BRIEF FOR THE NEW YORK CITY RESPONDENTS

COURT OF APPEALS STATE OF NEW YORK To be argued by MICHAEL J. PASTOR (15 Minutes) DEBORAH GLICK, et al., Petitioners-Respondents-Appellants, For Judgment Pursuant to CPLR Article 78, -against- ROSE HARVEY, et al., VERONICA M. WHITE, et al., Respondents, Respondents-Appellants-Respondents, -and- NEW YORK UNIVERSITY, As a Necessary Third Party, Third-Party Appellant-Respondent. BRIEF FOR THE NEW YORK CITY RESPONDENTS RICHARD DEARING CHRIS REO ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for the City Respondents 100 Church Street ELIZABETH HARRIS New York, New York 10007 MICHAEL J. PASTOR (212) 356-0838 or -2500 Of Counsel mpastor@law.nyc.gov May 6, 2015 Reproduced on Recycled Paper

TABLE OF CONTENTS TABLE OF AUTHORITIES... iv PRELIMINARY STATEMENT... 1 QUESTIONS PRESENTED... 5 STATEMENT OF THE CASE... 6 A. The Street Strips... 6 1. By Resolution of the Board of Estimate, the City Mapped the Strips as Streets and Later Acquired Them for Street Purposes... 6 2. The Plan is Upheld in Court... 8 3. The Board of Estimate Refuses to Act on a Request to Transfer the Mercer Street Strips to the Parks Department... 9 4. City Officials Expressly Decline Requests Made in the 1990 s to De-Map the Streets and Permanently Dedicate Them as Parkland... 10 5. The City Consistently Declines Requests to Dedicate the South LaGuardia Strip as Parkland... 13 6. In 2007, the Parks Department and DOT Enter into a Memorandum of Understanding Concerning the Greenstreets Program... 15 B. The Approval of NYU s Core Project and its Relation to the Street Strips... 16 1. The Core Project was Approved after a Public Review Process During Which the City Planning Commission Reduced the Overall Size of the Project... 17 -i-

2. The City Council Reviews the Plan, Requires Further Reductions in Building Size, and Approves it by a Vote of 44-1... 20 3. The Approval s Relationship to the Street Strips, Two of Which Will be Dedicated as Parkland... 21 (i.) North LaGuardia and North Mercer Strips... 21 (ii.) South LaGuardia Strip... 23 (iii.) South Mercer Strip... 24 C. The Parks Department s Temporary Management or Beautification of Parcels Owned by Other City Agencies such as DOT... 25 D. Procedural History of this Article 78 Proceeding... 29 1. The Supreme Court Finds Three of the Street Strips to be Parkland by Implied Dedication... 29 2. The First Department Reverses and Finds that None of the Parcels Has Become Parkland by Implication... 31 ARGUMENT... 32 POINT I... 32 THE RECORD DOES NOT SUPPORT PETITIONERS CLAIM THAT THE CITY INTENDED TO DEDICATE THE STREET STRIPS PERMANENTLY AS PARKLAND -ii-

A. Implied Dedication Occurs Only Where a Local Government s Acts and Declarations Demonstrate an Unequivocal Intention to Permanently Dedicate Its Property as Parkland... 33 B. The Record Establishes Conclusively that the City had No Intent to Dedicate These Street Strips as Parkland... 37 C. Petitioners Near Exclusive Reliance on the Public s Use of the Property for Park-like Purposes Ignores the Centrality of the City s Intent and Disregards the Context in Which That Use Occurred... 46 D. Petitioners Improperly Conflate the Question Whether the Local Government Intended to Dedicate the Property with the Separate Question Whether the Public Has Accepted an Intended Dedication... 52 1. Cases Discussing Alleged Acceptance of a Dedication Have No Bearing Here... 52 2. Petitioners Reliance on Estoppel Principles Further Shows How Far Afield They Must Strain... 55 E. Finding Dedication on These Facts Would Greatly Impair Local Governments Flexibility to Allow Temporary Use of Non-Park Properties for Public Enjoyment... 57 -iii-

POINT II... 63 THE PETITION FAILS FOR THE INDEPENDENT REASON THAT PARCELS MAPPED AND ACQUIRED AS STREETS CANNOT BE REDEDICATED FOR OTHER PURPOSES BY IMPLICATION POINT III... 70 PETITIONERS OVERBROAD REMEDIAL REQUEST UNDERSCORES THAT THEIR CONCEPTION OF MUNICIPAL OPEN SPACES IS FORMALISTIC AND RESULT-DRIVEN CONCLUSION... 78 -iv-

TABLE OF AUTHORITIES CASES Ackerman v. Steisel, 104 A.D.2d 940 (2d Dep't 1981), aff d, 66 N.Y.2d 833 (1985)... 35 Angiolillo v. Town of Greenburgh, 290 A.D.2d 1 (2d Dep't 2001)... 39 Baker v. Village of Elmsford, 70 A.D.3d 181 (2d Dep t 2009)... 64 Bond v. Turner, 78 A.D.3d 1490 (4th Dep't 2010)... 36 C/S 12th Ave. LLC v. City of New York, 32 A.D.3d 1 (1st Dep't 2006)... 75 Chatham Green, Inc. v. Bloomberg, 1 Misc.3d 434 (N.Y. Sup. Ct. N.Y. County 2003)... 74 City of Buffalo v. Del. Lackawanna & W.R.R. Co., 190 N.Y. 84 (1907)... 68 City of Fort Payne v. Fort Payne Athletic Assoc., 567 So. 2d 1260 (Ala. 1990)... 36 Cook v. Harris, 61 N.Y. 448 (1875)... 33, 34, 45 Douglaston & Little Neck Coalition v. Sexton, 145 A.D.2d 480 (2d Dep't 1988)... 38 E & J Holding Corp. v. Noto, 126 A.D.2d 641 (2d Dep't 1987)... 65 -v-

