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, 2015Reproduced on Recycled Paper To be argued by MICHAEL J. PASTOR (15 Minutes) COURT OF APPEALS STATE OF NEW YORK DEBORAH GLICK, et al., Petitioners-Respondents-Appellants, For Judgment Pursuant to CPLR Article 78, -against- ROSE HARVEY, et al., Respondents, VERONICA M. WHITE, et al., Respondents-Appellants-Respondents, -and- NEW YORK UNIVERSITY, As a Necessary Third Party, Third-Party Appellant-Respondent. BRIEF FOR THE NEW YORK CITY RESPONDENTS ZACHARY W. CARTER Corporation Counsel of the City of New York RICHARD DEARING Attorney for the City Respondents CHRIS REO 100 Church Street ELIZABETH HARRIS New York, New York 10007 MICHAEL J. PASTOR (212) 356-0838 or -2500 Of Counsel mpastor@law.nyc.gov May 6, 2015 -i- TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................................................... iv PRELIMINARY STATEMENT .................................................................. 1 QUESTIONS PRESENTED....................................................................... 5 STATEMENT OF THE CASE ................................................................... 6 A. The Street Strips ............................................................................... 6 1. By Resolution of the Board of Estimate, the City Mapped the Strips as Streets and Later Acquired Them for “Street Purposes” ......................................... 6 2. The Plan is Upheld in Court ........................................................ 8 3. The Board of Estimate Refuses to Act on a Request to Transfer the Mercer Street Strips to the Parks Department ................................................. 9 4. City Officials Expressly Decline Requests Made in the 1990’s to De-Map the Streets and Permanently Dedicate Them as Parkland ..................................................................................... 10 5. The City Consistently Declines Requests to Dedicate the South LaGuardia Strip as Parkland ..................................................................................... 13 6. In 2007, the Parks Department and DOT Enter into a Memorandum of Understanding Concerning the “Greenstreets” Program .................................. 15 B. The Approval of NYU’s Core Project and its Relation to the Street Strips ..................................................... 16 1. The Core Project was Approved after a Public Review Process During Which the City Planning Commission Reduced the Overall Size of the Project ......................................................... 17 -ii- 2. The City Council Reviews the Plan, Requires Further Reductions in Building Size, and Approves it by a Vote of 44-1 .................................................... 20 3. The Approval’s Relationship to the Street Strips, Two of Which Will be Dedicated as Parkland ..................................................................................... 21 (i.) North LaGuardia and North Mercer Strips ................................................................................. 21 (ii.) South LaGuardia Strip ..................................................... 23 (iii.) South Mercer Strip .......................................................... 24 C. The Parks Department’s Temporary Management or Beautification of Parcels Owned by Other City Agencies such as DOT ................................................................................... 25 D. Procedural History of this Article 78 Proceeding ...................................................................................... 29 1. The Supreme Court Finds Three of the Street Strips to be Parkland by Implied Dedication .................................................................................. 29 2. The First Department Reverses and Finds that None of the Parcels Has Become Parkland by Implication ............................................................ 31 ARGUMENT ............................................................................................. 32 POINT I ..................................................................................................... 32 THE RECORD DOES NOT SUPPORT PETITIONERS’ CLAIM THAT THE CITY INTENDED TO DEDICATE THE STREET STRIPS PERMANENTLY AS PARKLAND -iii- A. Implied Dedication Occurs Only Where a Local Government’s Acts and Declarations Demonstrate an Unequivocal Intention to Permanently Dedicate Its Property as Parkland ................................................. 33 B. The Record Establishes Conclusively that the City had No Intent to Dedicate These Street Strips as Parkland..................................................... 37 C. Petitioners’ Near Exclusive Reliance on the Public’s Use of the Property for Park-like Purposes Ignores the Centrality of the City’s Intent and Disregards the Context in Which That Use Occurred ................................................................................... 46 D. Petitioners Improperly Conflate the Question Whether the Local Government Intended to Dedicate the Property with the Separate Question Whether the Public Has Accepted an Intended Dedication ........................................................................ 52 1. Cases Discussing Alleged Acceptance of a Dedication Have No Bearing Here ........................................... 52 2. Petitioners’ Reliance on Estoppel Principles Further Shows How Far Afield They Must Strain ......................................................................................... 55 E. Finding Dedication on These Facts Would Greatly Impair Local Governments’ Flexibility to Allow Temporary Use of Non-Park Properties for Public Enjoyment ....................................................................... 57 -iv- POINT II ................................................................................................... 63 THE PETITION FAILS FOR THE INDEPENDENT REASON THAT PARCELS MAPPED AND ACQUIRED AS STREETS CANNOT BE REDEDICATED FOR OTHER PURPOSES BY IMPLICATION POINT III .................................................................................................. 70 PETITIONERS’ OVERBROAD REMEDIAL REQUEST UNDERSCORES THAT THEIR CONCEPTION OF MUNICIPAL OPEN SPACES IS FORMALISTIC AND RESULT-DRIVEN CONCLUSION ......................................................................................... 78 -v- TABLE OF AUTHORITIES CASES Ackerman v. Steisel, 104 A.D.2d 940 (2d Dep't 1981), aff’d, 66 N.Y.2d 833 (1985) ............. 35 Angiolillo v. Town of Greenburgh, 290 A.D.2d 1 (2d Dep't 2001) ............................................................... 39 Baker v. Village of Elmsford, 70 A.D.3d 181 (2d Dep’t 2009) ............................................................. 64 Bond v. Turner, 78 A.D.3d 1490 (4th Dep't 2010) ......................................................... 36 C/S 12th Ave. LLC v. City of New York, 32 A.D.3d 1 (1st Dep't 2006) ................................................................ 75 Chatham Green, Inc. v. Bloomberg, 1 Misc.3d 434 (N.Y. Sup. Ct. N.Y. County 2003) ................................ 74 City of Buffalo v. Del. Lackawanna & W.R.R. Co., 190 N.Y. 84 (1907) ................................................................................ 68 City of Fort Payne v. Fort Payne Athletic Assoc., 567 So. 2d 1260 (Ala. 1990) ................................................................. 36 Cook v. Harris, 61 N.Y. 448 (1875) .................................................................... 33, 34, 45 Douglaston & Little Neck Coalition v. Sexton, 145 A.D.2d 480 (2d Dep't 1988) ........................................................... 38 E & J Holding Corp. v. Noto, 126 A.D.2d 641 (2d Dep't 1987) ........................................................... 65 -vi- Flack v. Village of Green Island, 122 N.Y. 107 (1890) .............................................................................. 54 Gerwitz v. City of Long Beach, 69 Misc.2d 763 (N.Y. Sup. Ct., Nassau County 1972), aff’d, 45 A.D.2d 841 (2d Dep’t 1974), appeal denied, 45 A.D.2d 841 (1974) .................................................. 37 H.A. Maddox v. Maxwell, 369 S.W.2d 343 (Tex. 1963) ................................................................. 36 Holdane v. Trustees of the Village of Cold Spring, 21 N.Y. 474 (1860) .................................................................... 