In the Matter of Deborah Glick, et al., Appellants,v.Rose Harvey,, et al., Respondents, New York University, Third-Party Respondent.BriefN.Y.June 2, 2015TOBEARGUEDBY: CAITLIN J. HALLIGAN TIME REQUESTED: 20 MINUTES APL-2015-00053 (ourt of ~peal~ of tbe i>tate of Jletu ~ork DEBORAH GLICK, individually and in her representative capacity as Assemblymember for the 66th Assembly District, BARBARA WEINSTEIN, JUDITH CHAZEN WALSH, SUSAN TAYLORSON, MARK CRISPIN MILLER, ALAN HERMAN, ANNE HEARN, JEFF GOODWIN, JODY BERENBLATT, NYU FACULTY AGAINST THE SEXTON PLAN, GREENWICH VILLAGE SOCIETY FOR HISTORIC PRESERVATION, HISTORIC DISTRICTS COUNCIL, WASHINGTON SQUARE VILLAGE TENANTS' ASSOCIATION, EAST VILLAGE COMMUNITY COALITION, FRIENDS OF PETROSINO SQUARE, by and in the name of its President, GEORGETTE FLEISCHER, LAGUARDIA CORNER GARDENS, INC., LOWER MANHATTAN NEIGHBORS' ORGANIZATION, SOHO ALLIANCE, BOWERY ALLIANCE OF NEIGHBORS, by and in the name of its Treasurer, JEAN STANDISH, NOHO NEIGHBORHOOD ASSOCIATION, by and in the name of its Co-Chair JEANNE WILCKE, and w ASHINGTON PLACE BLOCK ASSOCIATION, by and in the name ofits president, HOWARD NEGRIN, Petitioners-Respondents-Appellants, For A Judgment Pursuant to CPLRArticle 78 against ROSE HARVEY, as Acting Commissioner of the New York State Office of Parks, Recreation and Historic Preservation, THE NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, PAUL T. WILLIAMS, JR., as the President and the Chief Executive Officer of Donnitocy Authority of the State ofNew York, DORMITORY AUTHORITY OF THE STATE OF NEW YORK, Respondents, (Additional Caption on the Reverse) REPLY BRIEF OF PETITIONERS-RESPONDENTS-APPELLANTS Of Counsel: Randy M. Mastro Caitlin J. Halligan Indraneel Sur Gabriel K. Gillett Sarah Vacchiano Laura F. Corbin GIBSON, DUNN & CRUTCHER LLP Attorneys for Petitioners- Respondents-Appellants 200 Park A venue NewYork,NewYork 10166 212-351-4000 rmastro@gibsondunn.com VERONICA M. WHITE, as Commissioner of the New York City Department of Parks and Recreation, THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, JANETTE SADIK- KHAN, as Commissioner of the New York City Department of Transportation, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, MATHEW M. WAMBUA, as Commissioner of the New York City Department ofllousing Preservation and Development, and THE NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, AMANDA BURDEN, as Director of the New York City Department of City Planning and Chair of the New York City Planning Commission, THE NEW YORK CITY PLANNING COMMISSION, THE NEW YORK CITY DEPARTMENT OF CITY PLANNING, CHRISTINE QUINN, as Speaker of the New York City Council, THE NEW YORK CITY COUNCIL, THE CITY OF NEW YORK, Respondents-Appellants-Respondents, and NEW YORK UNIVERSITY, As a Necessary Third-Party Appellant-Respondent. CORPORATE DISCLOSURE STATEMENT Pursuant to 22 NYCRR § 500.l(f): 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 s!ates that it is a neighborhood association, that it has no parent or subsidiary, and that it is affiliated with co- petitioner the Historic Districts Council. Petitioner LaGuardia Comer Gardens, Inc. states that it is a nonprofit corporation with no corporate parents, subsidiaries or affiliates. C-1 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). C-2 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ..................................................... C-1 INTRODUCTION ..................................................................................................... 1 ARGUMENT ............................................................................................................. 5 I. Long Continuous Public Use, Actively Promoted By Municipal Officials, Is The Key Indicator Of Implied Dedication Of Municipal Property As Parkland ......................................................................................... 5 A. Uninterrupted Public Use Actively Promoted For Decades By The Owner Is Strong Evidence Of Dedication And Acceptance ...................... 6 B. City Properfy Is Not Exempt, "Categorically" Or Otherwise, From Implied Dedication At Common Law ...................................................... 15 C. NYU And The City's Effort Here To Undermine State Legislative Authority Should Be Rejected .................................................................. 20 II. The City Manifested Its Intent To Dedicate The Four Parcels As Parks By Actively Promoting Their Continuous Public Use As Parks For Decades ............................................................................................................ 21 A. The Long Continuous Public Use Of These Parcels, Coupled With The City's Manifold Actions Inviting Their Use As Parks, Show That The City Intentionally Held Them Out As Parkland ....................... 22 B. The Undisputed Evidence Of The City's Manifest Intent Overwhelms The Arcane Maps And Few Documents On Which Respondents Rely ..................................................................................... 33 C. The Additional Policy Concerns Advanced By Respondents And Their Amici Are Misplaced ..................................................................... .43 III. The Proper Remedy Here Under SEQRA And The Public Trust Doctrine Is An Injunction Against Further Construction And Annulment Of The City's Approvals OfNYU's Plan .................................... .47 TABLE OF AUTHORITIES Cases Angiolillo v. Town of Greenburgh, 290 A.D.2d 1 (2d Dep't 2001) ............................................................................. 29 Capruso v. Vil!. Kings Point, 23 N.Y.3d 631 (2014) ................................................................................... 14, 34 City of Buffalo v. Del. Lackawanna & WR.R. Co., 190 N.Y. 84 (1907) .............................................................................................. 18 City of Cohoes v. Del. & Hudson Canal Co., 134 N.Y 397 (1892) ............................................................................................. 16 Cook v. Harris, 61 N.Y. 448 (1875) ................................................. 7, 8, 14, 16, 23, 26, 42, 43, 44 Druke v. Town of Newfane, 409 A.2d 994 (Vt. 1979) ........................................................................................ 9 E. Rochester v. Rochester Gas & Elec. Corp., 289 N.Y. 391 (1943) ............................................................................................ 29 Flack v. Vil!. of Green Island, 122 N.Y. 107 (1890) ....................................................................... 6, 7, 11, 14, 23 French Inv. Co. v. City of NY, 39 N.Y.2d 587 (1976) .......................................................................................... 20 Friends of Petrosino Sq. v. Sadik-Khan, 42 Misc.3d 226 (Sup. Ct. N.Y. Cnty. 2013) ........................................................ 25 Friends of Van Cortlandt Parkv. City of NY, 95 N.Y.2d 623 (2001) ................................................................................... 32, 46 Glenbriar Co. v. Lipsman, 5 N.Y.3d 388 (2005) ............................................................................................ 29 Hechter v. NY Life Ins. Co., 46 N.Y.2d 34 (1978) ............................................................................................ 18 11 TABLE OF AUTHORITIES (continued) Haldane v. Trs. of Cold Spring, 21 N.Y. 474 (1860) ....................................................................................... 3, 7, 8 Hollywood, Inc. v. Zinkil, 403 So. 2d 528 (Fla. Dist. Ct. App. 4th Dist. 1981) ............................................ 23 Hotel Emps. & Rest. Emps. Union v. City of NY Dep 't of Parks & Recreation, 311 F .3d 534 (2d Cir. 2002) ................................................................................ 24 Hunter v. Trs. of Sandy Hill, 6 Hill 407 (1844 ) ............................................................................... 15, 16, 39, 45 In re Enforcement of Tax Liens ex rel. Cnty. of Orange, 75 A.D.3d 224 (2d Dep't 2010) ........................................................................... 16 LaPorto v. Vil!. of Philmont, 39 N.Y.2d 7 (1976) .............................................................................................. 15 London v. Art Comm 'n of N. Y, 190 A.D.2d 557 (1st Dep't 1993) ........................................................................ 49 McCord v. Hays, 302 S.W.2d 331 (1957) .......................................................................................... 9 Menstell v. Johnson, 262 P. 853 (Or. 1927) ............................................................................................ 9 Mid-Cnty. Cemetery Dist. v. Thomason, 518 P.2d 174 (Or. 1974) ........................................................................................ 9 N. Y C. Coal. to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337 (2003) ........................................................................................ 48 Newton v. City of Dunkirk, 121 A.D. 296 (4th Dep't 1907) ............................................................................ 10 Niagara Falls Suspension Bridge Co. v. Bachman, 66 N. Y. 261 (1876) ............................................................................................... 7 111 TABLE OF AUTHORITIES (continued) Pearlman v. Anderson, 35 A.D.2d 544 (2d Dep't 1970) .......................................................................... .44 People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394 (1937) ....................................................................... 7, 8, 12, 26, 35 People v. Schulz, 67 N.Y.2d 144 (1986) .......................................................................................... 30 People v. Underhill, 144 N.Y. 316 (1895) ............................................................................................ 35 Pirman v. Co11fer, 273 N.Y. 357 (1937) ............................................................................................ 16 President & Fellows of Middlebury Coll. v. Cent. Power Corp., 143 A. 384 (Vt. 1928) ............................................................................................ 9 Riverkeeper, Inc. v. Planning Bd. of Se., 9 N.Y.3d 219, 229-30, 232, 233 n.1 (2007) ........................................................ .49 Riverview Partners v. City of Peekskill, 273 A.D.2d 455 (2d Dep't 2000) .................................................................. 10, 24 Sackett v. Storm, 480 N.W.2d 377 (Minn. Ct. App. 1992) ................................................................ 9 Spencer v. Town of Arlington, 49 Wash. 121 (1908) .............................................................................................. 9 Stahl Soap Corp. v. City of N Y, 5N.Y.2d203(1959) ..................................................................................... 18,19 Town of Hooker v. Morris, 218,P. 869 (Okla. 1923) ......................................................................................... 9 Tri-Cnty. Taxpayers Ass 'n v. Town Bd. of Queensbury, 55 N.Y.2d 41, 43, 46 (1982) ............................................................................... .48 IV TABLE OF AUTHORITIES (continued) Union Sq. Park Cmty. Coal., Inc. v. N.YC. Dep't of Parks& Rec., 22 N.Y.3d 648 (2014) .......................................................................................... 33 Van Cleve v. Town of Eatonville, 135 Wash. App. 1049 (Wash. Ct. App. Nov. 14, 2006) ................................. 9, 18 Varallo v. Metro. Gov't of Nashville & Davidson Cnty., 508 S.W.2d 342 (Tenn. Ct. App. 1973) ................................................................. 9 Vil!. of Croton-on-Hudson v. Cnty. of Westchester, 38 A.D.2d 979 (2d Dep't 1972), aff'd, 30 N.Y.2d 959 (1972) .............................. 7 Vil!. of Mankato v. Willard, 13 Minn. 13 (1868) ................................................................................................ 9 Williams v. Gallatin, 229 N.Y. 248 (1920) ............................................................................... 