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1 New York County Clerk's Index No. 1038~~/12 court of ~i~ea~r~ of t~je ~ta~te of,~e~ ~or~ DESO~x GLICK, individually and in her representative capacity as Assemblymember for the 66th Assembly District, BARBARA WEtNSTE~ty, TUDITH 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, 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, 7EAN STANDISH, NOHO NEIGHBORHOOD ASSOCIATION, by and in the name of its Co-Chair JEAtvtvE 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 HAxvEY, 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, 1R., 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, (Additional Caption on the Reverse) MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO APPEAL Of Counsel: Randy M. Mastro Jim Walden Caitlin J. Halligan Indraneel Sur Gabriel K. Gillett Laura Corbin Sarah Vacchiano GlBSOrr, Durr~v & CxuTCxER LLP Attorneys for Petitioners- Respondents-Appellants 200 Park Avenue New York, New York rmastro@gibsondunn.com

2 VExoN~cA M. Wxi~, as Commissioner of the New York City Department of Parks and Recreation, THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, JANET SADtK-KxAN, as Commissioner of the New York City Department of Transportation, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, MA~Ew M. WA~uA, as Commissioner of the New York City Department of Housing Preservation and Development, 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 YorkCity 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, Ti-~ NEw Yo~c CIS Coulvc~,, and TI-~ CI`rY of NEw YORK, and Respondents-Appellants-Respondents, NEW YORK UNIVERSITY, As a Necessary Third-Party Appellant-Respondent.

3 CORPORATE DISCLOSURE STATEMENT Pursuant to 22 NYCRR , (b)(5}, petitioner NYU Faculty Against the Sexton Plan states that it is a nonprofit corporation, and that it has no corporate parents, subsidiaries or affiliates. Petitioner Greenwich Village Society for Historic Preservation states that it is a nonprofit corporation, and that it has no corporate parents, subsidiaries or affiliates. Petitioner Historic Districts Council states that it is a nonprofit corporation, and that it has no corporate parents, subsidiaries or affiliates. Petitioner Washington Square Village Tenants' Association states that it is a nonprofit corporation, and that it has no corporate parents, subsidiaries or affiliates. Petitioner East Village Community Coalition states that it is a nonprofit corporation, that it has no corporate parents or subsidiaries, and that it is affiliated with LES People's Mutual Housing Association. Petitioner Friends of Petrosino Square states that it is a neighborhood association, that it has no parent or subsidiary, and that it is affiliated with copetitioner, the Historic Districts Council. Petitioner LaGuardia Corner Gardens, Inc. states that it is a nonprofit corporation with no corporate parents, subsidiaries or affiliates.

4 Petitioner Lower Manhattan Neighbors' Organization states that it is a nonprofit corporation with no corporate parents, subsidiaries or affiliates. Petitioner SoHo Alliance states that it is a nonprofit corporation with no corporate parents, subsidiaries or affiliates. Petitioner Bowery Alliance of Neighbors states that it is a community organization with no corporate parents, subsidiaries or affiliates. Petitioner NoHo Neighborhood Association states that it is a community organization with no corporate parents, subsidiaries or affiliates. Petitioner Washington Place Block Association states that it is a community organization, that it has no corporate parents or subsidiaries, and that it is affiliated with Greenwich Village Block Associations (GVBA). ii

5 TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT... i QUESTIONPRESENTED... 1 INTRODUCTION... 1 PROCEDURAL HISTORY &TIMELINESS... 4 A. Background...4 B. The Supreme Court's Decision C. The Appellate Division's Decision D. Timeliness...13 JURISDICTION REASONS FOR GRANTING LEAVE TO APPEAL I. THE DECISION BELOW SQUARELY CONFLICTS WITH DECISIONS OF THIS COURT AND THE APPELLATE DIVISIONS BY EFFECTIVELY ABOLISHING IMPLIED DEDICATION OF LANDFOR PARK PURPOSES II. THE QUESTION PRESENTED IS RECURRENT AND OF STATEWIDEIMPORTANCE CONCLUSION iii

6 Pa e s Cases Allen v. Adami, 39 N.Y.2d 275 (1976) Angiolillo v. Town of Greenburgh, 290 A.D.2d 1 (2d Dep't 2001) Cook v. Harris, 61 N.Y. 448 (1875)... 15, 16, 19, 21, 23, 24, 26, 29 Friends of Van Co~tlandt Park v. City of New York, 95 N.Y.2d 623 (2001)... 1, 30 Hechter v. N.Y. Life Ins. Co., 46 N.Y.2d 34 (1978) Kenny v. Bd. of Trs. of Garden City, 289 A.D.2d 534 (2d Dep't 2001) Lazore v. Bd. of Trs. of Massena, 191 A.D.2d 764 (3d Dep't 1993) N.Y. State Pub. Emps. Fed'n v. Albany, 72 N.Y.2d 96 (1989) People v. Brooklyn &Queens Transit Corp., 273 N.Y. 394 (1937)... 17, 21, 29 People v. Loehfelm, 102 N.Y. 1 (1886)... 16, 17 Powell v. City of New York, 85 A.D.3d 429 (1st Dept 2011)... 13, 21, 27, 28 Powell v. City of New York, 2009 WL (Sup. Ct. N.Y. Cnty. Dec. 21, 2009) Rivey-view Partners v. City of Peekskill, 273 A.D.2d 455 (2d Dep't 2000)... 19