Flack v. Village of Green Island, 122 N.Y. 107 (1890)... 54 Gerwitz v. City of Long Beach, 69 Misc.2d 763 (N.Y. Sup. Ct., Nassau County 1972), aff d, 45 A.D.2d 841 (2d Dep t 1974), appeal denied, 45 A.D.2d 841 (1974)... 37 H.A. Maddox v. Maxwell, 369 S.W.2d 343 (Tex. 1963)... 36 Holdane v. Trustees of the Village of Cold Spring, 21 N.Y. 474 (1860)... 34, 38, 47 Hotel Emps. & Rest. Emps. Union, Local 100 of N.Y. v. City of N.Y. Dep t of Parks & Recreation, 311 F.3d 534, (2d Cir. 2002)... 59 Hunter v. Trustees of Sandy Hill, 6 Hill. 407 (N.Y. 1844)... 34 Jackson v. Bd. of Comm. of the Cty. of Monroe, 916 N.E.2d 696 (Ct. App. Ind. 2009)... 72 Jacobs v. City of New York, 54 Misc.2d 46 (N.Y. Sup. Ct. N.Y. Cty. 1966), aff d,28 A.D.2d 668 (1st Dep't 1967)... 8, 67, 69 Klug v. Jeffers, 88 A.D. 246 (3d Dep t 1905)... 36 Lazore v. Bd. of Trustees of Vill. of Massena, 191 A.D.2d 764 (3d Dep't 1993)... 38 Lewis v. Portland, 25 Ore. 133 (1895)... 36 London v. Art. Comm n of N.Y., 190 A.D.2d 557 (1st Dep t 1993)... 76 -vi-

New York City Council v. City of N.Y., 4 A.D.3d 85 (1st Dep't 2004)... 66 Matter of City of N.Y., 239 N.Y. 119 (1924)... 35 Matter of Green Cty. Dep t of Soc. Svs. v. Ward, 8 N.Y.3d 1007 (2007)... 56 Northglenn v. Thornton, 193 Colo. 536 (1977)... 36 Pearlman v. Anderson, 62 Misc. 2d 24 (N.Y. Sup. Ct. Nassau Co. 1970), aff'd, 35 A.D.2d 544 (2d Dep't 1970)... 59 People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394 (1937)... 54, 59 People v. Loehfelm, 102 N.Y. 1 (1895)... 53 Pless v. Town of Royalton, 81 N.Y2d 1047 (1993)... 56 Powell v. City of New York, 85 A.D.3d 429 (1st Dep t 2011)... 36, 38, 59 Riverview Partners L.P. v. City of Peekskill, 273 A.D.2d 455 (2d Dep't 2000)... 36, 39, 45, 47 Stahl Soap Corporation v. City of New York, 5 N.Y.2d 203 (1959)... 65 Ventres v. Town of Farmington, 192 Conn. 663 (1984)... 36 -vii-

Village of Clayton v, Colorado & S. Ry. Co., 30 N.M. 280 (1924)... 36 Village of Croton-on-Hudson v. County of Westchester, 28 A.D.2d 979 (2d Dep't), aff'd, 30 N.Y.2d 959 (1972)... 38, 39, 45 STATUTES Administrative Code 5-430... 65 Administrative Code 5-432... 65 Administrative Code 5-433... 65 Administrative Code 1-112(13)... 49 General City Law 20... 64 General City Law 29... 65 N.Y. City Charter 197-c... 66 MISCELLANEOUS 6 N.Y.C.R.R. 617.9(b)(5)(v)... 73, 74 -viii-

PRELIMINARY STATEMENT Contrary to petitioners suggestions, the future of New York s public trust doctrine is not at all at risk in this case. That doctrine has long held that where a local government has dedicated its property as parkland which is most commonly done through formal, express steps, but sometimes done through other governmental acts that unmistakably imply an intent to dedicate the local government may not thereafter alienate the property or convert it to non-park purposes without the State Legislature s specific approval. Around 1700 dedicated city parks in New York City, and numerous others throughout the State, are indisputably subject to the superintendence of the State Legislature under the doctrine. The public trust doctrine is thus robust in this State, and no one here claims it should be otherwise. This case is really about petitioners attempt to turn the public trust doctrine into something it has never been, was never meant to be, and should not become a device to compel a permanent dedication of municipal property as parkland, and thus to restrict municipal use of the property, where the City did not intend any such dedication. Petitioners adopt this strategy to try to 1

nullify the approval by the New York City Council, after a public review process, of land-use actions tied to New York University s proposal to construct new buildings and open spaces on its property near its Manhattan campus. The Appellate Division correctly dismissed the petition upon finding that four City-owned street parcels at issue were never impliedly dedicated by the City as parkland (Appendix [ A. ] 4-5). Petitioners contentions to the contrary are unsupportable as a matter of both precedent and policy. This Court has made clear that a high bar must be cleared before a municipal landowner will be deemed to have impliedly dedicated its land as parkland and thereby accepted permanent restrictions on use of its property. Precedent for over a century has held that an implied dedication will be found only where unequivocal acts and declarations of the local government demonstrate a positive, unmistakable intent to permanently dedicate the property. The Appellate Division correctly held that no such unequivocal intent to dedicate has been shown here. The street strips at issue were not acquired for park purposes, but rather for use as public streets, and the parcels have never been mapped as parkland. Local officials refused multiple requests to dedicate the strips as parkland; the strips have 2