30, 46, 48 Statutes CPLR § 5501 .......................... '. ................................................................................. 22 CPLR § 550l(b) ....................................................................................................... 29 CPLR § 7804(h) ....................................................................................................... 29 N.Y. E.C.L. § 8-0103(6) .......................................................................................... 48 N.Y.C. Admin. Code § 5-430 .................................................................................. 17 N.Y.C. Charter§ 199 ............................................................................................... 17 Other Authorities Arthur Karger, Powers of the New York Court of Appeals § 13: 1 (3d ed. 2005) ........................................................................................................ 29 Black's Law Dictionary (10th ed. 2014) ................................................. 11 v TABLE OF AUTHORITIES (continued) 1 Byron Kosciusko Elliott & William Frederick Elliott, A Treatise on the Law of Roads and Streets§ 150, at 169 (3d ed. 1911) .................................. 19 26 C.J.S. Dedication§ 48 (2014) ......................................................... 35 1 lA Eugene McQuillin, The Law of Municipal Corporations§ 33:38 (3d ed. 2012) ........................................................................................................ 24 1 lA Eugene McQuillin, The Law of Municipal Corporations § 33 :65 (3d ed. 2012) ........................................................................................................ 35 1 lA Eugene McQuillin, The Law of Municipal Corporations § 33 :33 (3d ed. 2012) ........................................................................................................ 23 N.Y. Op. Att'y Gen. (Inf.) No. 315, 1974 WL 324388 ................................................. ~ ............................................... 13 Restatement (Third) of Property: Servitudes § 2.18 cmt. f (2000) ................ 9, 17 4 Tiffany, Herbert Thorndike, The Law of Real Property § 1102 (3d ed.) (Sept. 2014 update) .......................................................................... 10, 13, 23 Webster's Ninth New Collegiate Dictionary 724 (1988) ........................................... 3 Constitutional Provisions N.Y. Const. art. VI,§ 3 ............................................................................................ 22 Vl INTRODUCTION The key question in this case is when a local government's public declarations and actions trigger the protections of the Public Trust Doctrine. NYU and the City ask this Court to ignore the law that has existed in this State for more than a century and, instead, endorse a new, constraining rule that would all but obliterate implied dedication. Longstanding precedents of this Court hold-that when the City manifests its intent to the public to dedicate a parcel as parkland, its actions have exactly that effect. Consistent with this Court's teachings, when City officials hold municipal land out to the public as a park for decades, actively promote and fund the public's use of that land as a park, publicly proclaim the site to be a park in official dedication ceremonies, on City websites, and otherwise, and take credit for providing the public with this park space, then the land becomes a park through implied dedication. Not only does that rule comport with precedent, but it holds City officials accountable for the consequences of their actions, respects the settled expectations of the public about the availability of parkland, and preserves the State Legislature's ultimate authority to guard and decide the fate of our cherished parkland. NYU and the City ask this Court to upend that settled law. Under their version of the Public Trust Doctrine, if land has been expressly dedicated for any purpose, or if a major landowner (such as NYU) manages to stymie efforts the City is otherwise willing to undertake to expressly dedicate a parcel as parkland, implied dedication is foreclosed-forever. Indeed, in its zeal to back NYU, the City now takes the extreme posture that once parcels are mapped as streets, they become "categorically" exempt from implied dedication under the common law. City Br. 64. No court has ever endorsed such an untenable position. Indeed, that formulation of implied dedication would allow local officials to promote public use of a park, subsidize that use, publicly declare the site to be a "park" at dedication ceremonies or otherwise, reap political goodwill from making park space available to its citizens, and then claim that the public somehow got it wrong when they took their local government up on its offer and at its word. This Court should reject that indefensible position as a sharp and unwarranted departure from settled precedent. The position espoused by NYU and the City here cannot prevail because it would encroach upon the State Legislature's paramount role as gatekeeper of our public parks and upend the public's justified expectation to be able to continue to use land long made available to it by its local government for recreational purposes. NYU and the City proffer a skewed version of events that ignores key evidence and disregards the findings of the trial court. They barely acknowledge the undisputed fact that top City officials presided over public dedication ceremonies at two of the parcels years ago, and expressly told the public that one of the parcels had been "formally transferred" to the Parks Department and become 2 parkland under its full control. And NYU spins a version of events that is contrary to the facts as found by the trial court and relies largely on obscure, irrelevant snippets from the record-as though it were the task of this Court to determine facts in the first instance-a sure sign that NYU and the City cannot prevail on the facts as determined by the trial court and left in place by the Appellate Division. Unable to address Petitioners' actual arguments, both NYU and the City, in their desperation, resort to mischaracterizing them. Contrary to what NYU claims, Petitioners have never asserted that "[i]f the public treats the land as a park, it is a park." NYU Br. 48; see also City Br. 52. Petitioners have explained throughout this litigation that what makes public space parkland is the government "manifesting" its "unequivocal" intention, through its public declarations and actions, to invite the public to use that land for public recreational purposes, and the public then accepting that offer. Haldane v. Trs. of Vil!. of Cold Spring, 21 N.Y. 474, 477 (1860). NYU and the City distort this legal standard to focus entirely on the adjective "unequivocal," ignoring altogether the crucial verb that holds this legal standard together-namely, that the government must "manifest" its intention. By its plain dictionary definition, the government "manifests" its intention when it "make[s] evident or certain by showing or displaying." Webster's Ninth New Collegiate Dictionary 724 (1988). Thus, this legal standard for implied dedication 3 depends on what City officials "showed or displayed" to the public, not on what some officials may have kept to themselves privately within the government. Here, there can be no doubt that the City showed and displayed its intention to the public to dedicate these four parcels as parks by its consistent public words and actions over many decades. What certain City officials may have plotted to do privately at various times or said to one another internally-for example, in interagency memoranda-did not manifest anything to the public at large and, thus, is irrelevant to the implied dedication analysis. Despite NYU's baffling assertion as a scare tactic that a ruling for Petitioners will grind municipal beautification efforts to a "screeching halt," somehow preventing cities from "allow[ing] public seating or improv[ing] an area with trees, much less with a playground," NYU Br. 57, nothing in the law or facts at issue here runs any such risk. Each parcel has to be considered on its own unique facts, and here, those facts compel the conclusion that these four sites used as public parks for decades with the City's encouragement have long been and, in fact, remain parks by implied dedication. At its core, the City is asking this Court to ratify its brazen effort to expand municipal power by allowing local officials to assuage private interests at the expense of public parks, and to concurrently curtail the State Legislature's role in guarding against local efforts to cavalierly dispose of cherished parkland. NYU and the City cite the words on arcane City maps and in 4 internal interagency memoranda, but what matters here are the City's public words and actions manifesting its intent to the public to use these sites as parks. The City's public words and actions since abandoning the ill-fated downtown "Lomex" expressway project in 1969-by promoting, fostering, and subsidizing long continuous public recreational use of the four parks at issue here, openly supporting efforts to expressly dedicate these parcels as parks (only to be frustrated by NYU), ultimately concluding that these parcels had become parklands by implied dedication anyway, and proclaiming so at official dedication ceremonies and on government websites-say all that needs to be said here: These four sites are parks protected by the Public Trust Doctrine. ARGUMENT I. Long Continuous Public Use, Actively Promoted By Municipal Officials, Is The Key Indicator Of Implied Dedication Of Municipal Property As Parkland. As explained in our opening brief, this Court's precedents make plain that long continuous public use is the predominant factor in determining implied dedication. But the Appellate Division paid nothing more than lip service to the public's long continuous use of these four contested parcels, at the City's invitation, while according dispositive weight to circumstances relevant to express dedication. In doing so, it rendered implied dedication an empty doctrine. Petrs. Br. 32-51. In trying to rehabilitate the Appellate Division's decision, NYU and the 5 City ignore that the City actively promoted the public's use of these parcels, thereby manifesting local government's intent to dedicate the sites as parkland. That key fact unravels the common thread running through their contentions that "the owners' intent, not the public's use of property ... [is] the ultimate touchstone" (City Br. 48) and that "[p]ublic use is (at best) weak circumstantial evidence of an owner's intentions" (NYU Br. 39): Where, as here, government property is at issue, the "public's use of [the] property" as parks over several decades is surely within the power of government officials to control. And where, as here, those officials have actively promoted that public use, including through public dedication ceremonies and the expenditure of public funds, that invitation and corresponding public use is especially "strong evidence of dedication," see Flack v. Vil!. of Green Island, 122 N.Y. 107, 114 (1890), not to be shunted aside as "inconclusive" (NYU Br. 49). A. Uninterrupted Public Use Actively Promoted For Decades By The Owner Is Strong Evidence Of Dedication And Acceptance. First, both NYU and the City overlook the powerful connection between the City's encouragement of the long continuous public use of the parcels as parks- including the expenditure of public resources to maintain the parcels as parks-and the intent manifested to the public by that conduct. Petrs. Br. 38-39. Rather, they contend that long continuous public use relates only to "dedication"-but not to "acceptance" of that dedication. City Br. 52; NYU Br. 49. Even on its own terms, 6 that argument is incorrect; public use matters to both. Indeed, "dedication and acceptance may be proved by the acts of the parties, and the circumstances of the case." Cookv. Harris, 61N.Y.448, 454 (1875) (emphases added); accord Haldane, 21 N.Y. at 477 ("The dedication and acceptance are to be proved or disproved by the acts of the owner, and