7 ~'A~3LE OF AUTHORITIES (continued) Pa e s Union Sq. Park Cmty. Coal., Inc. v. N. Y.C. Dept of Parks & Rec., 22 N.Y.3 d 648 (2014)... 2 Vill. of Croton-on-Hudson v. Cnty. of Westchester, 38 A.D.2d 979 (Zd Dep't), aff'd, 30 N.Y.2d 959 (1972)... 3, 13, 18, 19, 21 Williams v. Gallatin, 229 N.Y. 248 (1920)... 2, 18, 30 Statutes CPLR (b) CPLR 5602~a)~ 1)~i) CPLR N.Y.C. Admin. Code 1-112(13) Other Authorities 1981 N.Y. Op. Att'y Gen. (Inf.) No , 1981 WL N.Y. Op. Att'y Gen. (Inf.) No , 1984 WL N.Y. Op. Att'y Gen. (Inf.) No , 2011 WL A Eugene McQuillin, The Law of Municipal Corporations 33:33 (3d ed. 2014) A Eugene McQuillin, The Law of Municipal Corporations 33:46 (3d ed. 2014) CSI

8 QUESTION PRESENTED Whether, contrary to precedents of this Court and the Appellate Divisions, parcels of municipal land are excepted from implied dedication as parks under the Public Trust Doctrine where the municipality holds them out to the public as parks for decades, officially identifies, funds, and promotes them as parks, and allows the public to use them for recreational purposes for decades on the grounds that the municipality initially mapped the parcels for potential street use, purported in internal documents to have "temporarily" permitted its parks agency to maintain them as public parks, and never expressly remapped them as parks. INTRODUCTION The First Department's decision below disregarded well-established common law principles for determining when municipal land has been impliedly dedicated for parks usage. In recognition of the unique value that public parks hold for children, families, and communities, the Public Trust Doctrine accords parkland special protections. If a municipality leads the public, over time, to believe that a parcel of public land is parkland, that land becomes dedicated parkland, and can only be alienated and used for another purpose with "the direct and specific approval of the State Legislature, plainly conferred." Friends of Van Cor~tlandt Park v. City of New York, 95 N.Y.2d 623, 630 (2001); see, e.g., Union Sq. Park Cmty. Coal., Inc. v. N. Y. G Dept of Parks & Rec., 22 N.Y.3 d 648, 654

9 (2014); Williams v. Gallatin, 229 N.Y. 248, (1920). This protection applies with equal force whether the government has expressly dedicated the parcel as parkland (for example, by legislative enactment), or by implication (for example, by permitting the public's continuous use of the property as a park over many years). In this case, New York City officials took repeated actions, over several decades, that led the public to believe four parcels of land clustered in Greenwich Village had become dedicated parkland. The City initially designated these parcels for street use as part of Robert Moses's proposed Lower Manhattan Expressway ("Comex") project, but abandoned that plan in The parcels never became streets. Instead, the public used them at the City's invitation in the following decades to play, garden, walk dogs, and enjoy outdoor recreation in a crowded city neighborhood. In 2010, New York University ("NYU") nevertheless unveiled a sweeping, two-million square foot expansion project, the "Sexton Plan," in the heart of this historic Greenwich Village neighborhood. This massive construction project was predicated on the appropriation of the parks for NYU's use, and two years later, the City rammed through its approval over the unanimous objection of the local Community Board, the NYU faculty, leading historic preservation groups, and the district's state legislator. In blessing NYU's plan, the City never even

10 acknowledged the protected status of these parks or obtained the required State Legislative approval for alienating them before handing them over to NYU. In reversing the New York Supreme Court's holding that the City's conduct violated the Public Trust Doctrine, the First Department disregarded the precedents of this Court and set forth a rule that is flatly inconsistent with the precedent of the Second Department in Village of Croton-on-Hudson v. County of Westchester, 38 A.D.2d 979 (2d Dep't), aff'd, 30 N.Y.2d 959 (1972). In a cursory, five-paragraph opinion, the First Department gave dispositive weight to several factors that are of limited relevance in determining if a parcel has been impliedly dedicated for park purposes. The panel below indicated that initial designation of a parcel as a street or unsuccessful efforts to expressly dedicate a parcel as parkland precludes implied dedication. It also relied on interagency memorandums and other documents in limited circulation that purported to reserve the parcels as hypothetical streets, notwithstanding their open and officially promoted public use as parks. And it ignored the signal importance of long and continuous public use in assessing the protected status of a parcel. The result was to effectively eviscerate the implied dedication doctrine. This Court should grant Petitioners leave to appeal in order to reaffirm the continuing vitality of the Public Trust Doctrine, clarify its parameters when parkland dedication is by implication, and secure uniformity on this important 3