34, 38, 47 Hotel Emps. & Rest. Emps. Union, Local 100 of N.Y. v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, (2d Cir. 2002) ................................................................. 59 Hunter v. Trustees of Sandy Hill, 6 Hill. 407 (N.Y. 1844) ......................................................................... 34 Jackson v. Bd. of Comm. of the Cty. of Monroe, 916 N.E.2d 696 (Ct. App. Ind. 2009) ..................................................... 72 Jacobs v. City of New York, 54 Misc.2d 46 (N.Y. Sup. Ct. N.Y. Cty. 1966), aff’d,28 A.D.2d 668 (1st Dep't 1967) ......................................... 8, 67, 69 Klug v. Jeffers, 88 A.D. 246 (3d Dep’t 1905) ................................................................ 36 Lazore v. Bd. of Trustees of Vill. of Massena, 191 A.D.2d 764 (3d Dep't 1993) ........................................................... 38 Lewis v. Portland, 25 Ore. 133 (1895) ..................................................... 36 London v. Art. Comm’n of N.Y., 190 A.D.2d 557 (1st Dep’t 1993) .......................................................... 76 -vii- New York City Council v. City of N.Y., 4 A.D.3d 85 (1st Dep't 2004) ................................................................ 66 Matter of City of N.Y., 239 N.Y. 119 (1924) ............................................................................. 35 Matter of Green Cty. Dep’t of Soc. Svs. v. Ward, 8 N.Y.3d 1007 (2007) ............................................................................ 56 Northglenn v. Thornton, 193 Colo. 536 (1977) ............................................................................ 36 Pearlman v. Anderson, 62 Misc. 2d 24 (N.Y. Sup. Ct. Nassau Co. 1970), aff'd, 35 A.D.2d 544 (2d Dep't 1970) .................................................................. 59 People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394 (1937) ........................................................................ 54, 59 People v. Loehfelm, 102 N.Y. 1 (1895) .................................................................................. 53 Pless v. Town of Royalton, 81 N.Y2d 1047 (1993) ........................................................................... 56 Powell v. City of New York, 85 A.D.3d 429 (1st Dep’t 2011) ................................................ 36, 38, 59 Riverview Partners L.P. v. City of Peekskill, 273 A.D.2d 455 (2d Dep't 2000) ......................................... 36, 39, 45, 47 Stahl Soap Corporation v. City of New York, 5 N.Y.2d 203 (1959) .............................................................................. 65 Ventres v. Town of Farmington, 192 Conn. 663 (1984) ........................................................................... 36 -viii- Village of Clayton v, Colorado & S. Ry. Co., 30 N.M. 280 (1924) .............................................................................. 36 Village of Croton-on-Hudson v. County of Westchester, 28 A.D.2d 979 (2d Dep't), aff'd, 30 N.Y.2d 959 (1972) ........... 38, 39, 45 STATUTES Administrative Code § 5-430 .................................................................... 65 Administrative Code § 5-432 .................................................................... 65 Administrative Code § 5-433 .................................................................... 65 Administrative Code § 1-112(13) ............................................................. 49 General City Law § 20 .............................................................................. 64 General City Law § 29 .............................................................................. 65 N.Y. City Charter § 197-c ......................................................................... 66 MISCELLANEOUS 6 N.Y.C.R.R. § 617.9(b)(5)(v) .............................................................. 73, 74 1 PRELIMINARY STATEMENT Contrary to petitioners’ suggestions, the future of New York’s public trust doctrine is not at all at risk in this case. That doctrine has long held that where a local government has dedicated its property as parkland—which is most commonly done through formal, express steps, but sometimes done through other governmental acts that unmistakably imply an intent to dedicate—the local government may not thereafter alienate the property or convert it to non-park purposes without the State Legislature’s specific approval. Around 1700 dedicated city parks in New York City, and numerous others throughout the State, are indisputably subject to the superintendence of the State Legislature under the doctrine. The public trust doctrine is thus robust in this State, and no one here claims it should be otherwise. This case is really about petitioners’ attempt to turn the public trust doctrine into something it has never been, was never meant to be, and should not become—a device to compel a permanent “dedication” of municipal property as parkland, and thus to restrict municipal use of the property, where the City did not intend any such dedication. Petitioners adopt this strategy to try to 2 nullify the approval by the New York City Council, after a public review process, of land-use actions tied to New York University’s proposal to construct new buildings and open spaces on its property near its Manhattan campus. The Appellate Division correctly dismissed the petition upon finding that four City-owned street parcels at issue were never impliedly dedicated by the City as parkland (Appendix [“A.”] 4-5). Petitioners’ contentions to the contrary are unsupportable as a matter of both precedent and policy. This Court has made clear that a high bar must be cleared before a municipal landowner will be deemed to have impliedly dedicated its land as parkland and thereby accepted permanent restrictions on use of its property. Precedent for over a century has held that an implied dedication will be found only where unequivocal acts and declarations of the local government demonstrate a positive, unmistakable intent to permanently dedicate the property. The Appellate Division correctly held that no such unequivocal intent to dedicate has been shown here. The street strips at issue were not acquired for park purposes, but rather for use as public streets, and the parcels have never been mapped as parkland. Local officials refused multiple requests to dedicate the strips as parkland; the strips have 3 always remained in the permanent portfolio of the City’s Department of Transportation; and public use of parts of the strips for certain park- like purposes has occurred pursuant to permits and licenses that were expressly framed as temporary and revocable. Petitioners ask the Court to ignore all of this evidence, and to hold that the public’s use of parts of the property for park-like purposes, by itself, resulted in a permanent dedication that the City never intended. But while evidence of public use may sometimes be relevant, along with other evidence, in confirming that a local government intended to dedicate property as parkland, it cannot effect an implied dedication where such intent is lacking. Because the public’s use of the property here occurred pursuant to arrangements that were expressly made temporary and revocable, it does not show that the City intended any permanent dedication of the property as parkland. Petitioners’ arguments cannot be squared with the necessary focus on the intent of the municipality, rather than the perceptions of the public. Even more clearly, petitioners’ arguments fail to acknowledge the established requirement that an unequivocal intent to dedicate 4 must be shown before a local government’s use of its property will be restricted—something that cannot not be shown on this record. Petitioners’ contentions not only contravene precedent, but, if upheld, would be deeply harmful to the public interest. Local governments commonly open underutilized parcels for public use and enjoyment on a provisional basis, while intending to keep those municipal properties available for other uses as needed in the future. Indeed, in New York City alone, over 2000 municipal properties that are not dedicated parkland are currently managed or beautified on a temporary basis by the City’s Parks Department. If those steps meant that the properties may be deemed to have been permanently dedicated as parkland, New York City agencies, and local governments throughout the State, could be compelled to cease such arrangements, and numerous green spaces and community gardens may be discontinued or never created. Fortunately, petitioners’ proposed rule has no basis in, and is indeed contrary to, the implied dedication doctrine established by this Court and the State’s lower courts for well over 150 years. The First 5 Department correctly rejected petitioner’s unfounded theory, and this Court should affirm. QUESTIONS PRESENTED 1. Did the Appellate Division correctly hold that the City never manifested an unequivocal intent to permanently dedicate the street strips as parkland and that, to the contrary, City officials demonstrated through acts and declarations a consistent intent that the parcels retain their status as streets? 