the circumstances under which the land has been used.") (emphases added). Prior decisions of this Court have never suggested that long public use, actively promoted by a landowner, "play[s]" only "a confirmatory role." City Br. 47; NYU Br. 54-55. Instead, this Court has explained that dedication is "a setting apart and a surrender to the public use of the land by the proprietors." People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394, 401 (1937) ("B&Q") (quoting Niagara Falls Suspension Bridge Co. v. Bachman, 66 N. Y. 261, 269 (1876) (emphasis added)). As a result, public use that is actively promoted by an owner is "strong evidence" both of dedication, Flack, 122 N.Y. at 114, and acceptance, Cook, 61 N.Y. at 453-54. Here, as in Croton-on-Hudson, the "long-continued use of the land for park purposes constitutes a dedication and acceptance by implication." Vil!. of Croton-on-Hudson v. Cnty. of Westchester, 38 A.D.2d 979, 979 (2d Dep't 1972) (emphasis added), aff'd, 30 N.Y.2d 959 (1972). Second, NYU and the City strain to subordinate "[l]ong continued and uninterrupted use," Flack, 122 N.Y. at 114, by seizing on the Court's remark in 7 Haldane that the "owner's acts and declarations should be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use." Haldane, 21 N.Y. at 477 (emphases added). They go on to posit a conflict between the statement that "acts and declarations should be ... unequivocal" and the traditional importance accorded to long continuous use. City Br. 34-43; NYU Br. 44-45, 83-85. But this Court has never diminished the importance of long public use. Nor has this Court suggested that the term "unequivocal" is the axis around which the entire implied dedication concept revolves. The signal word in the standard set forth by this Court is "manifest," not "unequivocal." See B&Q, 273 N.Y. at 401 ("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.") (emphases added) (quoting Cook, 61 N.Y. at 454). Government officials certainly "manifest[] a positive and unmistakable intention" to the public to dedicate when their "acts and declarations," alongside the surrounding circumstances, demonstrate that they have actively promoted the public's use of the parcel as a park. Where the public goes on to accept that dedication through actual and continued public use of the parcel as a park, implied dedication results. 1 1 The City recasts this Court's formulation in Haldane-turning "unequivocal" from a modifier of "acts and declarations" into a modifier of"intent"-and then (Cont'd on next page) 8 Fixating on the term "unequivocal," NYU and the City proffer a standard under which implied dedication fails the moment the court finds even a single shred of evidence in the record tending to disprove either dedication or acceptance, even if never "manifested" to the public. Respondents would thereby confine implied dedication to a vanishingly small set of situations, such as where express dedication has failed because of a careless gaffe or technical glitch. City Br. 45- 46. While it is unsurprising that a municipality and a private developer would embrace such a crabbed view of implied dedication, their view is not the law, nor (Cont'dfrom previous page) asserts that this "unequivocal intent" phrasing finds support in the law of seven states. City Br. 36 n.4. More instructive, however, is that at least eighteen states (including two of the seven the City tallies) have held that long continuous public use may establish a landowner's intent to dedicate parkland by implication. See Petrs. Br. 42-43 (citing cases from twelve states); see also Town of Hooker v. Morris, 218 P. 869, 872 (Okla. 1923); Van Cleve v. Town of Eatonville, 135 Wash. App. 1049, at *2 (Wash. Ct. App. 2006) (citing Spencer v. Town of Arlington, 49 Wash. 121, 123 (1908)); Vil!. of Mankato v. Willard, 13 Minn. 13, 20 (1868); Sackett v. Storm, 480 N.W.2d 377, 380 (Minn. Ct. App. 1992); Menstell v. Johnson, 262 P. 853, 856 (Or. 1927); Mid-Cnty. Cemetery Dist. v. Thomason, 518 P.2d 174, 176 (Or. 1974); Varallo v. Metro. Gov't of Nashville & Davidson Cnty., 508 S.W.2d 342, 346 (Tenn. Ct. App. 1973); McCordv. Hays, 302 S.W.2d 331, 334 (Tenn. 1957); President & Fellows of Middlebury Coll. v. Cent. Power Corp., 143 A. 384, 389 (Vt. 1928); Druke v. Town a/Newfane, 409 A.2d 994, 996 (Vt. 1979); see also Restatement (Third) of Property: Servitudes§ 2.18 cmt. f (2000) ("On the basis of long- continued public use, [courts have] found an implied offer to dedicate a servitude to the general public, which had been accepted by the public's use. Using either prescription or implied-dedication theory, the majority of American courts have permitted the acquisition of servitudes by long-continued public use."). 9 should it be the law of this State. More than a century ago courts rejected such a distressingly narrow view of implied dedication, concluding, instead, that when the circumstances are "conflicting[,] the force and effect of each should be considered and a conclusion reached in accordance with the weight of the evidence." Newton v. City of Dunkirk, 121 A.D. 296, 297 (4th Dep't 1907); Petrs. Br. 44 n.12.2 And in that examination of the relevant factors, courts have assigned longstanding public use the most prominent weight, following this Court's teaching in Flack that 2 This Court has never held that all record evidence must support a finding of intent to dedicate, and lower courts have found parcels impliedly dedicated in the presence of conflicting evidence. See, e.g., Riverview Partners v. City of Peekskill, 273 A.D.2d 455, 455-56 (2d Dep't 2000) (reversing Supreme Court and finding implied dedication despite evidence that the city did not intend to dedicate the property, including what Supreme Court called the city's "vehement letter of protest" to the Office of Parks, Recreation and Historic Preservation when that Office issued an opinion that the parcel was impliedly dedicated parkland), rev'g 1999 WL 35022563 (N.Y. Sup. Ct. Feb. 3, 1999); see also Newton, 121 A.D. at 299-300 (private landowner's acts "hedg[ing]" against "dedication" did not defeat implied dedication based on other conduct and resultant public use and public maintenance; "the question is whether the acts of [the private landowner] which tended under the [precedents] to indicate an intention to dedicate to the public were rebutted and refuted as matter of law by other acts which might have a contrary meaning"). Cf 4 Tiffany, Herbert Thorndike, The Law of Real Property§ 1102 (3d ed.) (Sept. 2014 update) ("[T]he weight to be attributed to [the owner's] acquiescence [in public use] depend[s], it would seem, on the length and character of the user, the nature of the place in which it occurs, the ability of the owner to prevent such user by the public without interfering with his own user of the land, as well as other circumstances.") (footnote omitted). 10 "[l]ong continued and uninterrupted use of land by the public ... furnishes strong evidence of dedication." 122 N.Y. at 114 (emphasis added). That "strong evidence" instruction in Flack completely refutes the position ofNYU, the City, and their amici that a landowner's intent is only "unequivocal" if there is literally no piece of evidence suggesting intent not to dedicate. Their divergent arguments on this point are tellingly irreconcilable. The City refuses to acknowledge the "strong evidence" statement at all, while conceding that Flack "could not have been clearer" that dedication and acceptance are conceptually distinct-a point Petitioners have never disputed. City Br. 54. Cf Petrs. Br. 36. NYU steers in a different direction by deriding Flack as having "muddle[ d] dedication and acceptance." NYU Br. 51 n.13. Respondents' public amici elect to ignore Flack entirely, while their private amici strain to downplay the "strong evidence" language in light of the Black's Law Dictionary definition of "common law dedication." NY4P Br. 13-14.3 Respondents and their amici have no cogent 3 Other entries in Black's further undermine Respondents' position. Black's defines express dedication as "a dedication explicitly manifested by the owner," implied dedication as "a dedication presumed by reasonable inference from the owner's conduct," and tacit dedication as "a dedication of property for public use arising from silence or inactivity and without an agreement." Black's Law Dictionary 373 (9th ed. abr. 2011). When a municipal land owner actively promotes the outdoor recreational use of a municipal parcel as a park over decades, it is more than "reasonable" to infer from that "conduct" that a dedication has resulted. 11 rationale for deviating from any of this Court's teachings in Flack, including the critically-important "strong evidence" instruction, which advises that some indicia of intent are entitled to greater weight than others. In any event, the City cannot plausibly maintain that its active promotion of the parcels for outdoor recreational use for decades was not an unequivocal manifestation of its intent that these parcels be used as parks. To the contrary, the City's affirmative conduct clearly manifests its intent to the public-an intent reinforced by the City never attempting to use or develop the parcels for a contrary purpose. Cf B&Q, 273 N.Y. at 402 (city failed to accept trolley company's parcel as a street where company had allowed "[c]rowds of people" to use parcel as trolley terminal "for many years ... without objection on the part of the city").4 As 4 NYU's effort to distinguish B&Q on its facts (NYU Br. 84 n.24) overlooks the Court's analysis of "the intent and acts of the owner and the intent and acts of the municipality" under the implied dedication framework. 273 N.Y. at 401. There, as here, the government's argument for classifying the disputed parcel as a street centered on formal mapping. See id. at 399 ("The prosecution relies mainly upon the maps ... showing Palmetto street at the location in question .... "). But because the parcel had been used as a railroad terminal and then as a trolley terminal over many decades, that "use was repugnant to the idea of a continuing dedication" attributable to maps created after ~hat use had begun, id. at 401, and, in any event, even if the record had supported finding a dedication through the initial mapping, the long decades of terminal use "without objection on the part of the city" defeated acceptance, id. at 401-02. The notion that a parcel mapped as a street remains as such in perpetuity- despite its long continuous public use for outdoor recreational purposes actively promoted by municipal officials-unless the municipality resorts to statutory (Cont'd on next page) 12 furth,er explained below, in repeated public acts and communications directed at a mass audience over many years, the City held the parcels out as parks, invested public resources in making them available as parks, and reassured members of the public that they are and would continue to be made available for use as parks. This conduct by the City's agents (and top officials) manifested an unequivocal intent to the public to dedicate the parcels as parks. 5 Whatever clues concerning intent that might have been buried in the bowels of City agency files could not have manifested anything contrary to the public, because they remained largely unknown to the general public. Infra, Point II. In an implied dedication case, the actions of government officials in holding a parcel out for public use as parkland for decades speak louder than any words. And here, those actions over many years were coupled with public words of encouragement, including official dedication ceremonies and repeated public (Cont'dfrom previous page) de-mapping procedures, cannot be reconciled with this Court's approach to implied dedication in B&Q. 5 One treatise explains: "That the public user has been accompanied by expenditures on the part of the municipal authorities, to adapt the land to such user, and that the landowner knew of such expenditures, and acquiesced therein, would appear to be a consideration indicative of an intention on his part to dedicate, or perhaps operative to preclude him from denying such intention." 