11 point of law among the Appellate Divisions. Moreover, in light of NYU's announced plans to proceed with construction on these parcels in the summer of 2015, the Court should set Petitioner's appeal from the whole of the First Department's order for expedited briefing and oral argument, so that it can be decided before June PROCEDURAL HISTORY &TIMELINESS A. Background 1. The Sexton Plan. NYU's Sexton Plan calls for construction of four new buildings, including athletic facilities, residential housing, and academic space, which "would pile almost two million square feet of additional building space... on top of two densely-developed blocks in Greenwich Village." R.13: I If undertaken, the project would require approximately 20 years of construction on two largely residential "Superblocks" located in Greenwich Village. R.2:510-14, 600, 696. Both Superblocks stretch west-east from LaGuardia Place to Mercer Street. The North Superblock spans West 3rd Street to Bleecker Street, and the South Superblock reaches from Bleecker to Houston Street. Under the Plan, NYLJ would build two new academic buildings the Mercer Building and the LaGuardia Building in the North Superblock. In the South Citations styled "R.A:B" or "A:B" are to the Record on Appeal filed with the Appellate Division, Volume A, Page B.

12 Superblock, NYU would replace its Coles Gymnasium with a giant "Zipper" complex along Mercer Street, which includes multiple "tower components" up to 275 feet tall, and replace an existing supermarket with another large building, the Bleecker Building, along Bleecker Street. R.1 1: ; 24: ; R.13: (maps). 2. The Four Parcels. The Sexton Plan required alienation of four public parcels of land in the two Superblocks (the"four Parks"): Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens, and Mercer-Houston Dog Run ("Dog Run"). The Four Parks had been designated as "streets" on the City map in 1956 to accommodate the construction of the planned Lower Manhattan Expressway. R.12:5657. The City abandoned those plans in 1969 without ever opening the parcels as streets, and the public has never used the parcels as streets. R.31: , a. Mercer Playground. Located on the east side of the North Superblock, Mercer Playground is a paved area where children roller skate, ride bikes, and play in water fountains. R.15:7171. The playground was designed and built by the Parks Department in the 1990s using hundreds of thousands of public dollars appropriated in the City's Capital budget. R.31: The park was officially dedicated to the public at a 1999 ceremony attended by local elected officials and presided over by Henry Stern, the City's long-time Parks Commissioner. At the

13 ceremony, the City told the public that the Parks Department had affirmatively accepted authority over the parcel. Id. Since 1999, the Parks Department has continued to support Mercer Playground's use as a public park. It maintains the playground, which features numerous Parks Department signs and insignia, and the Parks Department lists it as a "park" on its website a website to which NYU's promotional materials refer. R.1: The Sexton Plan proposed that Mercer Playground be turned over to NYU, which would receive 20-year construction, access, and utility easements to stage construction of the LaGuardia and Mercer Buildings. R.11:5226, 5261; 12:5672, 5742, During that time, the park would be completely unavailable for public use. After construction is complete, a slice of the playground would be transferred to the Parks Department to create a smaller tricycle garden shrouded in the shadows of the Mercer building, and the remainder would be permanently ceded to NYU for access purposes. R.6:2836. b. LaGuardia Park. Located on the northwest section of the North Superblock, LaGuardia Park has served as an open recreational and meeting place along the east side of LaGuardia Place since the mid-1980s. R.31:15037 ~ 4-5. The park features landscaped terrain, mature trees, and planted ivy, and a statue of Mayor Fiorello La Guardia that was dedicated at an official ceremony in the mid- 1990s attended by four mayors and other elected officials. R.15: The C~

14 Parks Department website promotes the park, and notes that the statue's dedication plaque "is part of Parks' Historical Signs Project and can be found posted within the park." R.30: The community group that maintains the area as a public park, Friends of LaGuardia Place, recently collaborated with the City to develop Adrienne's Garden, a new toddler playground located within the park. R.12:5841. Over the years, LaGuardia Park has received hundreds of thousands of dollars in capital funds from the City. R.31: Under the Sexton Plan, the public would be excluded from LaGuardia Park and Adrienne's Garden, and NYU would receive 20-year construction, access, and utility easements to stage construction of the LaGuardia and Mercer Buildings. R.11:5226, 5261; 12:5672, 5742, The plan provides for transfer of the land to the Parks Department and construction of a new play garden after construction is complete. Id.; R.2:583. c. LaGuardia Corner Gardens. LaGuardia Corner Gardens sits at the northwest corner of the South Superblock, at LaGuardia Place and Bleecker Street. Since the early 1980s, the Gardens has been open to the public from April to November and hosted numerous community and school events. R.17: For decades, the Parks Department has promoted the Gardens as a "park" on its website, placed signs at the Gardens bearing Parks Department insignia, and 7