2. Can the Appellate Division’s order also be affirmed for the additional reason that mapped street parcels such as those at issue here, which like parks are impressed with a trust for the benefit of the public, cannot be closed and de-mapped by implication, but rather may only be closed and de-mapped by express legislative act? 3. If petitioners’ claims had any merit, would their proposed remedy of invalidating the entire NYU project, including aspects that do not involve the street strips, be overbroad and unjustified, where (a) the City completed a full and appropriate environmental review, and (b) the project could be adjusted is necessary to account for any ruling that the street strips are dedicated parkland? 6 STATEMENT OF THE CASE A. The Street Strips Petitioners claim that four strips of land that are part of or will be affected by the approved NYU Core Project (“Core Project”) have been dedicated as parkland. They are: (1) the playground on the western sidewalk of Mercer Street between Bleecker Street and West 3rd Street (“North Mercer Strip”); (2) a portion of Mercer Street between Bleecker Street and West Houston Street that contains a privately-maintained dog run; (“South Mercer Strip”); (3) unspecified portions of the eastern sidewalk of LaGuardia Place between Bleecker Street and West 3rd Street (“North LaGuardia Strip”); and (4) a portion of the eastern sidewalk of LaGuardia Place between West Houston Street and Bleecker Street (“South LaGuardia Place Strip”). The history of the legal status of these street strips is as follows. 1. By Resolution of the Board of Estimate, the City Mapped the Strips as Streets and Later Acquired Them for “Street Purposes” In 1954, the City undertook the Washington Square Southeast Urban Renewal Plan (A.2503, Supplemental Appendix [“SA.”] 460, 467). The plan entailed redeveloping the area to the southeast of Washington 7 Square Park by converting nine blocks (bounded by West 4th Street, Mercer Street, West Houston Street, and West Broadway (now LaGuardia Place)) into three “superblocks” (id.). The plan called for acquiring the entire area by eminent domain, de-mapping two interior streets, and disposing or developing the superblocks for educational, residential and commercial uses. The plan was approved by the City Planning Commission on December 9, 1953 and, shortly thereafter, by the New York City Board of Estimate, the body that had certain legislative powers before it was abolished pursuant to a revision of the City Charter in 1990 (id.). The plan authorized the widening of the remaining streets to meet anticipated future traffic needs and to accommodate a plan to widen 5th Avenue south of Washington Square Park (A.2504; SA.467). This widening of mapped street on the City Map with respect to the westerly side of Mercer Street and the easterly side of LaGuardia Place included the four street strips at issue in this appeal (id.). In 1956, the City Planning Commission adopted an alteration to the City Map detailing the mapping actions that had been approved, including the widening of Mercer Street and what is now LaGuardia 8 Place (A.2504). The Board of Estimate then deemed the changes to be in the public interest and approved the modifications to the City Map (A.2504, A.2350, A.3129). As part of the approval process, the City retained the right to acquire the strips from the property owner. In late 1967 and early 1968, the street strips were granted to the City. The grants, which took the form of deeds of cessation, referenced the prior public approvals and granted the premises to the City of New York “in trust for street purposes” (A.2345, A.2350, A.3129). 2. The Plan is Upheld in Court Noted Greenwich Village activist Jane Jacobs and other individuals sued the City seeking to enjoin implementation of the plan. Jacobs v. City of New York, 54 Misc.2d 46 (N.Y. Sup. Ct. N.Y. Cty. 1966), aff’d, 28 A.D.2d 668 (1st Dep’t 1967). They claimed that the City was not authorized to widen the street strips. They further argued that the City should convert the street that is now LaGuardia Place, between Washington Square Park and West Houston, into a “greenway” or a “sort of Champs Elysees of Lower Manhattan.” Jacobs, 54 Misc.2d at 48. 9 The Supreme Court, New York County, dismissed the claim, finding the plan “eminently proper, practical and legal.” The Court found that the action taken by the Board of Estimate in modifying the City map was “legislative in nature.” Id. at 50. The Court noted that even though the plaintiffs were “sincere in their belief that their own choice for the parcel is a proper one, [they] may not legally requisition the courts to interfere in favor of their own proposals over equally proper public use plans of the Planning Commissioner and the Board of Estimate.” Id. The Supreme Court’s holding, including its finding that these land-use actions of the Board of Estimate were legislative in nature, was affirmed by the First Department on the opinion of the Supreme Court. Jacobs, 28 A.D.2d at 668. 3. The Board of Estimate Refuses to Act on a Request to Transfer the Mercer Street Strips to the Parks Department Around the same time as the Jacobs litigation in 1967, Manhattan Borough President Percy E. Sutton requested that the Board of Estimate approve the assignment of three Mercer Street Strips from West Houston Street to West 4th Street from the City Department of Highways to the Parks Department for use as “landscaped park and 10 sidewalk area[s]” (A.2506; SA.475-477). The Board of Estimate took no action on the request. Over a decade later, in a report concerning an amendment to the original plan adopted in 1954, the City Planning Commission acknowledged that the Board never acted on the request in 1967 to assign jurisdiction to the Parks Department (A.2507; SA.478). 4. City Officials Expressly Decline Requests Made in the 1990s to De-Map the Streets and Permanently Dedicate Them as Parkland In 1995, Community Board No. 2 informed the Commissioners at DOT and the Parks Department that it had adopted a resolution seeking to have the street strips transferred to the Parks Department from DOT (SA.484). The resolution requested that jurisdiction of the street strips be transferred to the Parks Department because it “would have the effect of permanently guaranteeing these strips as parkland” (id.). Petitioners Glick and the head of the Washington Square Village Tenants Association, along with other elected officials, were copied on this request to have the plots dedicated as parkland (id.). Less than a month later, and before any action was taken on the community board’s request, then-DOT Commissioner Elliot Sander granted a revocable permit to the Parks Department for its “temporary 11 use and occupation” of the Mercer Street Strip (A.2497). The letter ended: “It is expressly understood that in the event that DOT requires the occupied property in order to perform capital construction work, [the Parks Department] shall vacate it and return it to DOT so that such work can take place” (id.). It instructed then-Parks Commissioner Henry Stern to sign if he “agreed and accepted”; Stern signed the line indicating his agreement and acceptance of the terms in the letter (id.). Notably, the Community Board’s request a few weeks earlier to have the Mercer Strip permanently dedicated as parkland had been addressed personally to Mr. Stern, in addition to Mr. Sander, the two signatories of this temporary and revocable permit granted by DOT to Parks (SA.484). The following month, the Deputy Commissioner for Operations at the Parks Department addressed the community board’s request to convert the strips from streets to parks. He explained that “permanently transferring” the parcels and de-mapping the streets would have to go through the City’s Uniform Land Use Review Procedure (“ULURP”), a land use