4 Tiffany, Real Property§ 1102; see also N.Y. Op. Att'y Gen. (Inf.) No. 315, 1974 WL 324388 ("The expenditures of tax money for land to be used for park and recreational purposes impose a public trust upon such land."). 13 declarations that these sites are parks. The unequivocal intention manifested by the government to the public through the "acts and declarations" of its agents, Flack, 122 N.Y. at 113 (quoting Cook, 61 N.Y. at 454), far outweighs any inferences to be drawn from obscure documents and interagency memorandums reflecting at most the "secret" intention of the municipality, which has never been understood to carry meaning in an implied dedication. Petrs. Br. 48-49 & n.14; see Scholars Br. 18-21 (canvassing sister state decisions rejecting reliance on "secret" intent).6 This Court interprets the Public Trust Doctrine's protection for parks in light of what "ordinary citizens" can be expected to "know," based on what public officials have communicated to a mass audience, not what is in official government files. See Capruso v. Vil!. of Kings Point, 23 N.Y.3d 631, 641 (2014) ("[I]t would be unreasonable to expect ordinary citizens who use ... parks to know whether a particular use by a municipality has received approval by the State Legislature."). And, contrary to the efforts of NYU and the City to trivialize the role of "public perception" in the inquiry (NYU Br. 2, 4, 49, 56, 61; City Br. 3, 48, 54), that 6 NYU simply has no substantive response (NYU Br. 82 n.23) to the amici scholars' argument, based on their more than 570 years of combined experience, that it is "critical to the proper analysis" to recognize that "[w ]hatever the City's secret plans, it is the intention manifested by the City's acts and representations that, under the legal precedents, should be taken as the measure of whether there was an implied dedication of the parcels as public parks." Scholars Br. 19, 22. · 14 regard for "ordinary citizens" predates the Civil War. See Hunter v. Trs. of Sandy Hill, 6 Hill 407, 412-13 (1844) ("The law [of implied dedication] ... will not permit any one thus to break his own plighted faith; to disappoint honest expectations thus excited, and upon which reliance has been placed.") (emphasis added). B. City Property Is Not Exempt, "Categorically" Or Otherwise, From Implied Dedication At Common Law. NYU and the City next contend that the implied dedication claim here amounts to an impermissible estoppel against the government, that parcels municipally owned or mapped as "streets" are exempt from implied dedication, and that it should be harder to prove implied dedication against a municipality than against a private landowner. NYU Br. 59; City Br. 55-56. Their contentions are spec10us. First, NYU and the City try to recharacterize the implied dedication claim in this case as garden-variety estoppel, and then argue that estoppel is not readily available against a government agency. City Br. 56; NYU Br. 61. That general rule is not applicable here. The concept of estoppel "may be asserted against a municipality," and although estoppel is not available "to prevent a municipality from disclaiming the unauthorized or unlawful acts of its officers," LaPorto v. Vill. of Philmont, 39 N.Y.2d 7, 12 (1976), no one has alleged that any of the acts of City officials at issue in this case (including dedication ceremonies at the parcels and 15 investment of public funds to maintain the parcels as parks, among the circumstances described further in Point II, infra) was "unauthorized or unlawful." Id.; see also In re Enforcement of Tax Liens ex rel. Cnty. of Orange, 75 A.D.3d 224, 238 (2d Dep't 2010). In any event, this case turns on the implied dedication doctrine, not broad principles of estoppel. Well over a hundred years ago, this Court in Cook explained that implied dedication rests on the common law principle of estoppel in pais, 61 N.Y. at 453 (citing Hunter, 6 Hill 407), which holds landowners to the consequence of their actions in throwing open parcels to public use, so as to protect the "honest expectations" of the public, Hunter, 6 Hill at 412; see also City of Cohoes v. Del. & Hudson Canal Co., 134 N.Y 397, 402 (1892); Petrs. Br. 34 n.7, 38, 49-50. Estoppel in pais binds government officials to the consequences of their conduct as landowners just as it does private property owners, as has been clear at least since Croton-on-Hudson sustained an implied dedication claim against a county.7 See Scholars Br. 14-16. 7 Prescriptive rights are not implicated here. Respondents never suggested otherwise to the Appellate Division, and, tellingly, the City has raised no such concern in its brief to this Court. NYU nevertheless now claims for the first time here that crediting the strong evidence of the public's long-term, uninterrupted use of the four contested parcels would blur the line between prescription and implied dedication. NYU Br. 59-60. But prescription requires that the claimed private use of a parcel be "adverse" or "hostile" to the ownership interest of the proprietor, and thus not "by the permission and implied consent" of the proprietor. See, e.g., Pirman v. Confer, 273 N.Y. 357, 364 (1937). This case involves no such adversity: No one suggests that the (Cont'd on next page) 16 Second, NYU and the City contend that any parcels mapped as "streets" are "categorically" exempt froni implied dedication because "streets" are "inalienable" under Section 20(2) of the General City Law. City Br. 63-70; NYU Br. 86-87. Adopting a "categorical[]" exemption from implied dedication would magnify the Appellate Division's error on this point. A.1 :5 (App. Div. Opp. at 74). Precedent provides no support for such a carve-out, see Petrs. Br. 46-47, and Respondents' arguments for one fail on their own terms. To begin with, the General City Law does not treat streets and parks equivalently. Section 20(7) authorizes those municipalities that are subject to the General City Law to close streets, but confers no equivalent authority to close or even intrude on parks. The State Legislature has granted the City authority parallel to that conferred on other municipalities in Section 20(7), and the City has exercised that authority, through the City Charter and City Administrative Code (N.Y.C. Charter§ 199; N.Y.C. Admin. Code§§ 5- 430 et seq.), which set forth specific procedures for the City's closure of streets. But the State Legislature has not granted the City authority to intrude on parks. None of the enactments specific to the City clearly express legislative intent to (Cont'd/ram previous page) public has been using the parcels to garden, skateboard, jump rope, and walk dogs all these years without the consent of the City. In any event, "[u]sing either prescription or implied-dedication theory, the majority of American courts have permitted the acquisition of servitudes by long-continued public use." Restatement (Third) of Property: Servitudes § 2.18 cmt. f. 17 override any dimension of the common law public trust doctrine, including the established framework for implied dedication. Nor can such intent be presumed- a point made in our opening brief, and one that NYU and the City fail to address. See, e.g., Hechter v. NY Life Ins. Co., 46 N.Y.2d 34, 39 (1978); Petrs. Br. 60-61. Indeed, there is wide recognition that, absent a clear legislative statement, a statute authorizing the mapping of a parcel for a specified public use does not cut off the common law as a mechanism for dedication to a different use. Scholars Br. 23-27; see, e.g., Van Cleve, 135 Wash. App., at *2 (distinguishing statutory from common law dedication channels). Moreover, as explained in our opening brief, the public is not "traveling upon" the parcels at issue, as ample record evidence confirms, and "the action of the general public in no longer traveling upon" a highway causes it to "cease[]" to be one. Petrs. Br. 61-62 (citing City of Buffalo v. Del. Lackawanna & WR.R. Co., 190 N.Y. 84, 96 (1907)); A.8:3155-56 (Steed Aff. i14), 3135 (Maddow Aff. i1i13- 7), 3184 (Papadeas Aff. i1 6). The City contends that City of Buffalo "concerned an implied dedication by a private owner," and asserts that, under Stahl Soap Corp. v. City ofN Y, 5 N.Y.2d 203 (1959), the "action of the general public" is not an available channel through which a highway "cease[s]." City Br. 64-65, 68 n.6. That misreads Stahl as imposing a restriction on the common law nowhere to be found in this Court's decisions. Rather than barring any inquiry into the status of a 18 parcel that had been mapped as a street, this Court in Stahl ordered the reinstatement of a resident's complaint, which challenged as unlawful the City's closure of a particular street and alleged that "the conditions for the exercise of the [City's] power were not present."8 5 N.Y.2d at 205-06. That holding-allowing a claim that City officials erred in invoking their statutory authority to close a street to go forward-provides no support for the contention that statutes regarding street closure somehow foreclose land once mapped as a street from being impliedly dedicated as parkland. Taken together, NYU's and the City's arguments for avoiding implied dedication and for subordinating the common law to formal mapping amount to a radical misreading of the law by positing that an implied dedication claim against a municipality faces a higher bar than one against a private landowner. That is wrong today as it long has been under Anglo-Saxon common law. "The crown may certainly dedicate to the public, and be bound by acquiescence in long public user." I Byron Kosciusko Elliott & William Frederick Elliott, A Treatise on the Law of Roads and Streets§ I50, at I69 (3d ed. I9I I) (quoting Queen v. East Mark, I I Q.B. 877 (I848)). Moreover, it ignores the special respect accorded to private property, see Fred F French Inv. Co. v. City of NY, 39 N.Y.2d 587, 59I 8 NYU never cites Stahl, an omission confirming that the decision does not have the significance the City strains to attribute to it. I9 ( 197 6), and undermines important values of transparency and government accountability. To accept that argument would be tantamount to telling the public that it cannot trust the representation of government officials about the availability of public parks maintained with public dollars. Not surprisingly, this Court's decisions provide no support for such a cynical proposition. C. NYU And The City's Effort Here To Undermine State Legislative Authority Should Be Rejected. As explained in our opening brief, the legal standard the Appellate Division applied provides a blueprint for municipal evasion of the Public Trust Doctrine because it assigns controlling weight to maps, interagency memorandums, and a few communications to individuals, not the public at large. Petrs. Br. 50-51. NYU and the City try to defend the decision by asserting, quite remarkably, that applying the Public Trust Doctrine here will somehow jeopardize "separation of powers," NYU Br. 63, and "subvert the democratic process," City Br. 69. Those contentions are both specious and ironic, given the disrespect for government accountability and transparency that suffuses Respondents' positions in this case. See N.Y. Civic Br. 6-7, 12-13, 18 (describing democratic values promoted by the Public Trust Doctrine). What the City really wants is permission from this Court to backtrack on decades of representations City officials made to the public about the availability of these four parks and the City's commitment to subsidize and maintain them. 20 Equally astonishing is the City's claim that the neutral review and approval process mandated by the Public Trust Doctrine is a "substantial intrusion" that should be cast aside to expedite a massive private development project. City Br. 71. Plainly, the City is a creature of State law subordinate to the State itself. Accordingly, the City cannot use authority conferred by the State to manage municipal property in order to evade the State Legislature's review of a decision to tum over land for private use. See Legis. Br. 11-20. Municipalities from all comers ofNew York go through the