always remained in the permanent portfolio of the City s Department of Transportation; and public use of parts of the strips for certain parklike purposes has occurred pursuant to permits and licenses that were expressly framed as temporary and revocable. Petitioners ask the Court to ignore all of this evidence, and to hold that the public s use of parts of the property for park-like purposes, by itself, resulted in a permanent dedication that the City never intended. But while evidence of public use may sometimes be relevant, along with other evidence, in confirming that a local government intended to dedicate property as parkland, it cannot effect an implied dedication where such intent is lacking. Because the public s use of the property here occurred pursuant to arrangements that were expressly made temporary and revocable, it does not show that the City intended any permanent dedication of the property as parkland. Petitioners arguments cannot be squared with the necessary focus on the intent of the municipality, rather than the perceptions of the public. Even more clearly, petitioners arguments fail to acknowledge the established requirement that an unequivocal intent to dedicate 3

must be shown before a local government s use of its property will be restricted something that cannot not be shown on this record. Petitioners contentions not only contravene precedent, but, if upheld, would be deeply harmful to the public interest. Local governments commonly open underutilized parcels for public use and enjoyment on a provisional basis, while intending to keep those municipal properties available for other uses as needed in the future. Indeed, in New York City alone, over 2000 municipal properties that are not dedicated parkland are currently managed or beautified on a temporary basis by the City s Parks Department. If those steps meant that the properties may be deemed to have been permanently dedicated as parkland, New York City agencies, and local governments throughout the State, could be compelled to cease such arrangements, and numerous green spaces and community gardens may be discontinued or never created. Fortunately, petitioners proposed rule has no basis in, and is indeed contrary to, the implied dedication doctrine established by this Court and the State s lower courts for well over 150 years. The First 4

Department correctly rejected petitioner s unfounded theory, and this Court should affirm. QUESTIONS PRESENTED 1. Did the Appellate Division correctly hold that the City never manifested an unequivocal intent to permanently dedicate the street strips as parkland and that, to the contrary, City officials demonstrated through acts and declarations a consistent intent that the parcels retain their status as streets? 2. Can the Appellate Division s order also be affirmed for the additional reason that mapped street parcels such as those at issue here, which like parks are impressed with a trust for the benefit of the public, cannot be closed and de-mapped by implication, but rather may only be closed and de-mapped by express legislative act? 3. If petitioners claims had any merit, would their proposed remedy of invalidating the entire NYU project, including aspects that do not involve the street strips, be overbroad and unjustified, where (a) the City completed a full and appropriate environmental review, and (b) the project could be adjusted is necessary to account for any ruling that the street strips are dedicated parkland? 5

A. The Street Strips STATEMENT OF THE CASE Petitioners claim that four strips of land that are part of or will be affected by the approved NYU Core Project ( Core Project ) have been dedicated as parkland. They are: (1) the playground on the western sidewalk of Mercer Street between Bleecker Street and West 3rd Street ( North Mercer Strip ); (2) a portion of Mercer Street between Bleecker Street and West Houston Street that contains a privately-maintained dog run; ( South Mercer Strip ); (3) unspecified portions of the eastern sidewalk of LaGuardia Place between Bleecker Street and West 3rd Street ( North LaGuardia Strip ); and (4) a portion of the eastern sidewalk of LaGuardia Place between West Houston Street and Bleecker Street ( South LaGuardia Place Strip ). The history of the legal status of these street strips is as follows. 1. By Resolution of the Board of Estimate, the City Mapped the Strips as Streets and Later Acquired Them for Street Purposes In 1954, the City undertook the Washington Square Southeast Urban Renewal Plan (A.2503, Supplemental Appendix [ SA. ] 460, 467). The plan entailed redeveloping the area to the southeast of Washington 6

Square Park by converting nine blocks (bounded by West 4th Street, Mercer Street, West Houston Street, and West Broadway (now LaGuardia Place)) into three superblocks (id.). The plan called for acquiring the entire area by eminent domain, de-mapping two interior streets, and disposing or developing the superblocks for educational, residential and commercial uses. The plan was approved by the City Planning Commission on December 9, 1953 and, shortly thereafter, by the New York City Board of Estimate, the body that had certain legislative powers before it was abolished pursuant to a revision of the City Charter in 1990 (id.). The plan authorized the widening of the remaining streets to meet anticipated future traffic needs and to accommodate a plan to widen 5th Avenue south of Washington Square Park (A.2504; SA.467). This widening of mapped street on the City Map with respect to the westerly side of Mercer Street and the easterly side of LaGuardia Place included the four street strips at issue in this appeal (id.). In 1956, the City Planning Commission adopted an alteration to the City Map detailing the mapping actions that had been approved, including the widening of Mercer Street and what is now LaGuardia 7

Place (A.2504). The Board of Estimate then deemed the changes to be in the public interest and approved the modifications to the City Map (A.2504, A.2350, A.3129). As part of the approval process, the City retained the right to acquire the strips from the property owner. In late 1967 and early 1968, the street strips were granted to the City. The grants, which took the form of deeds of cessation, referenced the prior public approvals and granted the premises to the City of New York in trust for street purposes (A.2345, A.2350, A.3129). 2. The Plan is Upheld in Court Noted Greenwich Village activist Jane Jacobs and other individuals sued the City seeking to enjoin implementation of the plan. Jacobs v. City of New York, 54 Misc.2d 46 (N.Y. Sup. Ct. N.Y. Cty. 1966), aff d, 28 A.D.2d 668 (1st Dep t 1967). They claimed that the City was not authorized to widen the street strips. They further argued that the City should convert the street that is now LaGuardia Place, between Washington Square Park and West Houston, into a greenway or a sort of Champs Elysees of Lower Manhattan. Jacobs, 54 Misc.2d at 48. 8