process that requires concurrence by the City Planning Commission and City Council (A.2415-A.2416). He 12 stated that the agency was willing to work with DOT to obtain the necessary approval, but it first wanted the consent of neighboring owners (id.). The Parks Department also sent a letter to petitioner Washington Square Village Tenants’ Association, explaining that de- mapping would require public hearings and approval pursuant to ULURP (A.2416). Thereafter, adjacent landowner NYU told the Commissioners at DOT and Parks Department that it supported the current use of the strips, that it was assisting in maintenance and construction at the site, and that it supported granting the Parks Department a permit to manage the parcels; however, NYU argued that de-mapping of the streets was not necessary to create the playground (A.2417-A.2418). The General Counsel of the Parks Department responded to NYU by letter on August 9, 1996, in which he noted that the Parks Department had obtained the temporary permit for the planned playground on the North Mercer Strip, but that the agency “did not intend to seek” the de-mapping of the street (A.2419). Meanwhile, earlier the same year, petitioner Friends of LaGuardia Place wrote a letter to the Parks Department noting that 13 the group had raised funds to install a statue of Fiorello LaGuardia and wanted the North LaGuardia Strip transferred from DOT to the Parks Department (SA.483). In their petition here, petitioners concede that the North LaGuardia Strip and the other street strips remained and remain mapped streets under DOT jurisdiction (A.115-A.116). 5. The City Consistently Declines Requests to Dedicate the South LaGuardia Strip as Parkland Efforts by groups and individuals to have the strips mapped as parkland did not cease, but were no more effective than those undertaken in the 1990s. In 2006, members of the public and petitioner LaGuardia Corner Gardens, which has used the South LaGuardia Strip pursuant to written license and lease agreements with the City since its inception and is not generally open to the public, requested that Mayor Michael R. Bloomberg support a transfer of the garden to the Parks Department. Then-DOT Commissioner Iris Weinshall responded to the petitions (A.3239): “DOT has no plans at the present time to change the current usage of this portion of the street or permanently transfer the garden to the [Parks Department]. The permanent transfer of this property would require that it first be mapped as parkland under 14 [ULURP] . . . . In this specific case, the viability of such an application is questionable because such a change to the City map would eliminate the legal frontage on the east side of LaGuardia Place.” A similar letter was sent by Assistant DOT Commissioner Jay Jaber in response to other such inquiries (A.3240-A.3246). Recipients of the letter included the Chair of LaGuardia Corner Gardens, a petitioner in this litigation (A.3242). In 2007, DOT responded to another request by stating that DOT has “no plans at the present time to change the current usage of this portion of the street or to transfer it to the [Parks Department]” (A.3249). A member of the public wrote Mayor Bloomberg again in 2008 noting concerns about the gardens because the parcel had “no protective classification” (i.e., as parkland) (SA.489). DOT responded to this request by repeating that the area is mapped street but that the City has “no plans at present time to change the current usage of the property” (A.3250). As recently as August 2010, several petitioners and others wrote the City asking that it remap the land from roadbed to park in order for them to be “permanently protected parkland” (A.2493-A.2494). The 15 letter acknowledged that the strips were mapped as “roadbed.” The City did not act on this request. 6. In 2007, the Parks Department and DOT Enter into a Memorandum of Understanding Concerning the “Greenstreets” Program In 2007, DOT and the Parks entered into a 10-year memorandum- of-understanding working to create “greenstreets” on certain street and roadbed spaces (A.2421), under the City’s Greenstreets program for beautifying street spaces that had begun more than a decade earlier. The purpose of the Greenstreets program is to take paved traffic islands or other DOT spaces and fill them with “shade trees, flowering trees, shrubs, and groundcover.” While the Parks Department administers the plots under the program, the MOU expressly states: “[The Parks Department] and DOT acknowledge that the Sites are temporary and will always remain as DOT jurisdictional properties, available for DOT purposes and uses as needed. [The Parks Department] and DOT acknowledge that the Sites are not intended to be formal or implied dedicated parklands” (id.). The South LaGuardia Strip, inclusive of LaGuardia Corner Gardens, was listed as included in the program in exhibit to the 2007 16 MOU (A.2444). In 2009, the North LaGuardia Strip was added to the Greenstreets program (A.2492).1 B. The Approval of NYU’s Core Project and its Relation to the Street Strips The NYU Core Project concerns the two NYU-owned “superblocks” in Greenwich Village, bounded by West 3rd Street to the north, Mercer Street to the east, West Houston Street to the south, and LaGuardia Place to the west (A.2526-A.2530). Bleecker Street divides the superblocks into a northern block (“North Block”) and southern block (“South Block”) (id.). The land-use actions related to the NYU Core Project, as approved by the City Planning Commission and the New York City Council, will allow for the construction of four new buildings and below grade space on the superblocks (A.2530). The buildings will house academic space, student housing, faculty housing, an athletic center, and a small amount of retail (id.). 1 Petitioners claim there was a factual dispute as to whether these two strips were included in the program (Pet. Br., at 15-18, n. 2, 4). However, the affidavits they cite say nothing more than that a member of the public may not have believed that the parcels were part of the Greenstreet program. But the documentary evidence demonstrates that the City included these two DOT parcels in the program, subject to the provisions of the MOU. 17 1. The Core Project Was Approved after a Public Review Process During Which the City Planning Commission Reduced the Overall Size of the Project After NYU submitted its application for the land-use actions necessary to carry out the Core Project, it was reviewed by Community Board No. 2, which recommended disapproval of the application (A2549). The board held over 23 public meetings on the application, including a public hearing at the beginning and end of its review (id.). In recommending disapproval, the board criticized the inclusion of a hotel in the plan and the heights of the new buildings (A.1048, A.2549). The Manhattan Borough President also reviewed the application and recommended conditional approval of the plan, with recommendations to reduce the size of the new buildings NYU planned to build and the implementation of protocols to reduce the construction impact on local residents (A.1076, A.2550). The CPC held its public hearing on April 25, 2012. The hearing lasted ten hours, and 115 people spoke in support of, and opposition to, the project (A.2555). These included community members, representatives from NYU, the Community Board No. 2, the Borough President’s office, as well as NYU faculty and students (id.). During the 18 hearing, members of the CPC asked numerous questions, and also requested that NYU submit further information for consideration by CPC (A.2556). On May 4, 2012, NYU submitted several memoranda responding to CPC’s information requests (id.). On May 7, 2012, CPC held a public post-hearing follow-up at their next scheduled Review Session, at which many of the concerns of Community Board 2 and the Borough President were discussed, including eliminating the temporary gym on the North Block and removing the hotel from the Zipper Building (id.). CPC also requested further information from NYU on the need for new faculty housing within the Core Project (id.). NYU filed responses to these requests on May 11, 2012, May 15, 2012 and May 18, 2012 (A.2557). CPC held a second public post-hearing follow-up on May 21, 2012, during which it again discussed many of the issues raised by the Community Board, the Manhattan Borough President, and other individuals (A.2558). Among other recommendations, City Planning staff recommended reducing the height of certain of the buildings (A.2558-A.2559). 