State Legislature's well-functioning process for reviewing and approving proposed municipal alienation of parkland (Legis. Br. 7-8), and there is no support in the voluminous record before this Court for the City's claim that such a routine review process will somehow wreak havoc. Indeed, it is the City's stance (City Br. 71) that would "work[] a substantial intrusion" on State sovereignty. Its arguments on this point lay bare the underlying illegitimacy of the City's apparent goal here: to secure more municipal power at the expense of the State Legislature. II. The City Manifested Its Intent To Dedicate The Four Parcels As Parks By Actively Promoting Their Continuous Public Use As Parks For Decades. Petitioners laid out in their opening brief the overwhelming record evidence that all four of the contested parcels became parks through long continuous public 21 use that was actively promoted by public officials.9 Respondents do not meaningfully refute that evidence or offer their own counter evidence. Instead, they double down on the Appellate Division's flawed determination that governmental intent can be gleaned solely from the City map, NYU' s self- interested efforts to prevent express dedication of these parcels, and a few stray documents unknown to the public at large, if anyone outside government at all. And they resurface policy arguments that this Court has foreclosed for a century. A. The Long Continuous Public Use Of These Parcels, Coupled With The City's Manifold Actions Inviting Their Use As Parks, Show That The City Intentionally Held Them Out As Parkland. While both NYU and the City mischaracterize Petitioners' implied dedication claim as hinging on public use alone (NYU Br. 51, 82 n.23; City Br. 47, 52) that is incorrect. This case revolves not around mere public use, but long continuous public use of municipal land that was actively promoted by the 9 The scope and duration of the use of these parcels are questions of fact that the trial court answered conclusively when it found, after a thorough examination of all evidence, that "petitioners have certainly shown long continuous [use] of the four parcels as parks." A. l :48 (Trial. Op. at 35). The Appellate Division did not purport to revisit any factual findings, stating that its decision was "on the law" alone. A.I :4 (App. Div. Op. 73). See N.Y. Const. art. VI,§ 3; see also CPLR 5501. Even ifthe trial court's findings of fact were not conclusive on this Court-which they are, see Petrs. Br. 68 n.19-the evidence of public use of the parcels as parks, and the City's active encouragement and endorsement of that use, is overwhelming. 22 responsible municipal officials-including through the expenditure of substantial public funds and through public pronouncements declaring these sites to be parks. 10 Precedent confirms that while long public use is the most significant indicator of municipal intent to dedicate, other indicia of such intent include: • Capital funding allocated by the City for construction or improvement of a park; 11 • The Parks Department's maintenance and improvement of a park; 12 • City officials' public statements, including at dedication ceremonies, identifying the property as parkland; 13 • The presence of the Parks Department's flag and other indicia of oversight by the parks agency; 14 • The Parks Department's authority over public access to a park; 15 10 Respondents assert that the City had no involvement with the Mercer-Houston Dog Run (NYU Br. 26, 74; City Br. 41) but this is incorrect. NYU built the Dog Run in 1979 as part of an agreement with the City that allowed NYU to build Coles Gym but required NYU to assume the municipality's responsibility to maintain the Dog Run. Petrs. Br. 19-20 & n.5. See infra Point II.A.4. 11 See N.Y. Op. Att'y Gen. (Inf.) No. 315, 1974 WL 324388; 4 Tiffany, Real Property § 1102. 12 See Flack, 122 N.Y. at 116; Cook, 61 N.Y. at 454. 13 See Friends of Petrosino Sq. v. Sadik-Khan, 42 Misc.3d 226, 230 (Sup. Ct. N.Y. Cnty. 2013); see also 1 lA McQuillin, Mun. Corp. § 33:33. 14 See, e.g., Hollywood, Inc. v. Zinkil, 403 So. 2d 528, 532-33 (Fla. Dist. Ct. App. 4th Dist. 1981). 23 • Signs identifying the site as parkland under the Parks Department's jurisdiction;16 and • References to the property as parkland on the Parks Department's website. 11 A.8:3142-43 (Stem Aff. ii 17). As the undisputed facts establish, the City's persistent course of conduct unequivocally communicated to the public that the parcels at issue here are park space, available for recreational use under the banner of the City. The City held public dedication ceremonies featuring the Parks Commissioner and the Mayor, distributed brochures with the Parks Department insignia, posted Parks Department signs, raised the Parks Department flag, had the Parks Department maintain the parks, allocated and contributed funds for the parks, listed them as parks and made statements declaring them as parks on the Parks Department's website, and, when the public responded to the City's invitation and used the parcels as parks, encouraged that use for decades. (Cont'd from previous page) 15 Seel lA Eugene McQuillin, The Law of Municipal Corporations§ 33:38 (3d ed. 2012). 16 See Riverview, 273 A.D.2d at 455-56; Petrosino Sq., 42 Misc. 3d at 231-32. 17 Cf Hotel Emps. & Rest. Emps. Union v. City ofN.Y. Dep't of Parks & Recreation, 311 F.3d 534, 549 (2d Cir. 2002). 24 Although NYU and the City mention these municipal "acts and declarations" only in passing, if at all, they cannot dispute the significance of this conduct. 18 When "the City holds land out as a park and the public uses land as a park," Petrosino Sq., 42 Misc.3d at 230, implied dedication attaches to the land. / This prevents the City from reaping all of the political benefits attendant to providing citizens with recreational space while avoiding the consequences and responsibilities of dedicating parkland in this State. 1. Mercer Playground As the trial court found, Mercer Playground has "virtually all of the indicia suggested by former [Parks Department] Commissioner Stem to show the City's intent to treat the property as parkland where formal mapping as a park is absent." A.1 :49 (Trial Op. at 36). It was dedicated at a formal ceremony in 1999 that was orchestrated by the City and attended by public officials, at which it was announced to the public that the parcel was "formally transferred" to the Parks Department. A.8:3090-92 (Opening Day Brochures). The dedication ceremony was described by former Councilwoman Freed as "from beginning to end, a Parks Department affair and was perceived by those of us present, in every sense of the 18 At the same time, Respondents attempt to minimize the significance of the Parks Department's superintendence of the parcels by stressing that DOT retained jurisdiction over the land. City Br. 41-42; see NYU Br. 73 n.22. But as explained below, documents regarding DOT's jurisdiction hardly represent the City's manifestation of its intent to the public. See infra, Part II.B.2. 25 word, a dedication of the park to the public." A.8:3167 (Freed Aff. at ,-i 13). Indeed, the City trumpeted the official park-status of Mercer Playground on its website-expressly stating that "the site was formally transferred to Parks"- before removing the reference months into this litigation. A.8:3081 (Parks Department webpage ). It is difficult to imagine a more "unequivocal" showing of intent than this public announcement. Notably, the City does not even mention these public declarations by its own officials; NYU relegates them to a footnote, in which it says that the brochure distributed at the ceremony "was incorrect." NYU Br. 73 n.22. What NYU fails to grasp is that the factual accuracy of the brochure is inconsequential in this context. Regardless of whether the City actually transferred jurisdiction over the parcel to the Parks Department, the City told the public that it did. And manifested intent- not actual intent-governs the implied dedication inquiry.19 19 NYU's critique of the brochure typifies Respondents' misguided insistence on focusing on actual intent to dedicate, rather than on the intent manifested to the public to dedicate. Cf Cook, 61 N.Y. at 454 ("The owner's acts and declarations should be such as to manifest an intention to abandon or devote his property to a specific public use."); B&Q, 273 N.Y. at 401 ("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 .... "). And NYU has no rejoinder to the City's public declaration-on its website until six months into this litigation-that Mercer Playground was a park under the Parks Department's jurisdiction. Compare A.8:3081 with City Parks Department Website, Mercer Playground, http://www.nycgovparks.org/parks/mercer- playground/history. 26 These actions caused the public-including high-ranking public officials- to believe Mercer Playground was a park. Former Councilwoman Freed, who allocated $250,000 to Mercer Playground's construction and spoke at the Opening Day ceremony "about the importance of parkland to a community already suffering from a severe lack of such spaces," believed the space was parkland. A.8:3167 (Freed Aff. ,-r,-r 11, 13), 3141 (Stern Aff. 3144 ,-r 19). So did members of the public. A.8:3184 (Pappadeas Aff. ,-r 5) ("At the time Mercer Playground was dedicated, there was no doubt in my mind that it was a park."). In the years following the dedication ceremony, the City continued to encourage the public to use the parcel through the Parks Department's maintenance of the park (A.8:3087), and displaying Parks Department insignia prominently on the signs (A.8:3082, 3085, 3086), flag (A.8:3088), and even on the pavement and drains in the park (A.8:3083-84). Respondents argue that such signage shows management only (NYU Br. 74; City Br. 28)-but that is not what the signs say. Nor do they communicate mere management, especially when viewed in conjunction with the City's plain statement at the dedication ceremony in 1999 and on its website that the Parks Department was much more than just a temporary manager of this park. 27 2. LaGuardia Park LaGuardia Park, too, was the site of an official public dedication ceremony in which City officials ostentatiously participated. In 1994, an official ceremony featuring four City Mayors was held presenting to the public the signature statue of Mayor LaGuardia. A.6:2026-28. Mention of this ceremony is conspicuously absent from both NYU and the City's briefs. As with Mercer Playground, members of the City Council allocated government dollars to help pay for construction of a toddler playground in LaGuardia Park, Adrienne's Garden, (A.I: 161); A.8:3101-04 (GersonAff. iii! 10-14), 3168 (FreedAff. iii! 16-17).20 Back in 1989, the City told Friends of LaGuardia that it could "see how much of an improvement the park will be," and was "proud to have played a constructive role in this important project." Friends of LaGuardia Pl. Br. Ex. D. Today, LaGuardia Park also prominently displays Parks Department insignia and is listed on the Parks Department website. A.8:3094-94, 3097. The community reasonably relied on these outward manifestations of intent to dedicate, and has used the park since the 1980s as a recreational space, to enjoy the trees and fresh air, and for recreational events and installations. See Friends of LaGuardia Pl. Br. 29-30, Ex. A (NYU internal memo explaining that "ifthe City will add [the area that is 20 Respondents make much of the timing of the opening of Adrienne's Garden, (NYU Br. 21, 67; City Br. 21), but that is inconsequential. Adrienne's Garden simply confirms the earlier dedication for recreational use. 28 now La Guardia Park] to its park facilities, it would enhance the livability of the area while not placing the financial burden on the University"). In the face of this evidence, NYU and the City adopt the ludicrous position that LaGuardia Park and the other parcels are "thoroughfares" and thus cannot be parks. NYU Br. 11, 20, 67; City Br. 60. A thoroughfare, by law and by common sense, is distinct from a park, as it "essentially serves a different purpose"-one of "transportation rather than recreation." Angiolillo