15 directed the public to call the Parks Department with any concerns. R.30: E:~:~ Under the Plan, LaGuardia Corner Gardens would be covered with a shed that would substantially limit sunlight. R.2:605-06; 1 1:5234. After construction, the Bleecker Building would block necessary sunlight, making it impossible to grow some of the plants that are currently in the garden. R.2:557. d. Mercer-Houston Dog Run. The Dog Run is a fenced-in area located on the east side of the South Superblock, on a site that has been continuously used for recreational purposes for more than 40 years. R.6:2836; 31: , (iv). The land was initially used as a public ball field, and when NYU received permission from the City in 1979 to construct Coles Gymnasium in the South Superblock, it agreed to build a dog run on that site. R.6:2836; R.25: Since 1981, the Dog Run has been operated by the Mercer-Houston Dog Run Association and has been open to any member of the public who pays a nominal $60 annual membership fee ($30 for senior citizens). R.1:67; 11:5285. Under the Plan, the site of the Dog Run will be occupied by NYU, while a new dog run will The public previously used the entirety of the South Superblock for recreation. Consistent with community preferences, NYU agreed in 1979 to build and maintain a children's playground and a reflecting garden north of the Dog Run. Those areas have been permanently closed since 2004, however, because NYU failed to maintain them. R.6:2521, 2836; 31:

16 be opened at a smaller, less desirable location to the west of its current location. R.2:832; 13: The City's Approval. NYLT submitted applications laying out the Sexton Plan to the Department of City Planning ("DCP") under the City's Uniform Land Use Review Procedure ("LTLURP") in September and December R.12: The first application sought changes to the City map, and the second sought zoning map amendments that would change largely residential districts into commercial districts, as well as other amendments that would permit NYU to seek a special permit for large-scale development on City-owned land and to treat area public parks as "wide streets." R.12:5656. NYU also sought a special permit to waive applicable height, setback, and distance regulations. Id. NYU filed a corresponding draft environmental impact statement ("Draft EIS") under the State Environmental Quality Review Act ("SEQRA") in December The Community Board rejected the Sexton Plan in March 2012, R.12: , but the City went forward with the plan after NYU agreed to certain changes. R.12: , Without making a full disclosure of these changes to the public, R.12: ; 13: , the City Planning Commission ("CPC") nonetheless held a public hearing in Apri12012, and approved NYU's application in June R.12: :6224; R.21: The corresponding Final EIS, which DCP approved in May 2012, did not acknowledge any of the four parks as D

17 protected parkland, or analyze the impact of alienating the four parks. R.31: The City Council approved NYU's ULURP applications for the Sexton Plan, with modest further modifications, in July R.24: , B. The Supreme Court's Decision Petitioners filed an Article 78 petition in September 2012 seeking declaratory and injunctive relief to annul approval of the Sexton Plan and enjoin NYU and the City from going forward with the project. R.1: , The Petition asserted multiple causes of action, including the claim that the City authorized NYU to use the parcels for construction staging and other purposes. R.l : ; 1: ; 1:210 ~ The City Respondents, joined by NYU as a necessary third party, moved to dismiss. The New York Supreme Court (Mills, J.) granted the motion in part and denied it in part in January The trial court held that the City had impliedly dedicated Mercer Playground, LaGuardia Park, and LaGuardia Corner Gardens as parkland, and alienation of these parcels could be accomplished only through express authorization by the State Legislature. R.l :76. Accordingly, the trial court enjoined NYU from "beginning any construction in connection with the project 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." R.1:

18 The trial court stressed that under the Public Trust Doctrine, "long-continued use of the land for park purposes may be sufficient to establish dedication by implication, despite the fact that the property is still mapped for long-abandoned street use." R.1:73. The trial court explained that "[t10 rule otherwise would effectively eliminate the distinction between express and implied dedication of parkland...[t)he City's interpretation of the law governing the public trust doctrine would effectively superimpose the requirement of express dedication on the doctrine of implied dedication." R.l : After examining the evidence concerning each individual parcel, the trial court concluded that the "long continuous [use] of the four parcels as parks" had "trigger[ed) the notion of a `public trust."' R.1: The trial court noted that Mercer Playground, LaGuardia Park, and LaGuardia Corner Gardens each bear indicia of "the City's intent to treat the property as parkland where formal mapping as a park is absent," including Parks Department management, signage, and website depiction. R.l :74. Accordingly, the trial court held that these three parcels had been impliedly dedicated as parkland. R.1: The trial court found that there were insufficient indicia showing that the Mercer-Houston Dog Run had been impliedly dedicated as parkland. R.l :68. The trial court dismissed Petitioners' other claims. R.1:91-94, The City and NY U appealed from 11

19 the trial court's ruling as to the three parcels it held had been impliedly dedicated as common law parklands, and Petitioners cross-appealed. C. The Appellate Division's Decision On October 14, 2014, a four justice panel of the First Department (Sweeny, J.P., Renwick, Andrias, Clark, J.J.) reversed, and directed that the Article 78 petition be dismissed on the law. The panel recognized that there had been no "formal dedication of the land for public use" as a park, and that "the City has allowed for the longterm continuous use of parts of the parcels for parklike purposes." Vacchiano Decl. Ex. A (Slip. Op ). Nevertheless, the panel concluded that "the City's acts and declarations" had not "manifested a present, fixed, and unequivocal intent to dedicate any of the parcels at issue as public parkland." Id. at 74. In a cursory opinion, the panel rejected Petitioners' argument (Petr , Petr. Reply 4-16) that all four parcels had been impliedly dedicated through long continuous public use a factor that the Second Department and this Court found dispositive in Village of Croton-on-Hudson v. County of Westchester, 38 A.D.2d 979 (Zd Dep't), aff'd, 30 N.Y.2d 959 (1972). Without ever citing Croton-on- Hudson, the panel instead gave dispositive weight to three other factors that it said the First Department had considered in a recent implied dedication case, Powell v. City of New York, 85 A.D.3d 429, 431 (1st Dept 2011). First, the panel noted that 12

