Community Board No. 2 Letter, Mar. 11, 2012), cited
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at Appellants Br. 19; cf. A.5:1911 (June 29, 2010 Tr. of Minutes of Subcommittee
Hr’g, Rackow Testimony) (oblique reference by resident to a “sandlot down
there”), cited at Appellants Br. 19. That highly equivocal evidence does not even
establish that the land that is now the Dog Run was in fact used as a sandlot; much
less does it amount to “unmistakable” evidence of the City’s intent to dedicate the
land as parkland for all time. Niagara Falls, 66 N.Y. at 269; Holdane, 21 N.Y. at
477.
* * *
In short, the record establishes that the City acquired the Strips for street
purposes, has officially mapped the Strips as streets, and has rejected public efforts
to change that legal status over the decades. The contrary indications of intent
pointed to by Appellants—consisting almost entirely of public use and a few DPR
signs—is thin and, at best, equivocal. There is thus no basis on which to conclude
that the City manifested an unmistakable intent to dedicate.
B. Appellants’ Criticisms Of The Appellate Division Are Misplaced
Appellants cavil with the Appellate Division’s approach to the record
evidence, but none of their objections is persuasive. What is more, none gets
Appellants anywhere near establishing the requisite “unequivocal” evidence of the
City’s intent to irrevocably dedicate the Strips as parkland.
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1. The Appellate Division did not disregard the public’s use of the DOT Strips
Appellants and their amici contend principally that the Appellate Division
“disregard[ed]” long public use, which in their view, is the “paramount
determinant” of implied dedication. Appellants Br. 32, 43; see id. at 43-51; see
also New York State Legislators Amicus Br. 16. That is an incorrect statement of
the law, for all the reasons discussed above. See supra Part I. That objection also
mischaracterizes the decision below.
The Appellate Division acknowledged that the City had encouraged public
use of the DOT Strips and that “circumstances surrounding the use of the land”
could inform the implied-dedication analysis. A.1:4-5. But that evidence provided
one data point among many, and the Appellate Division appropriately concluded
that contrary indications of the City’s intent not to dedicate were substantial: The
Strips have been mapped as streets and have been principally used as pedestrian
thoroughfares; the City has rejected repeated public requests to demap the streets;
and DPR’s role, if any, was temporary and provisional. A.1:5. The Appellate
Division’s conclusion that this evidence failed to establish the City’s
“unequivocal” intent to dedicate is amply supported. See supra Section II.A. At
the very best, the evidence of long public use of certain of the Strips could have
made the record ambiguous; in that case, no implied dedication could be found.
See, e.g., Holdane, 21 N.Y. at 478; see supra pp. 45-46.
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Appellants also fault the Appellate Division for ignoring that the City
“actively promoted” public use of the DOT Strips. E.g., Appellants Br. 52. That
fact would resonate only if Appellants were correct that implied dedication could
function as a species of estoppel law against the City; it cannot, for the reasons
discussed above. See supra pp. 60-63. In any event, the fact that the City
promoted use of the DOT Strips as beautified and inviting public thoroughfares
and for other public purposes is neither surprising (indeed, it is presumably what
one would hope a City would do with land suitable for temporary recreational or
other public uses), nor is it evidence of intent to dedicate the Strips irrevocably to
that purpose. See 4 Tiffany § 1102, at 582 (“Dedication will not be inferred from
mere permissive use of unenclosed land.”); 11A McQuillin § 33:35, at 567 (“mere
permissive use of land as a street or the like … does not, by itself, constitute a
dedication nor demonstrate a dedicatory intention”); New York Cent. & Hudson
River R.R., 141 A.D. at 766 (citing precedent for the view that “permissive” use of
property by the public “furnish[es] no evidence that the [owner] intended to
dedicate the way to public use”); see also New Yorkers for Parks et al. Amicus Br.
11-20.
2. The Appellate Division did not improperly rely on “arcane” evidence
Consistent with their estoppel theme, Appellants contrast their reliance on
long public use with the Appellate Division’s citation to allegedly non-public
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evidence of the City’s intent not to dedicate the Strips as parkland. Indeed, eleven
times in their brief, Appellants fault the Appellate Division for relying on such
“arcane” documents. Appellants Br. 4, 5 (twice), 7, 28, 29, 45, 48, 51, 64 (twice).