v. Town of Greenburgh, 290 A.D.2d 1, 11 (2d Dep't 2001) (distinguishing between a parkway, "a thoroughfare for vehicular traffic," and a park); cf E. Rochester v. Rochester Gas & Elec. Corp., 289 N.Y. 391, 398 (1943) ("public highways constitute in their very nature arteries of travel"). The record contains overwhelming evidence that all of the parcels serve as outdoor recreational space for the public, and are not "arteries oftravel."21 21 The Appellate Division's characterization of LaGuardia Park as a "pedestrian thoroughfare" was unsupported by the trial court's ruling, and as a new factual determination, should be reviewed and rejected by this Court as not "comport[ing] with the evidence." Glenbriar Co. v. Lipsman, 5 N.Y.3d 388, 392 (2005); see Arthur Karger, Powers of the New York Court of Appeals§ 13:1 (3d ed. 2005); cf supra, note [5]. NYU errs in contending (Br. 35 n.12, 69) that the Appellate Division's drive-by characterization is unreviewable because there was no trial held below. In particular, NYU presupposes that a "question[} of fact" reviewable by this Court when it is found for the first time by the Appellate Division, see CPLR § 5501 (b ), is the same thing as a "triable issue of fact" on which Supreme Court must hold a trial if it arises in the course of deciding an Article 78 petition, see CPLR § 7804(h). NYU further contends that because no trial occurred here on a triable issue, the case involves no question of fact. By taking a "question of fact" to be the same thing as a (Cont'd on next page) 29 In trying to defend their "thoroughfares" argument, the City and NYU point to the presence of paved areas in the parks that can be traversed on foot or even skateboard. City Br. 60; NYU Br. 20, 24. Under that logic, even Central Park would be relegated to "sidewalk" status. See N.Y. Civic Br. 23. More importantly, this impoverished understanding of parkland would especially endanger those parks that are-as Mercer Playground is-enclosed play-spaces of concrete, ideal for bike-riding and playing tag, and often found in neighborhoods or schoolyards belonging to communities lacking means, for more elaborate arrangements. Importantly, parks of this kind often belong to communities that may be "financially unable to challenge the transfer of lands, even if those challenges would be victorious." Sierra Club Br. 11. The Public Trust Doctrine, which charges the courts of this state with holding public officials to their obligation to preserve each park as "a pleasure ground set apart for recreation of the public," Williams v. Gallatin, 229 N.Y. 248, 248 (1920), does not discriminate in this inequitable fashion between parcels of land. (Cont'dfrom previous page) "triable issue" of fact, NYU incorrectly conflates "markedly different" statutory phrases, in violation of accepted rules of interpretation. See People v. Schulz, 67 N.Y.2d 144, 150 (1986) ("[T]hat the Legislature has seen fit to use markedly different language in the two provisions clearly indicates an intent that the two statutes be interpreted differently."). 30 3. LaGuardia Corner Gardens For its part, LaGuardia Comer Gardens has provided a rare haven in Greenwich Village for community members to garden, relax, and enjoy sunshine for more than three decades. A.6:2054; A.8:3320 (photographs). It was opened in 1981, and since that time, the community has used it and cared for it as an "award- winning community garden." A.8:3118 (Horan Aff. ,-i 2). Like Mercer Playground and LaGuardia Park, the Gardens features signs bearing Parks Department insignia, and officials and members of the public alike formed honest expectations that the parcel would endure as a park. A.8:3141 (Stem Aff. ,-i 12); see N.Y. Civic Br. 28. The decades of public recreational use of this park is so clear that Respondents have little to say on the subject. NYU' s strange accusation that Petitioners "ignore" the sidewalks surrounding LaGuardia Comer Gardens seems to suggest that parkland adjacent to a sidewalk is transformed into sidewalk itself. NYU Br. 22-23. NYU also faults the Gardens for remaining open to the public "only on a limited basis depending on the season"-"[u]nlike most parks," id.- but of course, nothing could be more natural, or more suited to the particular purpose of this park, than for the Gardens to close for the harsh New York winter. Petrs. Br. 17. And the fact that the Gardens is fenced and locked in the evenings (as many parks are) (City Br. 23; NYU Br. 22) is not significant in the implied 31 dedication analysis, because otherwise that method of dedication would be foreclosed for any park that is not open every minute of every day, year round. 4. Mercer-Houston Dog Run The fourth parcel, the Mercer-Houston Dog Run (A.1:157 (photograph)), is now run by the Mercer-Houston Dog Run Association (MHDRA), a private non- profit organization, as a public dog run-a recreational use commonly found in other City parks-and before that, for many years, it was a public park used for sandlot baseball and other recreational purposes. A.2:612; 8:3134 ,-r 3 (Maddow Aff. ). Its membership is open to any dog-owning member of the public willing to pay a small annual fee (of $30 to $60 per dog) and certify that their dogs are properly vaccinated. But neither the park's management by a private organization nor its nominal annual fee precludes implied dedication. As explained in our opening brief, many parks are managed privately or charge admission fees- including, among others, the golf course this Court ruled to be protected as a park in Friends of Van Cortlandt Park, 95 N.Y.2d at 627, and the Wollman Rink in Central Park. Pet. Br. 67-68. While the City is no longer directly involved in the operation of this parcel, NYU built and agreed to operate the Dog Run in 1979 as part of an agreement with the City that allowed NYU to build Coles Gym. That agreement installed NYU in the City's shoes and charged NYU, in loco municipality, with the duty to maintain the Dog Run. Petrs. Br. 19-20 & n.5. The 32 private management of the Dog Run with the City's blessing, and nominal fees for open public access, are circumstances perfectly consistent with the parcel's status as a park. Cf Union Sq. Park Cmty. Coal., Inc. v. NYC. Dep 't of Parks & Rec., 22 N.Y.3d 648, 653-54 (2014). * * * In short, NYU and the City argue that implied dedication requires more than public use alone, but then ignore the City's active promotion of these parcels' continuous public use, just as the Appellate Division did. NYU Br. 39, 78; City Br. 46. All four parcels have long been used by the public, and that use has been resoundingly encouraged by the City through words-spoken, written, printed, and published-and deeds. NYU claims that these public declarations and actions by the City do not "resonate" as sufficient to constitute implied dedication. NYU Br. 78. But the City's resounding invitation over many years to use these parcels as · parks, coupled with the public's enthusiastic acceptance, is more than sufficient to trigger implied dedication. B. The Undisputed Evidence Of The City's Manifest Intent Overwhelms The Arcane Maps And Few Documents On Which Respondents Rely. Rather than grapple with the trial court's detailed factual findings establishing implied dedication, the Appellate Division largely ignored them. Instead, in a cursory analysis, it noted in a mere three sentences that these parcels 33 were initially mapped for potential use as "streets," the City did not formally re- map them as parks, and the Parks Department's management of the parcels was supposed to be "temporary and provisional." A.1:5 (App. Div. Op. 74). While NYU devotes significant ink to those factors (NYU Br. 76-82), it misses the fundamental point: None of those factors say anything about the intent that the City actually manifested to the public about these sites becoming parkland. 1. The City's Bid For A Categorical Exemption From Implied Dedication For Parcels Mapped As Streets Is Incompatible With This Court's Precedents. Respondents' assertion that these parcels were not, and could never be, impliedly dedicated as parks because they were mapped for potential use as "streets" five decades ago in the quickly-abandoned plan to build a Lower Manhattan Expressway is nonsensical, for the reasons previously explained. See supra, Point LB. Importantly, the "honest expectations" of the public that are protected by the implied dedication doctrine (see supra, Point I) cannot be made to hinge on a formal mapping, given that the public at large has no idea what designations appear on the official"City Map" (A.8:3141 (Stem Aff. ii 10); N.Y. Civic Br. 23), or even that such a map exists, and remains for the most part unaware of the City and State legislative enactments on which express dedication turns. Cf Capruso, 23 N.Y.3d at 641 ("[I]t would be unreasonable to expect 34 ordinary citizens who use ... parks to know whether a particular use by a municipality has received approval by the State Legislature").22 Respondents also fail to acknowledge the particular inequity that would result here ifNYU's historical objections to de-mapping and expressly re- dedicating these parcels as parks permitted it to block implied dedication now. City Br. 64-66; NYU Br. 61-62. Allowing NYU, a private institution, to impede the workings of the Public Trust Doctrine by preventing express, .formal recognition of the parcels as parks would subvert the purpose of the doctrine and circumvent the State Legislature's proper role in the process. See N.Y. Civic Br. 32-33; Legis. Br. 19; supra, Point I.C. It would also provide a convenient roadmap 22 Respondents' argument fails for the additional reason that City officials never formally opened or used the parcels as streets, and the public never used, developed, or paid for their maintenance as streets. Rather, ever since the Lomex plan was scuttled decades ago, "the public has used these sites as public parks." A.8:3192114 (Lynn Aff.); see B&Q, 273 N.Y. at 401 ("To constitute a public highway by dedication ... there must be an acceptance and a formal opening, by the proper authorities or a user."); People v. Underhill, 144 N.Y. 316, 323-26 (1895) (offer of street dedication was neither formally nor impliedly accepted, although parcel was mapped as a street on the City map, sewage and water pipes were laid, and street comer signs erected); 26 C.J.S. Dedication § 48 (2014) ("Where the streets are designated as unopened and the maps are only prognostications of the future ... there is no acceptance of a dedication."). Put another way, through the City's conduct, any street status of the parcels "cease[d]" decades ago, see City of Buffalo, 190 N.Y. at 96, and the City has since rededicated them as parks. Cf 1 lA McQuillin, Mun. Corp. § 33 :65 ("After an offer to dedicate has been revoked, or after the right to accept the offer has been terminated by lapse of time or other cause, a new offer known as a rededication can be made."). 35 for municipalities to follow to avoid application of implied dedication. Regardless of the nature or duration of a parcel's park use, an outdated, abandoned designation on a map could be used to immunize the parcel for all time against the application of the doctrine. That simply makes no sense. Indeed, any parcel impliedly dedicated as parkland would always necessarily be listed on a city map for some other use. So application of the rule NYU now urges would effectively eviscerate implied dedication. 