The Supreme Court, New York County, dismissed the claim, finding the plan eminently proper, practical and legal. The Court found that the action taken by the Board of Estimate in modifying the City map was legislative in nature. Id. at 50. The Court noted that even though the plaintiffs were sincere in their belief that their own choice for the parcel is a proper one, [they] may not legally requisition the courts to interfere in favor of their own proposals over equally proper public use plans of the Planning Commissioner and the Board of Estimate. Id. The Supreme Court s holding, including its finding that these land-use actions of the Board of Estimate were legislative in nature, was affirmed by the First Department on the opinion of the Supreme Court. Jacobs, 28 A.D.2d at 668. 3. The Board of Estimate Refuses to Act on a Request to Transfer the Mercer Street Strips to the Parks Department Around the same time as the Jacobs litigation in 1967, Manhattan Borough President Percy E. Sutton requested that the Board of Estimate approve the assignment of three Mercer Street Strips from West Houston Street to West 4th Street from the City Department of Highways to the Parks Department for use as landscaped park and 9

sidewalk area[s] (A.2506; SA.475-477). The Board of Estimate took no action on the request. Over a decade later, in a report concerning an amendment to the original plan adopted in 1954, the City Planning Commission acknowledged that the Board never acted on the request in 1967 to assign jurisdiction to the Parks Department (A.2507; SA.478). 4. City Officials Expressly Decline Requests Made in the 1990s to De-Map the Streets and Permanently Dedicate Them as Parkland In 1995, Community Board No. 2 informed the Commissioners at DOT and the Parks Department that it had adopted a resolution seeking to have the street strips transferred to the Parks Department from DOT (SA.484). The resolution requested that jurisdiction of the street strips be transferred to the Parks Department because it would have the effect of permanently guaranteeing these strips as parkland (id.). Petitioners Glick and the head of the Washington Square Village Tenants Association, along with other elected officials, were copied on this request to have the plots dedicated as parkland (id.). Less than a month later, and before any action was taken on the community board s request, then-dot Commissioner Elliot Sander granted a revocable permit to the Parks Department for its temporary 10

use and occupation of the Mercer Street Strip (A.2497). The letter ended: It is expressly understood that in the event that DOT requires the occupied property in order to perform capital construction work, [the Parks Department] shall vacate it and return it to DOT so that such work can take place (id.). It instructed then-parks Commissioner Henry Stern to sign if he agreed and accepted ; Stern signed the line indicating his agreement and acceptance of the terms in the letter (id.). Notably, the Community Board s request a few weeks earlier to have the Mercer Strip permanently dedicated as parkland had been addressed personally to Mr. Stern, in addition to Mr. Sander, the two signatories of this temporary and revocable permit granted by DOT to Parks (SA.484). The following month, the Deputy Commissioner for Operations at the Parks Department addressed the community board s request to convert the strips from streets to parks. He explained that permanently transferring the parcels and de-mapping the streets would have to go through the City s Uniform Land Use Review Procedure ( ULURP ), a land use process that requires concurrence by the City Planning Commission and City Council (A.2415-A.2416). He 11

stated that the agency was willing to work with DOT to obtain the necessary approval, but it first wanted the consent of neighboring owners (id.). The Parks Department also sent a letter to petitioner Washington Square Village Tenants Association, explaining that demapping would require public hearings and approval pursuant to ULURP (A.2416). Thereafter, adjacent landowner NYU told the Commissioners at DOT and Parks Department that it supported the current use of the strips, that it was assisting in maintenance and construction at the site, and that it supported granting the Parks Department a permit to manage the parcels; however, NYU argued that de-mapping of the streets was not necessary to create the playground (A.2417-A.2418). The General Counsel of the Parks Department responded to NYU by letter on August 9, 1996, in which he noted that the Parks Department had obtained the temporary permit for the planned playground on the North Mercer Strip, but that the agency did not intend to seek the de-mapping of the street (A.2419). Meanwhile, earlier the same year, petitioner Friends of LaGuardia Place wrote a letter to the Parks Department noting that 12

the group had raised funds to install a statue of Fiorello LaGuardia and wanted the North LaGuardia Strip transferred from DOT to the Parks Department (SA.483). In their petition here, petitioners concede that the North LaGuardia Strip and the other street strips remained and remain mapped streets under DOT jurisdiction (A.115-A.116). 5. The City Consistently Declines Requests to Dedicate the South LaGuardia Strip as Parkland Efforts by groups and individuals to have the strips mapped as parkland did not cease, but were no more effective than those undertaken in the 1990s. In 2006, members of the public and petitioner LaGuardia Corner Gardens, which has used the South LaGuardia Strip pursuant to written license and lease agreements with the City since its inception and is not generally open to the public, requested that Mayor Michael R. Bloomberg support a transfer of the garden to the Parks Department. Then-DOT Commissioner Iris Weinshall responded to the petitions (A.3239): DOT has no plans at the present time to change the current usage of this portion of the street or permanently transfer the garden to the [Parks Department]. The permanent transfer of this property would require that it first be mapped as parkland under 13

[ULURP].... In this specific case, the viability of such an application is questionable because such a change to the City map would eliminate the legal frontage on the east side of LaGuardia Place. A similar letter was sent by Assistant DOT Commissioner Jay Jaber in response to other such inquiries (A.3240-A.3246). Recipients of the letter included the Chair of LaGuardia Corner Gardens, a petitioner in this litigation (A.3242). In 2007, DOT responded to another request by stating that DOT has no plans at the present time to change the current usage of this portion of the street or to transfer it to the [Parks Department] (A.3249). A member of the public wrote Mayor Bloomberg again in 2008 noting concerns about the gardens because the parcel had no protective classification (i.e., as parkland) (SA.489). DOT responded to this request by repeating that the area is mapped street but that the City has no plans at present time to change the current usage of the property (A.3250). As recently as August 2010, several petitioners and others wrote the City asking that it remap the land from roadbed to park in order for them to be permanently protected parkland (A.2493-A.2494). The 14