Appellants’ amici say the same. See New York State Legislators Amicus Br. 17
(criticizing reliance on “a few arcane, internal City documents”). Such “‘secret’”
evidence, they argue, is irrelevant and an improper basis for ascertaining the legal
status of the Strips. Appellants Br. 48-49; see also New York State Legislators
Amicus Br. 17-18.
There was nothing “arcane” or “secret” about the City’s intent, or the
evidence the Appellate Division cited to discern it. Most prominently, the City
map—which has long shown the Strips to be streets—is publicly available. See
N.Y.C. Charter § 198(c) (“The city map shall be on file in the office of the
department of city planning, and certified copies thereof and of all changes thereto
shall be filed in the offices of the corporation counsel, of the city clerk and of the
borough president of the borough in which the land shown on the map is located
and in the office in which conveyances of real estate are required to be recorded in
the county in which the land shown on the map is located.”). Appellants may think
the mapping of the Strips is irrelevant—they are wrong on that point—but they can
hardly dispute that that fact was publicly known.
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Appellants and their amici appear to think that anything short of a sign
posted at the playground gates announcing “THIS IS NOT A PARK” is “arcane”
or “largely invisible” to the public. See Appellants Br. 4; New York State
Legislators Amicus Br. 15. But the record reveals deep engagement—over
decades—around the status of the parcels by interested members of the public who
were necessarily aware of the land’s status. For example, the local community
board and other organizations—including certain of the Appellants—made
repeated efforts to demap the parcels as streets and to map them as parks. See
supra pp. 18-19. However disappointed Appellants may be in their failed efforts to
demap the Strips, they can hardly now be heard to contend that the Strips’ street
status was obscure. Nor, in view of this history, can Appellants’ amici credibly
contend that these repeated efforts—spanning decades—were “largely obscured
from the public eye.” New York State Legislators Amicus Br. 17-18.
Many other documents confirming the City’s intent that the DOT Strips
remain streets were known or available to the public. For example, the licensing
arrangements between the City and the private group running the LaGuardia
Corner Gardens were negotiated by—and thus undeniably known to—that group
(LCG Inc.) and its members. And LCG Inc., in turn, made clear to the public in its
“Fact Sheet” that, notwithstanding that “1000+ petitioners have signed a petition to
transfer us to Parks Dept/Parkland,” the parcel was “owne[d]” by DOT. A.6:2054-
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2055. The record also contains evidence of frequent correspondence between
DOT and concerned community members making clear the DOT’s intent to
maintain the Strip as street. See A.8:3239-3250 (correspondence between DOT
and citizens from 2006-2008); A.8:3233-3234 ¶¶ 17-21 (Forgione Aff.). Indeed,
Community Board 2—the body charged with representing community interests—
long understood that to be the case. See A.8:3233 ¶ 17 (Forgione Aff.) (discussing
2003 Community Board 2 resolution acknowledging the LCG “‘is on property
owned’” by DOT and that DOT must provide a “‘permit’” for its use). This is
hardly the “‘low visibility decision making’” Appellants’ amici indict. New York
Civic Amicus Br. 12.
Finally, Appellants claim, without citation, that the specific terms of the
Mercer Playground permit were “unbeknownst to the public.” Appellants Br. 64
n.18. The record suggests otherwise. Appellants ignore, for example, that the
permit was in fact “requested by … Community Board 2.” A.6:2497 (emphasis
added). There is no reason to think the Board made that request without due public
deliberation, or that the Board concealed the permit or its terms from its
constituents. And, in any event, even accepting Appellants’ unfounded claim, the
permit itself conclusively demonstrates the City’s intent to maintain the Strip a
street, see Powell, 85 A.D.3d at 431, and there was nothing “secret” about that
intent. Indeed, the permit simply confirmed what the public undoubtedly did
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know: that the City repeatedly (including during the mid-1990s) declined public
requests to demap the Mercer Playground for use as a permanent park. See supra
pp. 18-19, 72-73; see also A.8:3222 ¶ 25 (Benepe Aff.) (affirmation from former
DPR Commissioner that community members were told DPR would not pursue
demapping or dedication of North Mercer Strip); A.6:2500, 2508-2509 ¶¶ 6, 29-31
(Olivieri Aff.).23
3. Mapping and declining to demap are proper and significant evidence of the City’s intent
Appellants take a decidedly different tack with respect to the evidence that
the City mapped the Strips as streets and rejected efforts to map them as parks.