20 "the parcels have been mapped as streets since they were acquired by the City, and the City has refused various requests to have the streets de-mapped and rededicated as parkland." Vacchiano Decl. Ex. A (Slip Op. 74). Second, the panel asserted that "any management of the parcels by the Department of Parks and Recreation was understood to be temporary and provisional, pursuant to revocable permits or licenses." Id. Third, the panel asserted without further explanation that the public's recreational use "was not exclusive, as some of the parcels (like LaGuardia Park) have also been used as pedestrian thoroughfares." Id.3 D. Timeliness NY-U served Notice of Entry of the Appellate Division's dispositive order on October 14, Vacchiano Decl. Ex. C. The 30-day period for seeking leave to appeal expires on November 13, CPLR 5513(b). JURISDICTION This Court has jurisdiction over this motion and the proposed appeal from the whole of the First Department's order because Petitioners filed the Article 78 petition in the Supreme Court, and the First Department's order finally determined In setting aside the trial court's injunction, the panel also rejected Petitioners' argument on cross-appeal that, because NYU presented and obtained approval for the Sexton Plan as an integrated whole, any project NYU now pursues would differ materially from the Sexton Plan as the City approved it, warranting an injunction against any construction absent a new review and approval process. Petr ; Petr. Reply

21 the petition and is not appealable as a matter of right. CPLR 5602(a)(1)(i); CPLR REASONS FOR GRANTING LEAVE TO APPEAL I. THE DECISION BELOW SQUARELY CONFLICTS WITH DECISIONS OF THIS COURT AND THE APPELLATE DIVISIONS BY EFFECTIVELY ABOLISHING IMPLIED DEDICATION OF LAND FOR PARK PURPOSES. The decision below is wholly inconsistent with the legal standard for implied dedication of public land developed by the Second and Third Departments and approved by this Court in Croton-on-Hudson. Flowing inexorably from land use principles this Court first set forth more than a century ago, that standard looks to long continuous public use of a parcel for recreational purposes as the key factor in determining whether property has been implicitly dedicated as parkland. This Court should grant leave to appeal to clarify the parameters of this important common.law doctrine and preserve the legislature's prerogative under the Public Trust Doctrine to decide whether parkland can be alienated and used for other purposes. 1. The implied dedication doctrine has, at least since the late 1800s, emphasized long continuous public use as the critical factor in determining parkland status. 14

22 a. This Court addressed the concept of implied dedication at length in Cook v. Harris, 61 N.Y. 448 (1875). Relying on the doctrine of estoppel, this Court held that a parcel of land held by a private landowner had been dedicated and accepted for use as a public highway. The Court explained the principle of implied dedication as follows: The dedication and acceptance may be proved by the acts of the parties, and the circumstances of the case. The owner's acts and declarations should be such as to manifest an intention to abandon or devote his property to the specific public use. In the case of a highway, the public must accept the highway, and before such acceptance the dedication may be revoked. Such acceptance may be proved by long public use, or by the positive acts of the public authorities in recognizing and adopting the highway. No particular length of time is essential to make a dedication valid and irrevocable. Id. at 454 (emphasis added). The Court highlighted the "circumstances" which established that the parcel had been "dedicated to the use of the public for a highway" most importantly, that "the public used" the disputed parcel from 1853 to 1867 "as a public highway, so far as appears, without any objection from anyone." Id. at The Court also noted that the dedication was implicit, not express: i.e., "without any writing." Id. at 453. The Court reiterated the significance of "long public use" in People v. Loehfelm, 102 N.Y. 1 (1886). In explaining why the parcel at issue there had been dedicated and accepted by the public for use as a highway, the Court observed that "the public used and traveled" the parcel "to its full width except where prevented by obstructions." Id. at 4. This conclusion, the Court explained, rested on the 15

23 "rule...that the acceptance may be proved by long public use or by the acts and conduct of the public authorities recognizing and adopting the highway." Id. at And again in People v. Brooklyn &Queens Transit Corp., 273 N.Y. 394, (1937), the Court emphasized "long public use" without "objection" as the foremost consideration in determining whether a parcel had been dedicated to public use. While the parcel at issue in Brooklyn &Queens Transit had been designated as a street on various maps, the Court concluded that it could not constitute a public highway by dedication because the City had never accepted its use as a street. As in Loehfelm, the Court noted that "[c]rowds of people" used the parcel for other purposes "for many years...without objection on the part of the city." Id. at 402. "What the city has failed to do is even more significant than what it has done affirmatively," the Court concluded. Id. Through the years, this Court has unswervingly instructed that protected parkland is more than mere "open space," and the laudable non-park purpose of a construction project does not outrank the public's need for park access under the Public Trust Doctrine. See Williams, 229 N.Y. at 253 ("[N]o objects...which have no connection with park purposes, should be permitted to encroach upon [parkland] without legislative authority plainly conferred."). 16