letter acknowledged that the strips were mapped as roadbed. The City did not act on this request. 6. In 2007, the Parks Department and DOT Enter into a Memorandum of Understanding Concerning the Greenstreets Program In 2007, DOT and the Parks entered into a 10-year memorandumof-understanding working to create greenstreets on certain street and roadbed spaces (A.2421), under the City s Greenstreets program for beautifying street spaces that had begun more than a decade earlier. The purpose of the Greenstreets program is to take paved traffic islands or other DOT spaces and fill them with shade trees, flowering trees, shrubs, and groundcover. While the Parks Department administers the plots under the program, the MOU expressly states: [The Parks Department] and DOT acknowledge that the Sites are temporary and will always remain as DOT jurisdictional properties, available for DOT purposes and uses as needed. [The Parks Department] and DOT acknowledge that the Sites are not intended to be formal or implied dedicated parklands (id.). The South LaGuardia Strip, inclusive of LaGuardia Corner Gardens, was listed as included in the program in exhibit to the 2007 15

MOU (A.2444). In 2009, the North LaGuardia Strip was added to the Greenstreets program (A.2492). 1 B. The Approval of NYU s Core Project and its Relation to the Street Strips The NYU Core Project concerns the two NYU-owned superblocks in Greenwich Village, bounded by West 3rd Street to the north, Mercer Street to the east, West Houston Street to the south, and LaGuardia Place to the west (A.2526-A.2530). Bleecker Street divides the superblocks into a northern block ( North Block ) and southern block ( South Block ) (id.). The land-use actions related to the NYU Core Project, as approved by the City Planning Commission and the New York City Council, will allow for the construction of four new buildings and below grade space on the superblocks (A.2530). The buildings will house academic space, student housing, faculty housing, an athletic center, and a small amount of retail (id.). 1 Petitioners claim there was a factual dispute as to whether these two strips were included in the program (Pet. Br., at 15-18, n. 2, 4). However, the affidavits they cite say nothing more than that a member of the public may not have believed that the parcels were part of the Greenstreet program. But the documentary evidence demonstrates that the City included these two DOT parcels in the program, subject to the provisions of the MOU. 16

1. The Core Project Was Approved after a Public Review Process During Which the City Planning Commission Reduced the Overall Size of the Project After NYU submitted its application for the land-use actions necessary to carry out the Core Project, it was reviewed by Community Board No. 2, which recommended disapproval of the application (A2549). The board held over 23 public meetings on the application, including a public hearing at the beginning and end of its review (id.). In recommending disapproval, the board criticized the inclusion of a hotel in the plan and the heights of the new buildings (A.1048, A.2549). The Manhattan Borough President also reviewed the application and recommended conditional approval of the plan, with recommendations to reduce the size of the new buildings NYU planned to build and the implementation of protocols to reduce the construction impact on local residents (A.1076, A.2550). The CPC held its public hearing on April 25, 2012. The hearing lasted ten hours, and 115 people spoke in support of, and opposition to, the project (A.2555). These included community members, representatives from NYU, the Community Board No. 2, the Borough President s office, as well as NYU faculty and students (id.). During the 17

hearing, members of the CPC asked numerous questions, and also requested that NYU submit further information for consideration by CPC (A.2556). On May 4, 2012, NYU submitted several memoranda responding to CPC s information requests (id.). On May 7, 2012, CPC held a public post-hearing follow-up at their next scheduled Review Session, at which many of the concerns of Community Board 2 and the Borough President were discussed, including eliminating the temporary gym on the North Block and removing the hotel from the Zipper Building (id.). CPC also requested further information from NYU on the need for new faculty housing within the Core Project (id.). NYU filed responses to these requests on May 11, 2012, May 15, 2012 and May 18, 2012 (A.2557). CPC held a second public post-hearing follow-up on May 21, 2012, during which it again discussed many of the issues raised by the Community Board, the Manhattan Borough President, and other individuals (A.2558). Among other recommendations, City Planning staff recommended reducing the height of certain of the buildings (A.2558-A.2559). 18

The land-use actions necessary to carry out the Core Project were approved, as modified, by the CPC at a public hearing on June 6, 2012. CPC Chair Amanda Burden explained at the hearing that NYU had a strong case for its academic programming needs including classrooms and study space, dormitory space, faculty housing and faculty offices (A.2559-A.2564). However, CPC s approval eliminated several nonacademic parts of the plan: the hotel, the temporary gym, and the proposed rezoning of six blocks north of the superblocks (id.). CPC also reduced the height of two of the proposed buildings and created an oversight committee for the open space areas (id.). NYU filed amended plans reflecting the CPC modifications (id.). NYU also then executed the Restrictive Declaration, a covenant that runs with the land and that requires, among other things, that NYU institute detailed environmental mitigation and other protective measures during the construction and operation phases (SA.159). The Restrictive Declaration sets forth detailed timeframes, pursuant to which construction shall occur, including implementation of a progressive, building-by-building phased plan designed to limit construction disturbance (SA.235-SA.253). The City can 19

administratively enforcement non-compliance with the declaration or otherwise seek to compel compliance with it by injunctive relief (SA.263-SA.269). 2. The City Council Reviews the Plan, Requires Further Reductions in Building Size, and Approves it by a Vote of 44-1 The City Council Land Use Committee s Subcommittee on Zoning and Franchises, upon public notice, held a hearing on the land-use actions necessary to carry out the Core Project, as modified by the CPC, on June 29, 2012 (A2565). The hearing lasted nine hours, with 78 speakers speaking in opposition to the proposal, and 45 speaking in favor of it (id.). Councilmember Margaret Chin, whose district includes the Core Project, advocated for additional modifications to address community concerns (id.). NYU s President John Sexton addressed these concerns by letter dated July 16, 2012 (SA.486). The Subcommittee, in turn, recommended several reductions and modifications to the size and uses of the proposed buildings (A.2568) to the Land Use Committee. The maximum density of the project, as ultimately modified and approved by the Land Use Committee, was reduced by approximately 20% during the ULURP process (A.2532). 20