Appellants’ problem with this evidence is not that it is “arcane,” but rather that it is
too suggestive of the City’s intent. That is, Appellants contend that these very
public manifestations of the City’s intent are “beside the point,” Appellants Br. 45,
because reliance on such concrete evidence would “obliterat[e]” the distinction
23 Amici law professors’ lengthy discussion of cases involving “secret plans” or undisclosed intent is thus entirely beside the point. Law Professors Amicus Br. 22. Indeed, none of the non-New York cases amici cite holds that public use alone establishes dedication in the face of contrary evidence of intent. See, e.g., Henry Walker Park Ass’n v. Mathews, 91 N.W.2d 703, 709-710 (Iowa 1958) (explaining that public “user alone is not sufficient to establish” dedication; finding sufficient evidence based on, among other things, non-payment of taxes and failure by owner to divide tract into lots); Village of Benld v. Dorsey, 142 N.E. 563, 564-565 (Ill. 1924) (intent to dedicate established where an agent for the owner made blueprints of a recorded plat showing the land marked as a park; told purchasers that the land was a park; represented to the village that the land was a park; and failed to pay taxes on the property).
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between express and implied dedication, id. 2; see also New York State Legislators
Amicus Br. 17-18 (reliance on “factors” such as mapping and failed efforts to
demap “confuse what would be relevant for express dedication with those
applicable to implied dedication”). That is incorrect. The distinction between
express and implied dedication is firmly established and does not turn in any way
on a court’s consideration of written evidence in undertaking an implied-dedication
analysis.
“A parcel of land may become a park … expressly, such as by restrictions in
a deed or legislative enactment[.]” Levine v. Village of Island Park Bd. of Zoning
Appeals, 95 A.D.3d 1125, 1127 (2d Dep’t 2012). Implied dedication occurs when
there is no such restrictive deed or legislative enactment, but evidence of the
landowner’s “acts and declarations” nonetheless unequivocally manifests his intent
to dedicate the land as parkland. Cook, 61 N.Y. at 454. That “evidence … may be
direct or circumstantial.” Lehigh & Hudson River Ry. Co. v. Village of Warwick,
164 A.D. 55, 58 (2d Dep’t 1914). Circumstantial evidence might consist, for
example, of circumstances surrounding acquisition of the parcel, whether an owner
pays taxes on the property, how the owner fences the land, and how the public uses
the land. See, e.g., 11A McQuillin § 33:33-33:34, at 558-565. The defining
feature of circumstantial evidence, of course, is that it requires an inferential step to
determine intent. Direct evidence does not require such inferences. In the context
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of implied dedication, direct evidence, for example, may consist of a landowner’s
decision to plot a strip of land as a street on a map, see Loehfelm, 102 N.Y. at 3
(dedication as street was “proved by the map of the original owner”); In re
Prospect Street, 135 N.Y.S. 1034, 1035 (Sup. Ct. Queens County 1912) (private
maps filed with county and conveyances with references to maps were “sufficient
to show an offer to dedicate the land”), or oral agreement to dedicate the land, e.g.,
Tomlinson v. Town of Southampton, 143 A.D. 487, 488 (2d Dep’t 1911).
Here, the maps (and the City’s repeated, public decisions not to demap)
constitute powerful, public, direct evidence of the City’s intent with respect to the
DOT Strips. See, e.g., 11A McQuillin § 33:33, at 551-552 (filing a map or plat
designating property as “streets, alleys, parks or other public spaces” is “one of the
clearest ways of declaring an intention to dedicate,” although that inference can be
overcome by other circumstantial evidence of intent).24 Indeed, given that the City
24 Appellants cite Brooklyn & Queens Transit Corp. to argue that this Court does not assign “controlling weight to official maps.” Appellants Br. 46. The decision does not say that and in fact confirms that the mapping of a street is strong evidence of a landowner’s intent. The Court affirmed the trial court’s conclusion that “there had been a dedication” of a strip of land as a public highway in 1865 and 1871, 273 N.Y. at 402, based on “map[s]” filed with the City “plott[ing] the land into lots with streets” and designating one street as “Palmetto Street,” id. at 398. The Court did add that a subsequent purchaser of the land did not intend to “continu[e]” the original owner’s “dedication,” despite a reference to Palmetto Street on a route map. Id. at 401. But that was based on a factual finding—completely irrelevant here—that the later map reference was to a “Palmetto street above and below the disputed strip.” Id. at 401-402. Here, the “disputed strip[s]” are inarguably themselves mapped as street.