19 The land-use actions necessary to carry out the Core Project were approved, as modified, by the CPC at a public hearing on June 6, 2012. CPC Chair Amanda Burden explained at the hearing that NYU had a “strong case for its academic programming needs including classrooms and study space, dormitory space, faculty housing and faculty offices” (A.2559-A.2564). However, CPC’s approval eliminated several non- academic parts of the plan: the hotel, the temporary gym, and the proposed rezoning of six blocks north of the superblocks (id.). CPC also reduced the height of two of the proposed buildings and created an oversight committee for the open space areas (id.). NYU filed amended plans reflecting the CPC modifications (id.). NYU also then executed the Restrictive Declaration, a covenant that runs with the land and that requires, among other things, that NYU institute detailed environmental mitigation and other protective measures during the construction and operation phases (SA.159). The Restrictive Declaration sets forth detailed timeframes, pursuant to which construction shall occur, including implementation of a progressive, building-by-building phased plan designed to limit construction disturbance (SA.235-SA.253). The City can 20 administratively enforcement non-compliance with the declaration or otherwise seek to compel compliance with it by injunctive relief (SA.263-SA.269). 2. The City Council Reviews the Plan, Requires Further Reductions in Building Size, and Approves it by a Vote of 44-1 The City Council Land Use Committee’s Subcommittee on Zoning and Franchises, upon public notice, held a hearing on the land-use actions necessary to carry out the Core Project, as modified by the CPC, on June 29, 2012 (A2565). The hearing lasted nine hours, with 78 speakers speaking in opposition to the proposal, and 45 speaking in favor of it (id.). Councilmember Margaret Chin, whose district includes the Core Project, advocated for additional modifications to address community concerns (id.). NYU’s President John Sexton addressed these concerns by letter dated July 16, 2012 (SA.486). The Subcommittee, in turn, recommended several reductions and modifications to the size and uses of the proposed buildings (A.2568) to the Land Use Committee. The maximum density of the project, as ultimately modified and approved by the Land Use Committee, was reduced by approximately 20% during the ULURP process (A.2532). 21 On June 25, 2012, by a vote of 44 in the affirmative and 1 in the negative, the City Council approved four separate resolutions approving the CPC decisions with respect to the plan, with the modifications proposed by the Land Use Committee (A.2570). The resolutions were filed with the Mayor, who had five days under the City Charter to object; he made no objection (id.). 3. The Approval’s Relationship to the Street Strips, Two of Which Will Ultimately Become Dedicated as Parkland as Part of the Project (i.) North LaGuardia and North Mercer Strips The North LaGuardia Strip currently consists of paved walkways, landscaped with trees that allow pedestrians access to nearby retail stores (A.3311-A.3312). It also contains a privately funded statue of Fiorello LaGuardia (id.). At the northern part of the strip, petitioner Friends of LaGuardia Place recently coordinated with NYU and City officials to create “Adrienne’s Garden,” which was not completed until 2013, and is the only area in the North LaGuardia Strip with seating areas or areas for recreation. The North Mercer Strip contains a playground, which was opened in 1999 (A.3222), after being constructed pursuant to the revocable 22 permit first issued by DOT to the Parks Department in 1995 for Parks’ temporary use and occupation of the area in question. The area, which is almost entirely paved, is designed for use by teens on bicycles and skateboards, as well as pedestrians passing through (A.3314). As part of the City Council’s approval of NYU’s application in 2012, as modified, two of the four strips, the North LaGuardia and North Mercer Strips, were approved for de-mapping as streets; and the strips were approved for later dedication as parkland, subject to easements approved for disposition to NYU allowing for construction of the adjacent buildings and access and utilities (A.2510). When the construction of the North Block buildings are completed, NYU will be obligated to improve and maintain these adjacent parklands, pursuant to the terms of the Restrictive Declaration (id.). These new parks will provide many uses. The parkland mapped along LaGuardia Place will include the LaGuardia Play Garden, which will provide active recreation for various age groups, and the LaGuardia Entry Plaza, which will provide seating and a wide path providing the public access to the NYU-owned publicly accessible open space in the center of the block (id.). The Mercer Street side will include the Tricycle 23 Garden, which will provide small-scale active and passive activities for younger children, and the Mercer Street Entry Plaza, which, like the LaGuardia Entry Plaza, will provide seating and a wide path to encourage passage into and through the center of the block (id.). (ii) South LaGuardia Strip Paved walkways currently run north-south along each side of the South LaGuardia Strip (A.3312). An enclosed planting area called the Time Landscape sits at the south end of the strip (id.). At the north end of the strip is LaGuardia Corner Gardens, a gated and locked community garden with limited public access that is part of the City’s GreenThumb program (A.3313). This community garden was the only portion of the South LaGuardia Strip that was before the Supreme Court and the Appellate Division on the public trust issue. As with the North Mercer Strip and the North LaGuardia Strip, the South LaGuardia Strip is mapped street, including the area comprising the LaGuardia Corner Gardens. The garden is within DOT’s jurisdiction, and the City first issued licenses or lease agreements at its inception in 1981 (A.3251, et seq.). These agreements variously specify 24 that the permission to use the plot is temporary, revocable and terminable (e.g., A.2421, A.3256, A.3257, A.3268).2 The South LaGuardia Strip is not part of the Core Project (A.2511). The Final Environmental Impact Statement included discussion of the strip because it is adjacent to elements being built as part of the Core Project and would be affected during construction as well as by shadows that will result from a building being constructed as part of the project (A.307-A.311, A.533). (iii) South Mercer Strip The South Mercer Strip has never been subject to any Parks Department management or approval of any kind. It has a dog-run that is gated, locked, and run by a private association that charges a yearly membership fee and limits access to members (A.2054, A.3312, A.3320). The rest of the strip is paved walkway for pedestrians, including an area where students can enter NYU’s Coles Gymnasium. 2 Although there are some gaps in the record with respect to licenses to the garden, petitioners are incorrect in saying (Pet. Br., at 18, n.3) that there were no licenses after 2009. The 2009 license, which was terminable at will by DOT, ran from January 7, 2009 through January 6, 2011 (A.2477). The licensee who signed the license, Ms. Janice Pargh, had been informed by DOT just two years prior that the plot was mapped street and the City had no plans to transfer the garden to the jurisdiction of the Parks Department (A.3249). 