On June 25, 2012, by a vote of 44 in the affirmative and 1 in the negative, the City Council approved four separate resolutions approving the CPC decisions with respect to the plan, with the modifications proposed by the Land Use Committee (A.2570). The resolutions were filed with the Mayor, who had five days under the City Charter to object; he made no objection (id.). 3. The Approval s Relationship to the Street Strips, Two of Which Will Ultimately Become Dedicated as Parkland as Part of the Project (i.) North LaGuardia and North Mercer Strips The North LaGuardia Strip currently consists of paved walkways, landscaped with trees that allow pedestrians access to nearby retail stores (A.3311-A.3312). It also contains a privately funded statue of Fiorello LaGuardia (id.). At the northern part of the strip, petitioner Friends of LaGuardia Place recently coordinated with NYU and City officials to create Adrienne s Garden, which was not completed until 2013, and is the only area in the North LaGuardia Strip with seating areas or areas for recreation. The North Mercer Strip contains a playground, which was opened in 1999 (A.3222), after being constructed pursuant to the revocable 21

permit first issued by DOT to the Parks Department in 1995 for Parks temporary use and occupation of the area in question. The area, which is almost entirely paved, is designed for use by teens on bicycles and skateboards, as well as pedestrians passing through (A.3314). As part of the City Council s approval of NYU s application in 2012, as modified, two of the four strips, the North LaGuardia and North Mercer Strips, were approved for de-mapping as streets; and the strips were approved for later dedication as parkland, subject to easements approved for disposition to NYU allowing for construction of the adjacent buildings and access and utilities (A.2510). When the construction of the North Block buildings are completed, NYU will be obligated to improve and maintain these adjacent parklands, pursuant to the terms of the Restrictive Declaration (id.). These new parks will provide many uses. The parkland mapped along LaGuardia Place will include the LaGuardia Play Garden, which will provide active recreation for various age groups, and the LaGuardia Entry Plaza, which will provide seating and a wide path providing the public access to the NYU-owned publicly accessible open space in the center of the block (id.). The Mercer Street side will include the Tricycle 22

Garden, which will provide small-scale active and passive activities for younger children, and the Mercer Street Entry Plaza, which, like the LaGuardia Entry Plaza, will provide seating and a wide path to encourage passage into and through the center of the block (id.). (ii) South LaGuardia Strip Paved walkways currently run north-south along each side of the South LaGuardia Strip (A.3312). An enclosed planting area called the Time Landscape sits at the south end of the strip (id.). At the north end of the strip is LaGuardia Corner Gardens, a gated and locked community garden with limited public access that is part of the City s GreenThumb program (A.3313). This community garden was the only portion of the South LaGuardia Strip that was before the Supreme Court and the Appellate Division on the public trust issue. As with the North Mercer Strip and the North LaGuardia Strip, the South LaGuardia Strip is mapped street, including the area comprising the LaGuardia Corner Gardens. The garden is within DOT s jurisdiction, and the City first issued licenses or lease agreements at its inception in 1981 (A.3251, et seq.). These agreements variously specify 23

that the permission to use the plot is temporary, revocable and terminable (e.g., A.2421, A.3256, A.3257, A.3268). 2 The South LaGuardia Strip is not part of the Core Project (A.2511). The Final Environmental Impact Statement included discussion of the strip because it is adjacent to elements being built as part of the Core Project and would be affected during construction as well as by shadows that will result from a building being constructed as part of the project (A.307-A.311, A.533). (iii) South Mercer Strip The South Mercer Strip has never been subject to any Parks Department management or approval of any kind. It has a dog-run that is gated, locked, and run by a private association that charges a yearly membership fee and limits access to members (A.2054, A.3312, A.3320). The rest of the strip is paved walkway for pedestrians, including an area where students can enter NYU s Coles Gymnasium. 2 Although there are some gaps in the record with respect to licenses to the garden, petitioners are incorrect in saying (Pet. Br., at 18, n.3) that there were no licenses after 2009. The 2009 license, which was terminable at will by DOT, ran from January 7, 2009 through January 6, 2011 (A.2477). The licensee who signed the license, Ms. Janice Pargh, had been informed by DOT just two years prior that the plot was mapped street and the City had no plans to transfer the garden to the jurisdiction of the Parks Department (A.3249). 24

The Core Project, as approved, will create a new dog run and a toddler playground (A.2544). The South Mercer Strip will be the site of the Zipper Building, which will house academic spaces, a supermarket, dormitories, and faculty housing (A.2542). The size of the building was reduced during the approval process, including a reduction of the height of the building facing Bleecker Street almost in half, from 168 to 85 feet (id.). The project approvals will also result in an expanded north-south pedestrian walkway (A.2544). Overall, the approval requires the creation of around four acres of open space and parkland, some of which will be on the street strips and some of which will be on NYU s campus, as reconfigured (A.694-A.695, A.2520). C. The Parks Department s Temporary Management or Beautification of Parcels Owned by Other City Agencies such as DOT. The Parks Department s temporary management and oversight of the Mercer Playground, while the area remains in DOT s property portfolio, is not unusual, but rather illustrates the wide diversity of municipal public spaces that exist in New York City. All told, the Parks Department maintains, oversees, and enhances over 4,000 properties 25