24 b. The benchmark case stressing "long public use" in the implied dedication of property as parkland is the Second Department's decision in Croton-on-Hudson, which this Court affirmed without opinion. Vill. of Croton-on-Hudson v. Cnty. of Westchester, 38 A.D.2d 979 (2d Dep't), aff'd, 30 N.Y.2d 959 (1972). Relying on Cook and Loehfelm, Croton-on-Hudson held that the Public Trust Doctrine prohibited alienation of the parcel at issue there "without specific legislative authorization," because "the long-continued use of the land for park purposes constitutes a dedication and acceptance by implication." 38 A.D.2d at 980. As often happens, some of the circumstances concerning the disputed parcel pointed in the opposite direction while the parcel had been "acquired for public park purposes by a special borrowing," there were no relevant deed restrictions and no formal dedication. The Second Department, however, treated the public's "longcontinued use" as diapositive. See id. When the municipality urged this Court to reverse the Second Department, the parties fully briefed the merits of the implieddedication question (among others). This Court's affirmance of the Second Department's judgment evidences agreement with the legal standard applied by the Second Department and the result it reached. c. Until now, the lower courts have never questioned the vitality of Crotonon-Hudson. In Riverview Partners v. City of Peekskill, 273 A.D.2d 455 (2000), the Second Department followed Croton-on-Hudson, holding that a disputed parcel 17

25 had become a public park through implied dedication, relying on, among other things, evidence that the parcel "was used by the public as a park since its purchase." Id. at The Second Department cited Cook, 61 N.Y. at 454, and Croton-on-Hudson, 38 A.D.2d at 980, as controlling precedents. See also Kenny v. Bd. of Trs. of Garden City, 289 A.D.2d 534, (2d Dep't 2001) (focusing on undisputed fact "that the property was utilized for recreational purposes" in holding that parcel "was impressed with a public trust") Even when finding that a parcel had not been impliedly dedicated, the Appellate Divisions have properly recognized the central and paramount importance of continuous, long-time public use to this inquiry. Thus, although the Third Department ruled that a contested parcel was not a park in Lazore v. Board of Trustees of Massena, 191 A.D.2d 764 (3d Dep't 1993), as a matter of the unique facts presented there, it acknowledged the core teaching of Croton-on-Hudson: "Certainly, a parcel may become a park either through express provision, such as restrictions in a deed or legislative enactment, or by implied acts, such as a continued use of the parcel as a park or by certain acts of respondent" municipalities. Id. at 765; see also Angiolillo v. Town of Greenburgh, 290 A.D.2d 1, (2d Dep't 2001) (denying parkland status to parcel used "as an open-space buffer" between neighbors and parkway, but observing that "whether a parcel has become a park by implication is a question of fact which must be determined by 18

26 such evidence as the owner's acts and declarations and the circumstances surrounding the use of the land"). Until the decision below, the First Department also recognized the significance of "long public use." In Powell, while ruling that two disputed parcels had not been impliedly dedicated as public parks, because one was predominantly used one as a thoroughfare, not a park, and the other was predominantly used as a private sports complex restricted to private use for a substantial fee, the First Department nonetheless acknowledged that a parcel "may constitute a park... by implication, such as by a continuous use of the parcel as a public park." 85 A.D.3d at 431. Thus, it has long been the law of this State that a municipality may "manifest an intention to...devote [its] property to...specific public use" as a park, either expressly or by implication. Cook, 61 N.Y. at 454. And it is also well-established that in a case concerning implied dedication, even when other circumstances point in an opposing direction, "the long-continued use of [a parcel ofj land for park purposes constitutes a dedication and acceptance by implication." Croton-on- Hudson, 38 A.D.2d at 980. When the municipality intends for a parcel to be used for some other purpose, the municipality must clearly "manifest" such an intention, 19

27 rather than allowing its continued use "in [such a] manner without objection." Brooklyn &Queens Transit, 273 N.Y. at The panel below identified no plausible grounds for its unprecedented disregard of "long public use" in ascertaining the status of the parcels. That factor is central to the implied dedication inquiry, as the Second Department held and this Court affirmed in Croton-on-Hudson, and it has never since been called into question by any court. Not only did the First Department fail to credit the evidence of long continuous public use of the parcels here as parks, it did not even cite Croton-on-Hudson anywhere in its terse opinion. As the trial court recognized (with respect to three of the four disputed parcels), the evidence more than satisfied The Attorney General has likewise adhered to Croton-on-Hudson in advising municipalities on their obligations under the Public Trust Doctrine. See N.Y. Op. Att'y Gen. (Inf.) No ("Land can become dedicated for park purposes through its improvement and use as a park."); see also N.Y. Op. Att'y Gen. (Inf.) No ("Land may also be dedicated to public park purposes by... long use as a public park.") (citing N.Y. Op. Att'y Gen. (Inf.) No ). Thus, as the State's Office of Parks, Recreation and Historic Preservation (OPRIIl') has succinctly advised: "Dedication through implication can also occur when the common and accepted use of the land is as a park." R.30: Accord 1 la Eugene McQuillin, The Law of Municipal Corporations 33:33 (3d ed. 2014) ("[W]here the public has used the land for a public purpose for a long time with the knowledge of the owner and without objection from the owner, an intent to dedicate will generally be presumed."); id. at 33:46 ("In a common law dedication an acceptance of an offer to dedicate is generally shown by one of four methods: acceptance of a deed or other record; acts in pais, such as grading, at public expense; long use; or express statutory or other official action.") (emphasis added). 20