25 The Core Project, as approved, will create a new dog run and a toddler playground (A.2544). The South Mercer Strip will be the site of the Zipper Building, which will house academic spaces, a supermarket, dormitories, and faculty housing (A.2542). The size of the building was reduced during the approval process, including a reduction of the height of the building facing Bleecker Street almost in half, from 168 to 85 feet (id.). The project approvals will also result in an expanded north-south pedestrian walkway (A.2544). Overall, the approval requires the creation of around four acres of open space and parkland, some of which will be on the street strips and some of which will be on NYU’s campus, as reconfigured (A.694-A.695, A.2520). C. The Parks Department’s Temporary Management or Beautification of Parcels Owned by Other City Agencies such as DOT. The Parks Department’s temporary management and oversight of the Mercer Playground, while the area remains in DOT’s property portfolio, is not unusual, but rather illustrates the wide diversity of municipal public spaces that exist in New York City. All told, the Parks Department maintains, oversees, and enhances over 4,000 properties 26 for the enjoyment of the public (A.2501). Around 1,700 of those properties are dedicated as parkland (id.). The remainder – more than 2,000 properties – remain in the jurisdiction of other City agencies but are temporarily managed by the Parks Department (A.2502). The remarkable density of New York City means both that the temporary use of open municipal spaces for public enjoyment and recreation is extremely valuable, and that it is imperative that the City retain the ability to use those open spaces for other purposes in the future, as necessary. These temporary arrangements allow the Parks Department to provide recreational and open space for the benefit of New Yorkers, unless and until the particular site transitions back to its primary municipal use or is adapted for another use (id.). For example, the Parks Department manages properties that are held by the City’s Department of Housing Preservation and Development (“HPD”) as the future site of housing developments (id.). Agencies permit the Parks Department to manage their unused properties subject to the understanding that they will be returned to that agency when they are needed by such agency for another municipal 27 use (A.2501-A.2502). Adrian Benepe, the Commissioner of the Parks Department from 2002 through 2013, averred that “no agency would permit [the Parks Department] to temporarily utilize property within its jurisdiction if that temporary use compromised its future plans or rights over the parcel” (A.3219). These arrangements are thus subject to agreements (either formal or informal), which specify that management and oversight of the parcel by the Parks Department is temporary and not to be construed as a formal dedication of the property as permanent parkland (A.2502, A.3219).3 One example of non-parkland sites that receive management and oversight from the Parks Department is the GreenThumb Program (A2503), of which the LaGuardia Place Garden is a part. There are approximately 600 community gardens in the program that receive assistance from the Parks Department, many of which are on properties held by other agencies such as the Department of Education, DOT, HPD, the Fire Department, and the New York City Housing Authority 3 City respondents submitted below the affidavit of Margaret Forgione, the Manhattan Borough Commissioner for DOT since 2002 and an individual who held key positions with DOT since 1994. She affirmed DOT’s view that the parcels here are mapped street that can only be de-mapped through ULURP. In addition, she noted that any capital expenditures made in relation to the parcel was consistent with their status as streets and did not alter their status as streets (A.3231-A.3236). 28 (id.). For these sites, the agency with jurisdiction over the property generally enters into a license agreement with the garden (id.). GreenThumb staff and the Parks Department then serve as a resource and provide guidance, oversight, and supplies to the garden group (id.). The Parks Department also manages numerous mapped City streets as part of the Greenstreets program (A.2502). The program promotes barren street triangles and medians within DOT’s jurisdiction into gardens (id.). Through this partnership between DOT and the Parks Department, unused street spaces are turned into green spaces that beautify neighborhoods, improve air quality, and calm traffic (id.). Many of the properties in the jurisdiction of the agencies that the Parks Department manages have been identified as “parks” and have signage similar to that found on dedicated parkland (A.3212). The Parks Department does these things to notify the public that they may enter and make use of the amenities in the space that the Parks Department is managing in lieu of the agency that controls the parcel (id.). The General Counsel of the Parks Department summed up the City’s view of these arrangements in an affirmation: “These temporary 29 arrangements would not be possible if such interim uses were viewed as dedicated parkland, since the other agencies would be unwilling to lose the ability to make future use of the sites for their own purposes. Moreover, if such interim uses were viewed as creating parkland, the other agencies would likely demand the termination of existing temporary passive and active recreational uses on parcels under their jurisdiction in order to avoid any question regarding the status of these properties” (A.2502). D. Procedural History of this Article 78 Proceeding 1. The Supreme Court Finds Three of the Street Strips to be Parkland by Implied Dedication The petitioners here, neighborhood associations, a group of NYU faculty, and certain elected officials,, brought an Article 78 proceeding in Supreme Court, New York County, to block the NYU Core Project, asserting that the four municipal street strips in question were dedicated parkland that could not be used for non-park purposes without the specific approval of the State Legislature. Conceding that there had been no express dedication or de- mapping of the street strips, the Supreme Court (Mills, J.) nevertheless held that portions of the street strips had been dedicated, by 30 implication, as parkland (A.50-A.51). Finding that the law on what qualifies as implied dedication is “less than crystal clear” (A45), the Court concluded that the street strips had long been used as parkland and that the City’s posting of Parks Department signage or listing of the sites on its website indicated an intent to dedicate the lands as parks (A48-49). In so doing, the Court cited a Second Department decision for the proposition that “acceptance as a public park” triggers the application of the public trust doctrine (A48). It did, however, find that the street strip with a dog run was not impliedly dedicated in light of the fact that the Parks Department had no involvement with the parcel, which is privately operated, and did not list the parcel as a park on its website (A.42-A.43). Without discussing whether de-mapping requires official action by the City Council under ULURP, the Court found that use of the street parcels during construction of the Core Project requires approval of the State Legislature (A.51). 31 2. The First Department Reverses and Holds that None of the Parcels Had Become Parkland by Implied Dedication The First Department expressed the settled standard for implied dedication cases, noting that to prevail, petitioners needed to establish a fixed and unequivocal intent on the part of the City (A.4-5). Such intent must be gleaned from the acts and declarations of the owner (i.e., the City), and “circumstances surrounding the use of the land” (id.). The Court also noted that petitioners carry the burden of establishing implied dedication. Based upon its review of the full record from below, the Court held that the street strips at issue had not been dedicated as parkland, because petitioners failed to meet their burden of “showing that the City’s acts and declarations manifested a present, fixed, and unequivocal intent to dedicate any of the parcels at issue as public parkland” (A5). The court noted that any use of some of the parcels for park-like purposes was “not exclusive,” and further observed that some of the parcels had been “used as pedestrian thoroughfares” (id.). The Court also pointed out that “any management of the parcels by the Department of Parks and Recreation was understood to 32 temporary and provisional, pursuant to revocable permits or licenses” (id.). In addition, “the parcels have been mapped as streets since they were acquired by the City, and the City refused various requests to have the streets de-mapped and re-dedicated as parkland” (id.). Both the Supreme Court and the Appellate Division rejected all of petitioners’ environmental review and land use claims. ARGUMENT POINT I THE RECORD DOES NOT SUPPORT PETITIONERS’ CLAIM THAT THE CITY INTENDED TO DEDICATE THE STREET STRIPS PERMANENTLY AS PARKLAND Under precedent of this State’s courts dating back to the 19th Century, the question of whether a landowner irrevocably dedicated a property to public use has always hinged on a showing of