2. Efforts To Expressly Dedicate The Parcels Confirm That They Had Been Impliedly Dedicated Years Earlier. Both NYU and the City concede that "the mere fact that a local government has not expressly dedicated property as parkland cannot also defeat implied dedication." City Br. 41; NYU Br. 83-84. Nonetheless, both Respondents insist that "the maps (and the City's repeated, public decisions not to demap )" carry talismanic significance. NYU Br. 84-85; City Br. 40-41. NYU goes so far as to pose a rhetorical question: "How else could a City (as opposed to individual departments or officials) express its unequivocal intent [other than by mapping]?" NYU Br. 85. That's an easy question to answer: time and time again, this Court has observed that a City's intent is manifested through its "acts and declarations"-not its maps. See supra, Point I. To state Respondents' theory is simply to refute it, especially here, where the formal mapping of these "phantom 36 streets" occurred more than five decades ago as part of an ill-fated highway project that was abandoned and never revived. See Scholars Br. 22-23. Contrary to what NYU and the City suggest, the acts and declarations of City officials in considering but not following through with express dedication of the four parcels actually confirm the City's intent to impliedly dedicate those parcels. Respondents ignore that the City repeatedly supported expressly dedicating the parcels as parks and only acceded to NYU's opposition because the responsible City officials determined that the parcels had already been impliedly dedicated. See City Br. 11-12; NYU Br. 82-85. NYU nowhere acknowledges (and the City barely mentions) that, in 1995, the Parks Department explained to members of the public that it was "willing to undertake" efforts to expressly remap the four parcels as parkland and to "permanently transfer[] jurisdiction" from DOT if neighboring landowners "consent[ ed]" and "waive[ d]" liability. A.6:2415-16; A.8:3259. But NYU was "unwilling to agree to or participate in [demapping]." A.8:3152; see also A.6:2417-18 (NYU letter describing its opposition to demapping).23 Parks and DOT simply concluded that NYU's strident opposition 23 A decade later, DOT voiced similar sentiment in repeatedly explaining to the public that although it "ha[ d] no plans" to limit recreational use at LaGuardia Corner Gardens, "the viability of' an attempt at express dedication was "questionable" because of concern by neighboring landowners (i.e., NYU). A.8:3239, 3243, 3244, 3245, 3246. 37 made remapping '"a fight not worth having,"' because, they believed, it '"made no practical difference whether the City Map was formally changed."' A.1 :35-36 (Trial Op. 22-23) (quoting A.8:3192 if 13 (Lynn Aff.)). "'These sites had already become dedicated parkland.'" Id. In other words, contrary to the City's contention (City Br. 43-44), its top Parks and DOT officials long understood that express dedication by a formal governmental act is wholly independent from common law implied dedication. Commissioners Stem and Lynn, the officials in charge during the critical period before NYU' s efforts to take over the four parks at issue here began (as opposed to Commissioner Benepe and Ms. Forgione, who were not in those roles at the time), affirmed that they and others at Parks and DOT long recognized that the City unequivocally manifested its intent to dedicate these parcels as parks by actively supporting and sustaining decades of continuous public recreational use. See A.8:3144-45if19(ii) (StemAff.), 8:3192if13 (LynnAff.). The City has conceded as much by requiring as part of its approval ofNYU's project that Mercer Playground and LaGuardia Park will become expressly dedicated parkland, albeit after 20 years ofNYU construction. Cf A. l :50 (Trial Op. at 37) ("One might ... conclude that NYU's longstanding opposition to repeated efforts of the community and the DPR to have the land remapped as parkland, was primarily to maintain an 38 advantage with respect to its own long-planned expansion project."); NYU Br. 19, 72-73, 85 n.25 (attempting to justify NYU's past opposition to express dedication). 3. The Internal And Arcane Documents To Which The First Department Alluded Cannot Bear The Weight Respondents Assign Them. Respondents and their amici cling to the Appellate Division's offhand and unexplained assertion that the Parks Department's "management of the parcels was understood to be temporary and provisional, pursuant to revocable permits or licenses." City Br. 41-42; NYU Br. 77; Local Gov'ts Br. 11. Their efforts to make something of this cryptic statement fail, and it certainly cannot serve as the basis for overturning the trial court's ruling on implied dedication. As an initial matter, the Appellate Division erred in lumping together all four parcels for purposes of assessing implied dedication. Cf NYU Br. 64-76 (separately cataloging evidence as to each parcel). Each of these parcels is unique, except in one respect: The City held out all four parcels for recreation for many decades, and the public formed "honest expectations," based on the City's manifested intent to dedicate the parcels as parks, that the parcels would continue to be used for recreation in the future. Hunter, 6 Hill. at 412-13. NYU and the City both recognize that the only "permit" at issue here relates to Mercer Playground. City Br. 10-12, 41-42, 51; NYU Br. 25, 73, 81. In 1995, in an internal bureaucratic communication addressing agency jurisdiction in the 39 purely hypothetical (and inconceivable) event that a downtown expressway project were somehow to be revived, the DOT granted the Parks Department a permit to "temporar[il]y use and occup[y ]"the strip containing Mercer Playground. A.6:2497. But that internal interagency document resided in the bowels of City government, and, therefore said nothing to the public about the City's manifest intent regarding this parcel. Even if it did, it would pale in comparison to the events that followed. Both NYU and the City omit any mention of the City's statement, at the public dedication ceremony for Mercer Playground in 1999 led by the Parks Commissioner, that the permit had become a nullity because Mercer Playground had been "formally transferred to Parks." A.1:31 (Trial Op. at 18); see A.8:3089- 92 (ceremony brochure).24 They also ignore the City's reiteration, on the Parks Department's webpage for Mercer Playground, that "[t]wo years [after the permit issued,] the site was formally transferred to Parks, and plans were made for capital improvements." A.8:3081. These crystal clear statements manifesting the City's intent to the public to dedicate Mercer Playground as a park are what the public 24 The City mentions only that Mercer Playground "was opened in 1999" (City Br. 21), and NYU refers to "the Playground's opening ceremony in 1999" in a dense footnote that appears 73 pages into its brief. Neither mentions the Parks Department's involvement or the City's statement that the Playground had been "formally transferred to Parks." 40 was expressly told after this permit issued, and the internal document, written prior in time, is really beside the point. 25 The only "licenses" that have been identified here relate solely to LaGuardia Comer Gardens. Covering haphazard stretches of the past three decades, those documents repeatedly explain that LaGuardia Comer Gardens "will not be needed for street or departmental purposes at this time or in the foreseeable future." A.8:3257; see also A.8:3239-46, 3249-50 (letters assuring community members that the Gardens will not be changed). Both NYU and the City conveniently gloss over these statements, as well as the fact that, since at least 1996, the Parks Department itself issued LCG' s "Green Thumb Garden License." A. 8: 3 260; see also A.8:3255-56 (MOU between Parks and LCG providing for "renew[ al] on an annual basis"). And that is how matters stood, until 2009, when DOT reappeared with a "revocable license agreement," shortly after NYU publicly announced the launch of the Sexton Plan. Although that agreement purported to give DOT 25 NYU's observation (NYU Br. 73 n.22) that the statements in the brochure and on the webpage are factually inaccurate is irrelevant. For purposes of the City's manifest intent conveyed to the public, what matters is the message the City communicated to the public. The City unequivocally manifested its intent to dedicate Mercer Playground as a park by repeatedly broadcasting to the public that the parcel had been "formally transferred to Parks" and officially become a park. See supra, Point II.A.I & n.9. The brochure and the webpage are not offered for the truth of the matter asserted, but to prove the intent that the City manifested to the public. 41 authority to shutter the Gardens for "any development project," it could not accomplish any such thing. A.6:2477-8I. As the trial court recognized, the City's belated ploy to rewrite history was futile because "a dedication once made and accepted cannot be revoked." Cook, 6I N.Y. at 453; see A.I :49 (Trial Op. at 36). Finally, NYU and the City devote many pages (City Br. I5-I6 & n.I, 28, 42, 58, 60; NYU Br. I4-I5, 22, 24, 67-68) to discussing the City's internal documentation regarding the "Greenstreets" program, which began as the brainchild of DOT Commissioner Lynn and Parks Commissioner Stem in I996 and I 997. A.8:3 I 89 (Lynn Aff.). But the City acknowledges that "Greenstreets" had no application to the four contested parcels at issue here until 2007. City Br. I 5. As the trial court appropriately recognized, it is inconsequential for implied dedication purposes whether LaGuardia Comer Gardens and LaGuardia Park actually became part of that program starting in 2007 and 2009, respectively.26 A.I :37-38, 40-4I (Trial Op. 24-25, 27-28); see Petrs. Br. I5-I6 n.2, 18 n.4. Any participation in "Greenstreets" came years after the parcels had already become 26 Petitioners disputed the City's claim that LaGuardia Park and LaGuardia Comer Gardens ever became part of the "Greenstreets" program in 2007 and 2009, A.8:3 I I9-2I (Horan Aff.), 3 I08-10 (Heam Aff.), after the Sexton Plan's launch, but the trial court found it unnecessary to reach the issue because the sites were already long dedicated as parks by then anyway. A. I :3 7, 49 (Trial Op. at 24, 36). 42 dedicated parkland. Id. Therefore, they were already shielded by the Public Trust Doctrine's protection by that time and remain so today. See Cook, 61 N.Y. at 453. C. The Additional Policy Concerns Advanced By Respondents And Their Amici Are Misplaced. NYU and the City raise the specter of "grave consequences" (NYU Br. 59; City Br. 60-61) that would result from holding the City accountable for its public words and deeds regarding these four parcels. But Respondents' hyperbolic predictions of"urban blight" (NYU Br. 58) and fenced-in, vacant lots (City Br. 61) are scare tactics untethered to reality. Many of the beautified "Greenstreets" properties about which Respondents express concern are adorned street-beds or medians between traffic lanes-hardly places for public recreation-and therefore unlikely ever to implicate the implied dedication doctrine.27 City Br. 60; NYU Br. 56-57. And the City has not spent decades enthusiastically and unequivocally inviting the public to use those spots for public recreation, as it has done here with these four parks. The City makes no effort to identify any specific parcel that might be subject to implied dedication if the Court rules for Petitioners, nor can the City or NYU point to any evidence in the record of any such parcel. If there were 27 As the Greenstreets MOU, dated August 26, 2009, states, the Parks Department and DOT "have significant experience in working together to establish Greenstreets at certain streets and roadway spaces, which are generally paved traffic islands and medians that are converted into green spaces filled with shade trees, flowering trees, shrubs, and groundcover, pursuant to a program established in 1996." A.6:2491 (emphasis added). 43 such a parcel-one used for recreational purposes for decades by the public, opened with the pomp and circumstance of an official dedication ceremony, and repeatedly declared to be a park by City officials on Parks Department signs, brochures, and websites-then the implied dedication doctrine would be implicated. 