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—unlike an individual landowner—is a collective entity, the official public acts the
City undertakes through the formal processes of its agencies and deliberative
bodies are particularly probative of the City’s intent: How else could a City (as
opposed to individual departments or officials) express its unequivocal intent?
That evidence—coupled with other evidence of the City’s intent, see supra Section
II.A—far outweighed the circumstantial evidence Appellants produced, which
consisted largely of public use as well as assertions that some members of the
public thought the land was parkland. New York courts have weighed these types
of evidence for more than a century, and both express and implied dedication
remain important and distinct doctrines in the case law.25
4. The Appellate Division’s ruling does not threaten the public trust doctrine
Appellants finally resort to hyperbole, prognosticating that application of the
settled legal standard for implied dedication threatens the “continued vitality of the
25 Appellants cavil that reliance on failed demapping efforts creates an “unwarranted windfall” for NYU because, they assert, NYU was the chief opponent of demapping. Appellants Br. 63. That complaint is doubly flawed. First, there is nothing “perverse,” id., about NYU exercising its legal rights as an adjoining landowner to oppose demapping. It is precisely because demapping can adversely affect the rights and interests of landowners (for example, by making the property landlocked or more difficult to develop) that New York law provides such protections. See, e.g., N.Y.C. Charter §§ 197-c, 199. Second, it was ultimately the City—not NYU—that made the decision not to demap the streets. And it is the intent of the City, manifest in its acts and declarations, that matters to implied dedication.
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Public Trust Doctrine.” Appellants Br. 1. Far from it: The public trust doctrine
and the unequivocal-intent standard for implied dedication are distinct, and they
have always coexisted harmoniously.
The public trust doctrine recognizes the sanctity of parkland, and holds “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.” Friends of
Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 630 (2001) (internal
footnote omitted). The doctrine and its protections quite obviously apply only to
parkland. See, e.g., Capruso v. Village of Kings Point, 23 N.Y.3d 631, 638 (2014)
(addressing application of public trust doctrine only after noting defendants’
“conce[ssion] that the Western Corner is dedicated parkland”). The implied-
dedication doctrine answers the predicate question of whether land is in fact
parkland. The doctrines are sequential and complementary, not in tension with
each other. Whether the parcels on the DOT Strips are parkland—the only
question presented in this case—is resolved by the implied-dedication doctrine.26
Indeed, to the extent the public trust doctrine is relevant here at all, it cuts
against Appellants. Streets, like parks, are protected by the public trust doctrine,
26 For the same reason, the State Legislators’ assertion that the Appellate Division’s decision “displace[s] the State from its position as trustee over parkland” makes no sense. New York State Legislators Amicus Br. 2-3. The State is undoubtedly a “trustee over parkland,” but that is beside the point. The question here is whether any part of the DOT Strips is parkland in the first place.
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see New York State Pub. Employees Fed., AFL-CIO by Condell v. City of Albany,
72 N.Y.2d 96, 101 (1988), and the deeds by which the City acquired the Strips
required that they be held “in trust for street purposes,” see supra p. 18. Indeed,
New York law declares city “streets”—like “parks”—“to be inalienable,” N.Y.
Gen. City Law § 20(2), other than through the democratically accountable
demapping process established by statute, see supra pp. 13-14. To permit city
officials to alienate mapped streets by implication would contravene these statutes
and nullify the public trust that protects city streets in New York.
Appellants are similarly wrong that the Appellate Division’s decision “gives
local governments a clear path to evading the Public Trust Doctrine.” Appellants
Br. 50. A municipality’s obligations under the public trust doctrine kick in only
when the land at issue is dedicated, expressly or impliedly, as park. And
dedication occurs only as a result of the municipality’s unequivocal intent to
irrevocably surrender its right to use the land for any non-park purpose. If a city
does not intend its property to become parkland, and hence subject to the public
trust doctrine, that choice is not an “evas[ion]” of anything. It reflects the City’s
decision on how to use its property.
Finally, the Appellate Division’s decision does not threaten democratic
accountability by permitting city officials to “reap[] the attendant political
rewards” of promoting parks while at the same time “retain[ing]” secret “unilateral
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authority to alienate parkland without legislative approval.” New York State
Legislators Amicus Br. 18. For one thing, the City’s decision to maintain the legal
status of the Strips as streets was anything but “obscured from public view.” Id.