unequivocal intent of the owner. Perhaps conceding implicitly that this legal standard is fatal to their claims, petitioners propose a novel and unprecedented approach that casts intent aside. No case law supports that position, and adopting it would adversely affects the City, other municipalities around the State, and the residents of New York. The 33 Appellate Division below, applying settled legal principles, correctly rejected petitioners’ claims of implied dedication. A. Implied Dedication Occurs Only Where a Local Government’s Acts and Declarations Demonstrate an Unequivocal Intention To Permanently Dedicate Its Property as Parkland. Local governments usually do not need the State Legislature’s permission before making judgments about how to use their property in the best interests of their residents. The public trust doctrine is a limited exception to this principle, holding that when a local government has dedicated land for use as parkland, it may not later alienate the land or use it for non-park purposes without the approval of the State Legislature. There are two methods by which a local government may dedicate its property as parkland and thereby accept permanent restrictions on its use of the property, under the State Legislature’s superintendence. The first method is express dedication, such as by formal resolution of the locality's governing body dedicating the property. The second method is implied dedication, where a court might consider finding dedication even though no formal steps necessary to effect an express dedication have occurred. Here, all parties agree that the street strips 34 were never expressly dedicated as parkland, so implied dedication is the only question. The test in implied dedication cases contains two distinct components. First, challengers filing suit must establish that the owner unequivocally intended to permanently dedicate the plot for a particular public use. Second, that dedication will be deemed perfected, and thus become irrevocable, if the public has “accepted” the owner’s dedication. See Cook v. Harris, 61 N.Y. 448, 453 (1871). Petitioners’ implied dedication claim fails on the first part of the test, because the City never displayed any intent, let alone an unequivocal intent, to permanently dedicate the street strips as parkland. For well over a century, the Court has set a high bar for establishing an implied dedication. Because a finding of implied dedication will result in a permanent restriction on a property owner’s use of its own property, implied dedication will not be found where evidence as to the owner’s intent to permanently dedicate the property is less than crystal clear. This Court set out the rule over 150 years ago, when it stated that to find an intent to dedicate by implication, the “owner’s acts and declarations should be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to 35 permanently abandon the property for a public use.” Holdane v. Trustees of the Village of Cold Spring, 21 N.Y. 474, 477 (1860) (finding no dedication when the acts of the owner were “equivocal and indecisive”). The Court reiterated in Cook that a showing of “unequivocal” intent is required, 61 N.Y. at 454, tracing it there to an even earlier decision which stated that acts of an owner must be “unequivocal in their character” to establish an intent to dedicate, Hunter v. Trustees of Sandy Hill, 6 Hill. 407, 414 (N.Y. 1844). A half-century after Cook was decided, this Court reaffirmed the point in slightly different but equally strong terms, stating that the acts and declarations of an owner “must be unmistakable in their purpose, and decisive in their character, showing an intent to dedicate the land, absolutely and irrevocably to public use.” Matter of City of N.Y., 239 N.Y. 119, 128 (1924) . More recently, this Court affirmed on the opinion below a decision of the Second Department that again cited the unequivocal intent standard when analyzing an implied dedication claim. Ackerman v. Stiesel, 104 A.D.2d 940 (2d Dep’t 1985), aff’d, 66 N.Y.2d 833 (1985). Given this unbroken line of cases, petitioners’ claim 36 (Br. At 44 n.12) that this Court had never adopted the unequivocal intent standard is remarkable. The unequivocal intent standard has also been universally adopted by the courts of the Appellate Division. See Powell, 85 A.D.3d 429, 431 (1st Dep’t 2011) (finding no unequivocal intent to dedicate), lv. denied, 71 N.Y.3d 715 (2011); Bond v. Turner, 78 A.D.3d 1490, 1492 (4th Dep’t 2010) (grantor evinces “the requisite unequivocal intent to dedicate”); Riverview Partners L.P. v. City of Peekskill, 273 A.D.2d 455 (2d Dep’t 2000); Klug v. Jeffers, 88 A.D. 246 (3d Dep’t 1905) (requiring acts “unmistakable in their purpose” to find an intent to dedicate) (internal citation omitted).4 4 In addition, and contrary to petitioners’ implication, the unequivocal intent standard has been adopted and applied by the highest State courts all over the country. See, e.g., City of Fort Payne v. Fort Payne Athletic Assoc., 567 So. 2d 1260, 1263 (Ala. 1990) (“unequivocal intention” required to show dedication); Lewis v. Portland, 25 Ore. 133, 156 (1895) (setting out the unequivocal intent standard and finding no such intent in light of “acts and declarations which are entirely inconsistent with any intention to abandon or dedicate the property”); Ventres v. Town of Farmington, 192 Conn. 663, 667 (1984) (“essential elements to be proved” in implied dedication case includes the “owner’s unequivocal intention”). See also Jackson v. Bd. of Comm. of the Cty. of Monroe, 916 N.E.2d 696, 704-705 (Ct. App. Ind. 2009) (finding no unequivocal intent to dedicate and that mere acquiescence to the public’s use of plot as a road insufficient to demonstrate such intent); Village of Clayton v, Colorado & S. Ry. Co., 30 N.M. 280, 284-85 (1924) (reversing the trial court for its failure to correctly apply the rule that requires that intention be “clear, convincing, and unequivocal”); Northglenn v. Thornton, 193 Colo. 536, 539 (1977); H.A. Maddox v. Maxwell, 369 S.W.2d 343, 348 (Tex. 1963) (finding no unequivocal intention when the landowner let the public use the plot for ingress and egress at the landowner’s discretion). 37 That this Court and the State’s appellate courts would set such a high bar for dedication makes sense. The act of dedication is irrevocable. If a dedication has been made, and the acceptance has occurred, the landowners’ rights over the property are restricted forever. The exacting standard set out by this Court ensures that both public and private landowners are able to open up their properties to temporary public use without fear of this result. It is plainly for that reason that courts will not find dedication absent a showing of unequivocal intent to permanently dedicate the property, as the First Department did below, and will conclude that implied dedication has occurred only when an unequivocal intent is apparent from all pertinent acts and declarations of the landowner in the record. See, e.g., Gerwitz v. City of Long Beach, 69 Misc.2d 763 (N.Y. Sup. Ct., Nassau County 1972) (finding an unequivocal intent to dedicate public parkland based on a local law creating the park and no evidence of a contrary intent), aff’d, 45 A.D.2d 841 (2d Dep’t 1974), appeal denied, 45 A.D.2d 841 (1974). 