for the enjoyment of the public (A.2501). Around 1,700 of those properties are dedicated as parkland (id.). The remainder more than 2,000 properties remain in the jurisdiction of other City agencies but are temporarily managed by the Parks Department (A.2502). The remarkable density of New York City means both that the temporary use of open municipal spaces for public enjoyment and recreation is extremely valuable, and that it is imperative that the City retain the ability to use those open spaces for other purposes in the future, as necessary. These temporary arrangements allow the Parks Department to provide recreational and open space for the benefit of New Yorkers, unless and until the particular site transitions back to its primary municipal use or is adapted for another use (id.). For example, the Parks Department manages properties that are held by the City s Department of Housing Preservation and Development ( HPD ) as the future site of housing developments (id.). Agencies permit the Parks Department to manage their unused properties subject to the understanding that they will be returned to that agency when they are needed by such agency for another municipal 26

use (A.2501-A.2502). Adrian Benepe, the Commissioner of the Parks Department from 2002 through 2013, averred that no agency would permit [the Parks Department] to temporarily utilize property within its jurisdiction if that temporary use compromised its future plans or rights over the parcel (A.3219). These arrangements are thus subject to agreements (either formal or informal), which specify that management and oversight of the parcel by the Parks Department is temporary and not to be construed as a formal dedication of the property as permanent parkland (A.2502, A.3219). 3 One example of non-parkland sites that receive management and oversight from the Parks Department is the GreenThumb Program (A2503), of which the LaGuardia Place Garden is a part. There are approximately 600 community gardens in the program that receive assistance from the Parks Department, many of which are on properties held by other agencies such as the Department of Education, DOT, HPD, the Fire Department, and the New York City Housing Authority 3 City respondents submitted below the affidavit of Margaret Forgione, the Manhattan Borough Commissioner for DOT since 2002 and an individual who held key positions with DOT since 1994. She affirmed DOT s view that the parcels here are mapped street that can only be de-mapped through ULURP. In addition, she noted that any capital expenditures made in relation to the parcel was consistent with their status as streets and did not alter their status as streets (A.3231-A.3236). 27

(id.). For these sites, the agency with jurisdiction over the property generally enters into a license agreement with the garden (id.). GreenThumb staff and the Parks Department then serve as a resource and provide guidance, oversight, and supplies to the garden group (id.). The Parks Department also manages numerous mapped City streets as part of the Greenstreets program (A.2502). The program promotes barren street triangles and medians within DOT s jurisdiction into gardens (id.). Through this partnership between DOT and the Parks Department, unused street spaces are turned into green spaces that beautify neighborhoods, improve air quality, and calm traffic (id.). Many of the properties in the jurisdiction of the agencies that the Parks Department manages have been identified as parks and have signage similar to that found on dedicated parkland (A.3212). The Parks Department does these things to notify the public that they may enter and make use of the amenities in the space that the Parks Department is managing in lieu of the agency that controls the parcel (id.). The General Counsel of the Parks Department summed up the City s view of these arrangements in an affirmation: These temporary 28

arrangements would not be possible if such interim uses were viewed as dedicated parkland, since the other agencies would be unwilling to lose the ability to make future use of the sites for their own purposes. Moreover, if such interim uses were viewed as creating parkland, the other 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 (A.2502). D. Procedural History of this Article 78 Proceeding 1. The Supreme Court Finds Three of the Street Strips to be Parkland by Implied Dedication The petitioners here, neighborhood associations, a group of NYU faculty, and certain elected officials,, brought an Article 78 proceeding in Supreme Court, New York County, to block the NYU Core Project, asserting that the four municipal street strips in question were dedicated parkland that could not be used for non-park purposes without the specific approval of the State Legislature. Conceding that there had been no express dedication or demapping of the street strips, the Supreme Court (Mills, J.) nevertheless held that portions of the street strips had been dedicated, by 29

implication, as parkland (A.50-A.51). Finding that the law on what qualifies as implied dedication is less than crystal clear (A45), the Court concluded that the street strips had long been used as parkland and that the City s posting of Parks Department signage or listing of the sites on its website indicated an intent to dedicate the lands as parks (A48-49). In so doing, the Court cited a Second Department decision for the proposition that acceptance as a public park triggers the application of the public trust doctrine (A48). It did, however, find that the street strip with a dog run was not impliedly dedicated in light of the fact that the Parks Department had no involvement with the parcel, which is privately operated, and did not list the parcel as a park on its website (A.42-A.43). Without discussing whether de-mapping requires official action by the City Council under ULURP, the Court found that use of the street parcels during construction of the Core Project requires approval of the State Legislature (A.51). 30

2. The First Department Reverses and Holds that None of the Parcels Had Become Parkland by Implied Dedication The First Department expressed the settled standard for implied dedication cases, noting that to prevail, petitioners needed to establish a fixed and unequivocal intent on the part of the City (A.4-5). Such intent must be gleaned from the acts and declarations of the owner (i.e., the City), and circumstances surrounding the use of the land (id.). The Court also noted that petitioners carry the burden of establishing implied dedication. Based upon its review of the full record from below, the Court held that the street strips at issue had not been dedicated as parkland, because petitioners failed to meet their burden of showing that the City s acts and declarations manifested a present, fixed, and unequivocal intent to dedicate any of the parcels at issue as public parkland (A5). The court noted that any use of some of the parcels for park-like purposes was not exclusive, and further observed that some of the parcels had been used as pedestrian thoroughfares (id.). The Court also pointed out that any management of the parcels by the Department of Parks and Recreation was understood to 31

temporary and provisional, pursuant to revocable permits or licenses (id.). In addition, the parcels have been mapped as streets since they were acquired by the City, and the City refused various requests to have the streets de-mapped and re-dedicated as parkland (id.). Both the Supreme Court and the Appellate Division rejected all of petitioners environmental review and land use claims. ARGUMENT POINT I THE RECORD DOES NOT SUPPORT PETITIONERS CLAIM THAT THE CITY INTENDED TO DEDICATE THE STREET STRIPS PERMANENTLY AS PARKLAND Under precedent of this State s courts dating back to the 19th Century, the question of whether a landowner irrevocably dedicated a property to public use has always hinged on a showing of unequivocal intent of the owner. Perhaps conceding implicitly that this legal standard is fatal to their claims, petitioners propose a novel and unprecedented approach that casts intent aside. No case law supports that position, and adopting it would adversely affects the City, other municipalities around the State, and the residents of New York. The 32