Rather, it was subject to long and public debate. See supra pp. 18-19. Nor was the
City’s later decision to permit the use of the Strips as part of the Project hidden
from the public—that decision, as well, was made through public and
democratically accountable processes. See supra pp. 29-34. Equally important,
amici’s argument ignores the enormous public benefits that result when local
officials temporarily open up municipal property for public use as parks,
playgrounds, and gardens, particularly in a space-starved city like New York. The
rule proposed by Appellants and their amici would blunt public officials’
incentives to do so. See supra p. 55-59.
III. THE COURT SHOULD REMIT OR REJECT APPELLANTS’ REMEDY ARGUMENTS
Appellants sought leave to appeal on one legal question: whether parcels on
the DOT Strips had been impliedly dedicated as parkland. Having done so, they
now invoke this Court’s “remedial authority” and ask it to address the scope of the
trial court’s remedy, Appellants Br. 69, a fact-bound issue of no broad legal import
and one which the Appellate Division did not reach. In the event this Court
disagrees with the Appellate Division and concludes some part of the DOT Strips
was impliedly dedicated as parkland, NYU respectfully suggests that the most
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sensible course would be to leave remedy issues to the Appellate Division in the
first instance or, if the Court reaches the same conclusion as did the trial court with
respect to the four parcels, to impose the remedy adopted by the trial court.27
Should the Court take up Appellants’ remedy arguments on the merits, it
should reject them.
A. Even If Any Part Of The DOT Strips Is Parkland, The City Complied With SEQRA
Appellants contend that a decision by this Court that some part of the DOT
Strips is dedicated parkland would render the City’s SEQRA review unlawful,
requiring “annulment, remand, and reconsideration” of the Project. Appellants Br.
73.28 Specifically, they charge that, if parts of the DOT Strips are parkland, then
“[t]he City committed an egregious legal error by failing to consider the parcels as
27 See, e.g., Crawford v. Liz Claiborne, Inc., 11 N.Y.3d 810, 813 (2008) (remanding where Appellate Division “ha[d] not had an opportunity to pass on the propriety of Supreme Court’s grant of summary judgment on the merits”); Harris v. Hirsh, 86 N.Y.2d 207, 209 (1995) (per curiam) (“remit[ting] to [the Appellate Division] for a consideration of the arguments it failed to address due to its prior disposition”). 28 SEQRA’s “purpose” is to ensure that “agency decision-makers focus attention on environmental concerns.” Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 416 (1986). It requires an agency to take a “‘hard look’” at the environmental effects of certain projects. Id. at 417. Both the trial court and the Appellate Division found that the City’s approval of the Project—which comprised a long and searching environmental review process, see, e.g., A.7:2636-2637 ¶ 75 (Brown Aff.)—complied with SEQRA. See A.1:5 (1st Dep’t Op.); A.1:69 (Trial Op.).
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parkland” in the SEQRA review, the remedy for which is to “annul the approvals.”
Id. at 70-71. That argument fails at each step.
The gravamen of Appellants’ challenge is that, if parts of the DOT Strips are
parkland, then the City’s prior analysis failed to account for the special
environmental concerns implicated by that status. Appellants are wrong. SEQRA
requires, among other things, an agency to analyze the effects of proposed projects
on “open space.” 6 N.Y.C.R.R. § 617.7(c)(1)(viii); see A.2:239-240 (FEIS)
(summary of open-space analysis). The authoritative regulatory guidance for
preparing environmental impact statements classifies public parks—as well as
“playgrounds,” “public plazas,” and “[o]utdoor schoolyards,” and other areas—as
“open space.” CEQR Technical Manual 7-1 (2010). With respect to open space,
an agency is required to “determine whether or not a proposed project would have
a direct impact resulting from the elimination or alteration of open space and/or an
indirect impact from overtaxing available open space.” Id.