28 the standard for implied dedication. The First Department's contrary conclusion rests on a novel legal test for implied dedication that is fundamentally incompatible with Croton-on-Hudson and Riverview. a. First, the First Department relied heavily on the formal mapping of the parcels as streets. Vacchiano Decl. Ex. A (Slip. Op. 74). But this Court's precedents offer absolutely no support for the notion that parcels mapped as streets are categorically exempt from implied dedication as parklands. By its nature, such a "mapping" exemption would attach dispositive effect to a single municipal act one that, in this case, occurred five decades ago to the complete exclusion of the long continuous public use of the parcels that was permitted and promoted by City officials. Although a parcel's formal mapping is dispositive in an express dedication inquiry, this case involves implied dedication, where the proper focus is on "long public use." Cook, 61 N.Y. at 454. The decision below likewise flouted Croton-on-Hudson and this Court's earlier precedents in according significant weight to the City's failure to act on requests to have the streets de-mapped and re-dedicated as parkland. Vacchiano Decl. Ex. A (Slip. Op. 74). A failure to act on a re-dedication request is merely a failure to achieve express dedication of parkland, nothing more or less. If failure to obtain express dedication were a barrier to implied dedication, then the express dedication inquiry would slam the door on implied dedication in every case. As 21

29 the trial court recognized in rejecting that crabbed view, such an "interpretation of the law governing the public trust doctrine would effectively superimpose the requirement of express dedication on the doctrine of implied dedication." R.1:72. The First Department's offhand reference also failed to consider "the acts of the parties, and the circumstances of the case," as required by Cook, 61 N.Y. at 454. In that regard, the only reason that the Parks Department did not seek the demapping after informing a neighborhood group that it was prepared to do so in the 1990s was not the intention of the City, but rather NYU's objection. Petr The decision below converts NYU's success in forestalling express dedication into a windfall victory in defeating implied dedication, notwithstanding the long public use of the parcels, and the City's repeated and continuous assent to that public enjoyment of the properties as parks over many decades. Second, the First Department's observation that "some of the parcels (like LaGuardia Park) have also been used as pedestrian thoroughfares," Vacchiano In asserting that the City "has refused" de-mapping and re-dedication requests, the First Department ignored the fact that the City itself understood that the parcels would continue to function as parks. Regardless of whether the parcels were labeled as within the jurisdiction of one agency or the other, both the City's Parks and Transportation Departments supported the effort frustrated by NYU to have the parcels expressly dedicated as parks. Rather than precipitate open conflict with NYU, the City decided that the "fight [was] not worth having" and that it "made no practical difference whether the City Map formally changed," because "these sites had already become dedicated parkland." Petr (quoting R.31: ). 22

30 Decl. Ex. A (Slip. Op. 74), conflicts with precedents instructing that the common law including the Public Trust Doctrine--cannot be overridden absent clear and specific legislative intent. See Hechter v. N. Y. Life Ins. Co., 46 N.Y.2d 34, 39 (1978). The decision below effectively held that if a parcel falls in any way no matter how limited in scope or duration within the broad definition of "street," as set forth in the City Administrative Code, N.Y.C. Admin. Code 1-112(13), that definition controls the implied dedication inquiry, regardless of the parcel's long continuous public use for park purposes. But this Court has repeatedly held that the common law is not to be displaced absent "clear and specific legislative intent," and nothing in the definition of "street" provides the necessary clear authorization to displace the common law protection for parks. See N.Y. State Pub. Emps. Fed'n v. Albany, 72 N.Y.2d 96, , (1989)(invalidating city ordinance that conflicted with common law); Allen v. Adami, 39 N.Y.2d 275, (1976)(narrowly construing zoning regulations that conflicted with common law). The common lave, unlike the decision below, respects common sense: A parcel used by the public as a park is not a "street" simply because people can and do walk across the park. Third, the First Department's focus on whether the Parks Department (and other city bureaucrats) "understood" its "management of the parcels... to be temporary and provisional," Vacchiano Decl. Ex. A (Slip Op. 74), ignores the 23