Appellate Division below, applying settled legal principles, correctly rejected petitioners claims of implied dedication. A. Implied Dedication Occurs Only Where a Local Government s Acts and Declarations Demonstrate an Unequivocal Intention To Permanently Dedicate Its Property as Parkland. Local governments usually do not need the State Legislature s permission before making judgments about how to use their property in the best interests of their residents. The public trust doctrine is a limited exception to this principle, holding that when a local government has dedicated land for use as parkland, it may not later alienate the land or use it for non-park purposes without the approval of the State Legislature. There are two methods by which a local government may dedicate its property as parkland and thereby accept permanent restrictions on its use of the property, under the State Legislature s superintendence. The first method is express dedication, such as by formal resolution of the locality's governing body dedicating the property. The second method is implied dedication, where a court might consider finding dedication even though no formal steps necessary to effect an express dedication have occurred. Here, all parties agree that the street strips 33

were never expressly dedicated as parkland, so implied dedication is the only question. The test in implied dedication cases contains two distinct components. First, challengers filing suit must establish that the owner unequivocally intended to permanently dedicate the plot for a particular public use. Second, that dedication will be deemed perfected, and thus become irrevocable, if the public has accepted the owner s dedication. See Cook v. Harris, 61 N.Y. 448, 453 (1871). Petitioners implied dedication claim fails on the first part of the test, because the City never displayed any intent, let alone an unequivocal intent, to permanently dedicate the street strips as parkland. For well over a century, the Court has set a high bar for establishing an implied dedication. Because a finding of implied dedication will result in a permanent restriction on a property owner s use of its own property, implied dedication will not be found where evidence as to the owner s intent to permanently dedicate the property is less than crystal clear. This Court set out the rule over 150 years ago, when it stated that to find an intent to dedicate by implication, the owner s acts and declarations should be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to 34

permanently abandon the property for a public use. Holdane v. Trustees of the Village of Cold Spring, 21 N.Y. 474, 477 (1860) (finding no dedication when the acts of the owner were equivocal and indecisive ). The Court reiterated in Cook that a showing of unequivocal intent is required, 61 N.Y. at 454, tracing it there to an even earlier decision which stated that acts of an owner must be unequivocal in their character to establish an intent to dedicate, Hunter v. Trustees of Sandy Hill, 6 Hill. 407, 414 (N.Y. 1844). A half-century after Cook was decided, this Court reaffirmed the point in slightly different but equally strong terms, stating that the acts and declarations of an owner must be unmistakable in their purpose, and decisive in their character, showing an intent to dedicate the land, absolutely and irrevocably to public use. Matter of City of N.Y., 239 N.Y. 119, 128 (1924). More recently, this Court affirmed on the opinion below a decision of the Second Department that again cited the unequivocal intent standard when analyzing an implied dedication claim. Ackerman v. Stiesel, 104 A.D.2d 940 (2d Dep t 1985), aff d, 66 N.Y.2d 833 (1985). Given this unbroken line of cases, petitioners claim 35

(Br. At 44 n.12) that this Court had never adopted the unequivocal intent standard is remarkable. The unequivocal intent standard has also been universally adopted by the courts of the Appellate Division. See Powell, 85 A.D.3d 429, 431 (1st Dep t 2011) (finding no unequivocal intent to dedicate), lv. denied, 71 N.Y.3d 715 (2011); Bond v. Turner, 78 A.D.3d 1490, 1492 (4th Dep t 2010) (grantor evinces the requisite unequivocal intent to dedicate ); Riverview Partners L.P. v. City of Peekskill, 273 A.D.2d 455 (2d Dep t 2000); Klug v. Jeffers, 88 A.D. 246 (3d Dep t 1905) (requiring acts unmistakable in their purpose to find an intent to dedicate) (internal citation omitted). 4 4 In addition, and contrary to petitioners implication, the unequivocal intent standard has been adopted and applied by the highest State courts all over the country. See, e.g., City of Fort Payne v. Fort Payne Athletic Assoc., 567 So. 2d 1260, 1263 (Ala. 1990) ( unequivocal intention required to show dedication); Lewis v. Portland, 25 Ore. 133, 156 (1895) (setting out the unequivocal intent standard and finding no such intent in light of acts and declarations which are entirely inconsistent with any intention to abandon or dedicate the property ); Ventres v. Town of Farmington, 192 Conn. 663, 667 (1984) ( essential elements to be proved in implied dedication case includes the owner s unequivocal intention ). See also Jackson v. Bd. of Comm. of the Cty. of Monroe, 916 N.E.2d 696, 704-705 (Ct. App. Ind. 2009) (finding no unequivocal intent to dedicate and that mere acquiescence to the public s use of plot as a road insufficient to demonstrate such intent); Village of Clayton v, Colorado & S. Ry. Co., 30 N.M. 280, 284-85 (1924) (reversing the trial court for its failure to correctly apply the rule that requires that intention be clear, convincing, and unequivocal ); Northglenn v. Thornton, 193 Colo. 536, 539 (1977); H.A. Maddox v. Maxwell, 369 S.W.2d 343, 348 (Tex. 1963) (finding no unequivocal intention when the landowner let the public use the plot for ingress and egress at the landowner s discretion). 36