Here, the City’s prior analysis dutifully treated relevant parts of the DOT
Strips as open space for environmental purposes.29 And the FEIS undertook a
29 The Mercer Playground was treated as “[p]ublicly accessible open space,” A.2:451 (FEIS), and both LCG and the Dog Run were treated as “[p]rivate open space,” due to limited public access, A.2:452 (FEIS). The relevant portion of the North LaGuardia Strip, referred to in the statement as the “LaGuardia Landscape,” was not treated as either public or private open space “because it does not provide usable recreational areas.” A.2:449 (FEIS). That space was nevertheless
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thorough analysis of the effects of the Project on that open space, both in
quantitative and qualitative terms. See A.2:440-493 (FEIS, Chapter 5 “Open
Space”). The open-space analysis included, among other things, assessments of
noise, air pollution, traffic, shadows, and urban design. See, e.g., id.; SA.14-21
(FEIS, Chapter 8 “Urban Design and Visual Resources”); SA.22-28 (FEIS,
Chapter 14 “Transportation”); SA.29-31 (Chapter 15 “Air Quality”); SA.32-R.33
(FEIS, Chapter 17 “Noise”). Because parks are but one type of open space, the
FEIS’s thoroughgoing analysis of the open-space impacts of the Project satisfied
SEQRA’s “hard look” requirement—regardless of whether the land is parkland.
Appellants cite nothing in SEQRA’s text or implementing regulations to the
contrary. Instead, they assert that the comprehensive open-space analysis in the
FEIS cannot “substitute[] for environmental analysis of the plan’s impact on
parks.” Appellants Br. 72. But the only reason they offer is that, under the public
trust doctrine, parkland may not be alienated. See id. at 72-73. That is a non
sequitur. Whether the public trust doctrine would bar alienation is a distinct
question from whether the City has complied with SEQRA, the purpose of which
is to assess environmental impacts.30 Appellants identify no reason why the FEIS
examined both quantitatively and qualitatively as part of the City’s open-space analysis. Id.; SA.150 (FEIS). 30 To be sure, alterations to the Project in the event of a determination that parts of the Strips are parkland might require additional environmental review. But
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would need to discuss any additional environmental effects had the parcels been
classified as “parkland” rather than “open space.”
Appellants’ cases are not to the contrary. See Appellants Br. 71-72. In New
York City Coalition to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337, 349-
350 (2003), the City failed entirely to “identify” a recognized environmental harm,
“lead dust[,] as a relevant area of concern or explain its determination to omit this
substance from the [hazard] definition.” Similarly, Chinese Staff & Workers
Association v. City of New York, 68 N.Y.2d 359, 368 (1986), involved the City’s
failure to assess an entire category of statutorily required environmental effects.
And Bronx Committee for Toxic Free Schools v. New York City School
Construction Authority, 20 N.Y. 3d 148, 152, 156-157 (2012), held only that the
School Construction Authority needed to prepare a supplemental environmental
impact statement where the initial statement omitted any analysis of the long-term
maintenance and monitoring of engineering controls at a remediated site. Here, the
FEIS fully analyzed the Project’s effects on the parcels in its open-space analysis.
Second, even were additional SEQRA review necessary, the remedy is not to
“annul the approvals.” Appellants Br. 71. SEQRA regulations provide that where
that is speculation at this point. For example, any significant changes in construction staging that Appellants hypothesize as necessary to avoid alienation (at 73) would be properly analyzed through a supplemental environmental review, as discussed below. See infra p. 93.
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there is “newly discovered information” or “a change in circumstances related to
the project” the lead agency may require a “supplemental EIS” to address “specific
significant adverse environmental impacts not addressed or inadequately addressed
in the EIS.” 6 N.Y.C.R.R. § 617.9(a)(7). No annulment is required, and the
decision whether to require a supplemental review is entrusted in the first instance
to the City Planning Commission as the lead agency. See Matter of Jackson v.
New York State Urban Dev. Corp., 67 N.Y.2d 400, 429-430 (1986).
B. Appellants’ Request For A Complete Injunction Or A Zipper- Only Remedy Should Be Rejected
Finally, Appellants request that, if the Court agrees with them as to any part
of the DOT Strips, it ought to enjoin the Project in its entirety. According to
Appellants, if any part of the DOT Strips is parkland, the entire Project should be
enjoined because NYU obtained approval for the Project “as an integrated whole,
and any partial project NYU might now pursue would differ materially from the
[Project] as the City approved it.” Appellants Br. 73. That is wrong.
In approving the Project, the City adopted a 300-page restrictive declaration
that sets forth everything NYU may do, may not do, and must do as a condition of
City approval. See generally SA.159-459. Nothing in that declaration or any other
approval document mandates the all-or-nothing condition Appellants hypothesize.