31 intent that is manifest to the public, which is the touchstone of the implied dedication inquiry. While referring to dated interagency memorandums and other documents never made public, the opinion almost entirely ignores the City's decision to permit the public's continuous use of this public land as parks over many decades. That factor is central to an implied dedication inquiry as a matter of precedent and common sense. The key question is whether the municipality has "manifest[edj an intention to...devote [its] property to...specific public use," Cook, 61 N.Y. at 454 (emphasis added), and the relevant audience is members of the public not an inner circle of bureaucrats communicating behind closed doors many years ago, unbeknownst to the public. The First Department's invented standard focuses on the bureaucratic paper trail, contrary to the common law's fundamental concern with practical realities.6 b. While the First Department purported to rely on its earlier decision in Powell, that decision acknowledged the accepted principles of implied dedication. In referring to "permits or licenses," the First Department mistakenly assumed that a batch ofnow-expired temporary licenses between the City and the LaGuardia Community Gardens covering haphazard stretches of the past three decades governed all four parcels (not the Gardens alone). But New York common law has never supported collapsing four distinct parcels into a single tract for purposes of assessing implied dedication in such a crude, generalized fashion. Moreover, even if the expired temporary licenses as to the LaGuardia Community Gardens were somehow relevant to the other parcels, all of the parcels were impliedly dedicated as parkland through continuous public use before execution of the first license. Petr & n.8. 24

32 In Powell, the First Department found that a parcel called Asphalt Green had not been impliedly dedicated as parkland because it was only open to the public 30 percent of the time, it was otherwise restricted to private members who paid a "substantial membership fee[]" for access the remaining 70 percent of the time, and the Parks Department's assignment of the land expressly prohibited it from becoming parkland. 85 A.D.3d at 431. The Powell court also held that a parcel called Bobby Wagner Walk had not been impliedly dedicated as parkland because it was either, as the trial court there dubbed it, a "pedestrian walkway," id., 2009 WL (Sup. Ct. N.Y. Cnty. Dec. 21, 2009), or a "pedestrian thoroughfare," id., 85 A.D.3d at 430. The factors militating against implied dedication in Powell are therefore completely absent from this case. In short, the First Department simply misclassified as "thoroughfares" these four sites a children's playground; a community park, toddler play space, and home of the famous Fiorello LaGuardia statue; a lush community garden; and an enclosed dog run which only further demonstrates the conflict between the decision below and the settled legal standard for assessing implied dedication claims. 25

33 II. THE QUESTION PRESENTED IS RECURRENT AND OF STATEWIDE IMPORTANCE. The question presented here regarding the scope and vitality of the implied dedication doctrine is recurrent, as demonstrated by its centrality in Croton-on- Hudson, and Riverview, and by the First Department's recent invocation of the doctrine in Powell. The substantial practical implications of the First Department's decision for members of the public who use such parcels for recreation further make the need for this Court's review even more imperative given the continued onrush of development and the increasing scarcity of parks. As this Court's precedents underscore, proximity and access to public parks is an essential consideration when New Yorkers decide where to live and raise their families. Where there has been "long public use" of a parcel for recreation, Cook, 61 N.Y. at 454, and that use has endured "for many years...without objection on the part of the city," Brooklyn &Queens Transit, 273 N.Y. at 402, and City officials have even promoted that use (as they did here), New Yorkers justifiably expect that the parcel will stand as a park, whether available as a playground for children, as a garden, or for other park purposes. The First Department's decision below not only flouted the settled legal standard for implied dedication, but also the undeniable need that all New Yorkers especially those 26

34 living within the densely populated metropolitan areas within the boundaries of the First Department have for access to parkland. This Court's intervention is also necessary because the decision below interferes with the State Legislature's prerogative to decide when parkland can be used for non-park purposes. The First Department disregarded the principle underlying the Public Trust Doctrine: When an intrusion on parks is proposed, the State government not a municipality likely more susceptible to parochial interests should weigh the competing arguments as to the common good. This Court has "time and again reaffirmed [that] principle." See, e.g., Van Cortlandt, 95 N.Y.2d at 630, 632. The First Department's decision cries out for the attention of this Court because it provides a convenient roadmap for a municipality to shield its misappropriation of parkland from state legislative oversight. Whenever express dedication efforts have been defeated, a municipality would need merely to point to an obsolete map or to prepare interagency memorandums and documents to deny park status to the disputed parcel even when the officials' outward conduct over decades manifests plain assent to usage of the parcel as a public park. The decision below thus raises the prospect that municipalities, in their zeal to build "court houses and school houses," will do so at the expense of public parks. See Williams, 229 N.Y. at 253 ("no objects, however worthy, such as court houses and

35 school houses, which have no connection with park purposes," are "permitted to encroach upon" a park, absent State Legislative authorization). The First Department's extraordinary undermining of the State Legislature's mandated role under the Public Trust Doctrine warrants this Court's review. ~'3

36 CONCLUSION For the reasons described above, the motion for leave to appeal from the whole of the First Department's order of October 14, 2014 should be granted. Dated: New York, New York November 12, 2014 Respectfully submitted, By: Of Counsel. Randy M. Mastro Jim Walden Caitlin J. Halligan Indraneel Sur Gabriel K. Gillett Laura Corbin Sarah Vacchiano GIBBON, DUNN & CRUTCHER LLP Attorneys for Petitioners- Respondents-Appellants 200 Park Avenue New York, New York

37 PRINTING SPECIFICATIONS STATEMENT The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, the corporate disclosure statement, and this Statement, is 6,506.