28 As the trial court recognized in rejecting Respondents' "slippery-slope" argument, implied dedication must be decided on the facts of each individual case, A. l :50 (Trial Op. 37); see also, e.g., Cook, 61 N.Y. at 454, and this is surely an extremely unusual case. It is not a case about "the planting of a few trees and installation of a few benches," as in Pearlman v. Anderson, 35 A.D.2d 544 (2d Dep't 1970)-a case on which the Respondents purport to rely, despite the trial court's express rejection of that comparison. A.l :46 (Trial Op. 46). Nor is this a case about a City agency permitting "temporary" public use of a parcel that had 28 NYU and the City claim that parks will become cluttered with signs with absurd or legalistic language if subject to implied dedication, but that is nonsensical. City Br. 61-62; NYU Br. 80. Not only are parks already replete with Parks Department signage (see A.8:3082-88, 3095, 3097-98), but there is no reason the City cannot openly express to the public in simple terms that the parcels they are using as parks are on loan from DOT, and not permanently dedicated parkland. Instead, the City has said quite the opposite in its public declarations and on its official website about these four parks. It is one thing to suggest the City should say more to clarify a site's status. It is quite another to suggest the City can convey affirmatively inaccurate information about a park's status and . not be held accountable for that. 44 actually been used as a street. It involves parcels that have never been used as streets, and that have, instead, been used for decades as parks, without any limitation or apparent expiration period. When municipal agencies truly do not intend to dedicate parcels as parks, they must simply avoid engaging in the type of public manifestations of intent that the City engaged in here (including by ostentatiously hosting a public dedication ceremony). The very essence of the implied dedication doctrine is to deter municipal officials from upsetting "honest expectations" of the public created by the officials' own conduct. Hunter, 6 Hill. at 412-13; see also Scholars Br. 17. The only way in which a ruling for Petitioners could "hamstring municipalities' flexibility" (City Br. 57) would be by limiting their ability to reap the political goodwill that flows from dedicating a parcel as a park, without shouldering the consequences of that dedication. That protected parkland could be put to a different beneficial use is beside the point. Both NYU and the City emphasize the importance of NYU's academic mission as justification for this massive expansion. City Br. 16, 19; NYU Br. 6-9, 27-34. They and their amici also suggest that parkland should be made available- temporarily or permanently-for affordable housing, education, economic development, and health care. See, e.g., NYU Br. 58-59; Local Gov'ts Br. 11-13; NY4P Br. 5-6, 9-10. Those goals, however worthy in the abstract, have nothing to do with this case or the Public Trust Doctrine. As this Court made crystal clear 45 almost a century ago: "no objects, however worthy, such as court houses and school houses, which have no connection with park purposes," are "permitted to encroach upon" a park, without the Legislature's approval. Williams, 229 N.Y. at 253. "[O]ur courts have time and again reaffirmed the principle that parkland is impressed with a public trust, requiring legislative approval before it can be alienated .... " Van Cortlandt Park, 95 N.Y.2d at 630. "[U]se for other than park purposes, either for a period of years or permanently, requires the direct and specific approval of the State Legislature, plainly conferred." Id. at 632.29 Nothing in this Court's precedents supports NYU's suggestion (NYU Br. 86-87) that this Court should issue a results-driven decision and decline to find these parcels impliedly dedicated as parkland, despite the uncontested, overwhelming evidence here that they are subject to the Public Trust Doctrine's stringent protections. To the contrary, this Court should now reaffirm that the Public Trust Doctrine protects impliedly dedicated parks, including Mercer 29 In openly urging under-enforcement of the Public Trust Doctrine, Respondents' municipal amici only underscore the gulf between their policy preferences and this Court's precedents. Compare Local Gov'ts Br. 12 (urging that land now used for park purposes should be available, among other things, for installation of a "wastewater treatment system"), with Van Cortlandt Park, 95 N.Y.2d at 632 (rejecting City use of parkland for federally-mandated water treatment plant). 46 Playground, LaGuardia Park, LaGuardia Comer Gardens, and the Mercer-Houston Dog Run, regardless of any other proposed use, public or private. III. The Proper Remedy Here Under SEQRA And The Public Trust Doctrine Is An Injunction Against Further Construction And Annulment Of The City's Approvals Of NYU's Plan. As explained in our opening brief, these parcels' protected status under the Public Trust Doctrine warrants not only an injunction against any construction until the State Legislature approves the proposed alienation, but in addition, annulment of the City's approvals ofNYU's land use applications associated with the Sexton Plan. Petrs. Br. 69-75. Respondents' contrary arguments are mistaken. First, the City's failure to recognize these parcels to be parkland was a fatal legal error in its SEQRA analysis because that status is a "relevant area[] of environmental concern" under SEQRA. Chinese Staff & Workers Ass 'n v. City of N. Y, 68 N.Y.2d 359, 363 (1986). This Court's prior decisions call for annulment of land use approvals premised on such legally-defective environmental analysis. Chinese Sta.ffheld that when an agency's environmental analysis is arbitrary and capricious, the "appropriate remedy" for the "violation of the statutory mandate imposed by SEQ RA" is annulment of land use determinations premised on the deficient analysis. Id. at 368-69. Any relief narrower than annulment would not "further ... [the] objectives" of SEQ RA or respect the "legislative direction to administer SEQRA to 'the fullest extent possible.'" Id. at 369 (quoting Tri-Cnty. 47 Taxpayers Ass'n v. Town Bd. of Queensbury, 55 N.Y.2d 41, 43, 46 (1982) (quoting E.C.L. § 8-0103(6)). That rule controls here. Even ifthe record reflects extended deliberations by local lawmakers about the challenged agency action, such deliberations cannot substitute for the environmental analysis SEQRA requires. See NYC Coal. to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337, 350 (2003). Both the City and NYU contend that this defect in the FEIS can be overlooked because the FEIS discussed the parcels as "open space." NYU Br. 89- 93; City Br. 73-74. But the distinction between generic, fungible "open space" and common-law protected parkland is deeply rooted, and such parkland can only be used for proper park purposes, absent legislative authorization. See Williams, 229 N.Y. at 253-54 (distinguishing parks from mere open space, and explaining that a proper park purpose is one that "contribute[s] to the use and enjoyment of the park" by advancing "public means of pleasure, recreation and amusement"). Williams forecloses Respondents' dismissal of the distinction between "open space" and parkland as merely rhetorical. Both NYU and the City seem to believe that decisions about parkland are susceptible to a form of cost-benefit analysis, under which a municipality can accept a years-long deprivation of park space in the hope that a net increase in available parkland will someday result. NYU Br. 28-29; City Br. 22-23. Respondents could make that argument to the State 48 Legislature in seeking alienation. But that cannot excuse the application of the Public Trust Doctrine in this case. And even if the Public Trust Doctrine error could be characterized as a "change in circumstances" (NYU Br. 93; City Br. 74), annulment and remand under Article 78 is the proper remedy, putting the question back before the agency. City approval under SEQ RA cannot be upheld unless it is the product of "thoughtful agency decisionmaking." See Riverkeeper, Inc. v. Planning Bd. of Se., 9 N.Y.3d 219, 229-30, 232, 233 n.l (2007). That was missing here. Second, contrary to Respondents' contentions (City Br. 75-76; NYU Br. 93- 96 & n.31 ), 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. See London v. Art Comm 'n of NY, 190 A.D.2d 557, 558-59 (1st Dep't 1993). After representing to the CPC and the City Council that the Sexton Plan should be understood and endorsed as an integrated whole, NYU now declares that it can proceed with construction of only the "Zipper" complex, as though the approvals of the entire plan could be dissected into approvals of individual components at NYU's whim. NYU Br. 95; City Br. 75. The City's endorsement on appeal ofNYU's new position is incompatible with land use law-not to 49 mention transparent government decision-making. A number of City Council members justified their approval of the Sexton Plan by claiming that it struck an appropriate "balance" between the private university's purported academic needs and the neighborhood's public interests. See, e.g., A.6.2291, 2297, 2316-17. A "Zipper" -only approach-furnishing NYU with "one mixed-use building with academic, retail, gymnasium, community facility and potential dormitory and/or faculty housing use"-obviously does not strike the same balance. SA.165. As a result, if any or all of the parcels at issue here are found to be protected parkland, that will so materially change the scope ofNYU's project that it will require a new City review and approval. London, 190 A.D.2d at 558-59. Respondents agree that the restrictive declaration they recorded allows for phased construction of the Sexton Plan over 20 years, beginning with the "Zipper." City Br. 75-76; NYU Br. 93-96 & n.31. The declaration incorporates the defective FEIS, so it too is inconsistent with the Public Trust Doctrine and SEQRA, whatever other conditions it may impose on construction. SA.166. That construction on a massive project proceeds in phases is a truism and does not imply that the City has pre-approved isolated segments to proceed independently of an integrated plan. Furthermore, that declaration specifies that it confers no "enforceable interest" on anyone other than NYU and the City. SA.266. If it controlled, Petitioners would be left to depend on the City to protect these parks 50 from NYU's incursions-a futile hope, as the City's position in this case makes clear. Accordingly, the only appropriate remedy here under SEQRA and the Public Trust Doctrine is to enjoin NYU's project from going forward and to require a new approval process. 51 Dated: New York, New York May 12, 2015 Respectfully submitted, By:~~~ RalldYOMastro Caitlin J. Halligan Indraneel Sur Gabriel K. Gillett Sarah Vacchiano Laura F. Corbin GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, New York 10166-0193 Telephone:(212) 351-4000 Facsimile: (212) 351-4035 RMastro@gibsondunn.com Attorneys for Petitioners- Respondents-Appellants COURT OF APPEALS OF THE STATE OF NEW YORK DEBORAH GLICK, et al., Petitioners-Respondents-Appellants, -against- ROSE HARVEY, et al., Respondents, VERONICA M. WHITE, et al., Respondents-Appellants-Respondents, and NEW YORK UNIVERSITY, Necessary Third-Party Appellant-Respondent. STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) New York Court of Appeals No. APL-2015-00053 New York County Clerk's Index No. 103844/12 AFFIDAVIT OF SERVICE ANGELS. ARIAS, being duly sworn, deposes and says: 1. I am not a party to this action, am over 18 years of age, and reside in Richmond Hill, New York. 2. On May 13, 2015, I personally served three (3) copies of the APPELLANTS' REPLY BRIEF in this appeal on the parties by delivering true copies of the above mentioned pleadings, via hand delivery, to the addresses listed below and designated by the parties for that purpose. CORPORATION COUNSEL OF THE CITY OF NEW YORK Zachary W. Carter 100 Church Street New York, New York 10007 Attorney for the City Respondents-Appellants- Respondents COOLEYLLP Alan Levine Celia Goldwag Barenholtz Genevieve G. York-Erwin Michael Blasie 1114 A venue of the Americas New York, New York 10036 Attorneys for Necessary Third-Party Appellant- Respondent Sworn to before me on this 13th day ofMay, 2015 ~~~ Notary Public 1 NILHAN GEZGIN .Notary Public, State of New York No. 01GE6229706 Quallfted In Queens County c,. -GeAifiee~e flillla"1 iR ~ .... YOik eottMy-' N commission Explreseetobe1 18, 20_ ~ Deluvii'Je:r-