To the contrary, the declaration specifies that the Project might be built only in
part: “If the Subject Property is developed in whole or part in accordance with the
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Large-Scale Special Permit, Declarant covenants and agrees that the Subject
Property shall be developed in substantial compliance with [specified] plans …
approved as part of the Large-Scale Special Permit[.]” SA.183. The City’s
express contemplation of partial construction puts to lie Appellants’ claim that
“any partial project NYU might now pursue would differ materially from the
[Project] as the City approved it.” Appellants Br. 73.
If Appellants mean to argue that it was unlawful for the City to approve a
project allowing partial construction, that too is wrong. The “segmentation”
authorities Appellants cite avail them nothing. See Appellants Br. 75 n.21.
Segmentation occurs when environmental review is disaggregated into smaller
stages or activities, typically with the aim of minimizing the environmental
consequences of the total project. 6 N.Y.C.R.R. § 617.3(g)(1). Appellants are
correct that the law “disfavors” segmentation, Appellants Br. 75 n.21, but that did
not happen here. The FEIS assessed the environmental impacts of both its
component parts and as a whole. See SA.34-148 (FEIS, Chapter 20
“Construction”).
Appellants rely (at 75) on the First Department’s decision in London v. Art
Comm’n of New York, 190 A.D.2d 557 (1st Dep’t 1993), but that case is even
farther afield. There, the court, construing a provision of the Landmark
Commission law inapplicable here, held that the Commission needed to approve a
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plan to demolish a bandshell, and that approval of a materially “differ[ent]” plan to
do so seven years’ earlier did not satisfy that legal requirement. Id. at 558-559.
Nothing in that decision supports Appellants’ proposition that the City Council
may not approve a project under ULURP pursuant to which a developer may
construct less of the project than approved.
Appellants’ separate request to halt construction of the Zipper Building is
likewise misplaced. The trial court and the Appellate Division agreed that the Dog
Run on the South Mercer Strip—the only Strip affected by construction of the
Zipper Building—was not parkland. And the trial court, having concluded that
three parcels on the other Strips were parkland, saw no need to stop the Zipper
Building from being built. Appellants nonetheless insist that it must be enjoined
even if only parts of the other, unaffected Strips are deemed parkland. That defies
the blackletter remedial principle that an injunction “should not be broader than is
necessary to protect the plaintiff’s rights.” 67A N.Y. Jur. 2d Injunctions § 178, at
322-323 (2010). Here, there would be no basis to enjoin the use of the Dog Run
for construction of the Zipper Building if that parcel is not implied parkland. Cf.,
e.g., Levy v. Schreyer, 177 N.Y. 293, 295-296 (1904) (violation of covenant
barring construction of multi-family tenement was remedied by order prohibiting
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use as tenement; order requiring wholesale destruction of building was
overbroad).31
CONCLUSION
The Appellate Division’s decision should be affirmed. Should the Court
disagree with the Appellate Division and conclude that any of the Strips is
dedicated parkland, it should remand to the Appellate Division to determine the
proper remedy or adopt the trial court’s remedy.
31 The restrictive declaration requires the Project to proceed in phases, but the Zipper Building is Phase 1. See SA.242-251; A.7:2545-2548 ¶¶ 43-47 (Hsu-Chen Aff.). There would be no violation of the phasing requirements (or any other requirements of the restrictive declaration) were the Zipper Building the only building to be erected on the Superblocks.
Date Completed: May 5, 2015
SETH P. WAXMAN
(pro hac vice) KELLY P. DUNBAR
ALBINAS J. PRIZGINTAS
(pro hac vice) ADAM I. KLEIN
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Avenue, NW Washington, DC 20006 Telephone: (202) 663-6000 Facsimile: (202) 663-6363
ALAN LEVINE
CELIA GOLDWAG BARENHOLTZ
MICHAEL BLASIE
COOLEYLLP
The Grace Building 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275
Respectfully submitted.
ALAN E. CHOE FELD
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center 250 Greenwich Street New York, New York 10007 Telephone: (212) 230-8800 Facsimile: (212) 230-8888
PHILIP E. KARMEL
BRYAN CAVE LLP
1290 Avenue of the Americas New York, New York 10104 Telephone: (212) 541-2000 Facsimile: (212) 541-4630
Attorneys for Necessary Third-Party Appellant-Respondent