38 B. The Record Establishes Conclusively that the City had No Intent to Dedicate These Street Strips as Parkland. The implied dedication standard established by the Court has three important components: the owner’s acts and declarations must (1) “be deliberate, unequivocal and decisive,” and (2) “manifest[] a positive and unmistakable intention” (3) “to permanently” dedicate the property as parkland. Holdane, 21 N.Y. at 477. The First Department correctly held that petitioner failed to meet their burden under this standard. Through every act and declaration, the City never displayed any intent, let alone an unequivocal or positive and unmistakable intent, to permanently dedicate the street strips as parkland. First, paradigmatic evidence of an intent dedicate is a locality’s purchase of a plot for park purposes or mapping the plot as a park. See Village of Croton-on-Hudson v. County of Westchester, 28 A.D.2d 979 (2d Dep't) (finding implied dedication when plot purchased for park purposes by the village), aff'd, 30 N.Y.2d 959 (1972); Powell, 85 A.D.3d at 373 (area had “never been mapped” as parkland); Lazore v. Bd. of Trustees of Vil. of Massena, 191 A.D.2d 764 (3d Dep’t 1993) (no dedication when plot was neither on the tax roll nor the map as parkland); Douglaston & Little Neck Coalition v. Sexton, 145 A.D.2d 39 480, 481 (2d Dep’t 1988) (no dedication as “site was acquired for other than park purposes”). Here, the street strips were not purchased for park purposes. They were not even purchased for general purposes. Instead, they were expressly purchased for a purpose other than park purposes, i.e., for the purpose of being held in trust as public streets. The parcels also not mapped as parks but rather were mapped as streets. Petitioners do not cite a single case where an unequivocal intent to dedicate property as parkland was found when a plot was purchased and mapped for specific other purposes. To the contrary, the two main cases on which petitioners rely in support of their implied dedication argument involved situations where the subject plot was purchased for park purposes (and, in one case, also was mapped as a park). See Riverview, 273 A.D.2d at 455-456 (plot both purchased for park purposes and mapped as a park); Village of Croton- on-Hudson, 38 A.D.2d at 979 (plot purchased expressly for park purposes). And the third case cited by petitioners held that a plot had been acquired for non-park purposes precluded a finding that it had been dedicated as parkland by implication. Angiolillo, 290 A.D.2d at 19. 40 Second, the City’s repeated refusal of requests to dedicate these strips as parks by de-mapping them as streets through the public review processes, including ULURP, strongly undercuts any contention that the City displayed an unequivocal intent to permanently dedicate the property. Over the course of decades, various groups and individuals, including some of the very same groups and individuals that are petitioners here, sought to have the parcels dedicated as parkland. All such requests failed. The earliest request came from the Manhattan Borough President in 1967; the Board of Estimate took no action on that request. In the 1990s, various individuals, including some petitioners, sought to have the parcels dedicated as parkland, and those requests were rejected on the express grounds that the City did not want to dedicate them as such. Similar requests have been made more recently, and they have consistently been denied. These rejections are plain proof that the City did not at any point want to permanently dedicate the plots as parkland. Petitioners argue that the City’s repeated refusal of requests to dedicate the property shows only that an express dedication was never 41 made and has no relevance to the question of implied dedication. But this point has no merit. To be sure, the mere fact that a local government has not expressly dedicated property as parkland cannot also defeat implied dedication. But here, the record contains much more than the mere absence of an express dedication. The record here shows that the question whether to permanently dedicate the street strips as parkland was repeatedly placed before city officials, and those officials either pointedly took no action on the requests or expressly refused them because the City did not want to dedicate the property permanently as parkland. The notion that the City could have displayed an unequivocal intent to dedicate a parcel as a park when it was refusing to dedicate the parcel as a park (and outlining the legislative steps that would be required to effectuate such a change) makes no sense. Third, whenever the Parks Department engaged in administering or beautifying one of the plots at issue, the record includes written documentation specifying that DOT had not relinquished control over the plot. As an initial matter, the Parks Department was never involved in the dog run at all. As to the other strips, the Mercer Playground did 42 not come into being until after the DOT Commissioner had issued a permit to the Parks Department Commissioner noting that Parks’ role managing the parcel was terminable at the will of DOT. The City also issued either licenses or leases to the tenants at the community garden on the South LaGuardia making clear that the City could terminate the license at will. As for the North LaGuardia Strip, the Parks Department’s Greenstreets MOU expressly noted that the beautification of the area, which was jointly completed by DOT and the Parks Department through largely private donations (A2516), was not to be viewed as an act of parkland dedication. See Powell, 85 A.D.3d at 373 (refusing to find implied dedication when the agreement to use a non-Parks parcel for Parks purposes noted the temporary and revocable nature of the arrangement).5 Petitioners’ claim that the City’s position with respect to these plots was unknown to the public is incorrect. The licenses and permits noting the revocability of use at the LaGuardia Corner Gardens was signed by the Chair of the group that runs the garden, who was simultaneously told by DOT in the mid-2000s that the City did not 5 Other than pursuant to the MOU, the Parks Department played essentially no official role in administering the North LaGuardia Strip. 43 intend to dedicate the plots as parkland. Meanwhile, the City’s refusal to dedicate the North Mercer Strip permanently as parkland was known by neighborhood associations, community boards, and elected officials. Finally, the former Parks Commissioner and a senior official at DOT both submitted affidavits or affirmations in this case expressing the view held by their agencies that the temporary arrangements with Parks did not—and indeed, since the parcels are mapped as public streets, could not—result in a permanent dedication of the properties as parkland (A.3214-A.3225). Commissioner Benepe, who worked for the Parks Department for 27 years, and who was very familiar with the four street strips, could not have clearer in averring that the City never had any intent to dedicate these parcels and had involved the Parks Department in management of some of the parcels with the understanding that no dedication would occur as a result. Margaret Forgione, a senior official at DOT with twenty years at the agency, also confirmed DOT plots are only temporarily administered by the Parks Department. She said it would be “troubling” to view the plots as dedicated in light of what it would mean for DOT’s policy of 44 allowing temporary management of hundreds of plots by the Parks Department for the benefit of the public (A.3230). Petitioners have never offered any meaningful rebuttal to these statements of current and former government officials. Aside from affidavits from neighbors, the only evidence petitioners have ever proffered to counter the City’s evidence is affidavits from former Parks Commissioner Henry Stern and former DOT Commissioner Christopher Lynn. However, former Commissioner Stern concedes in his affidavit that efforts to map the streets as parkland failed, which in effect proves the point that they had not been so dedicated (A.3147). Former Commissioner Stern also signed the 1995 permit issued by DOT for what became the Mercer Playground, which permit was made revocable by its express terms (A.2497). In his affidavit, former DOT Commissioner Lynn claimed only that he and Commissioner Stern would informally decide which plots should be transferred to the Parks Department (A3190). It is, of course, the height of irony that petitioners would criticize respondents for relying on official documentation that is purportedly hidden from view, and then themselves would rely on asserted private backroom deals in 45 support of their claim. Commissioner Lynn’s statements are, overall, contradicted by every other piece of evidence in the record. In an effort to counter the overwhelming evidence indicating a lack of intent to dedicate, petitioners offer three cases which are so starkly different from this case that they only underscore the weakness of the record here for petitioners. In Cook, the intent of the landowner to dedicate was unmistakable. He accepted $200 dollar in exchange for providing a bond dedicating a plot as a highway, and the record was devoid of any evidence that he never intended an irrevocable dedication. Cook, 61 N.Y. at 454. As for Village of Croton-on-Hudson, the village’s intent to dedicate was manifested by a bond offering to finance a park and the purchase of the land specifically for use as a park. Finally, in Riverview Partners, it was the city itself asserting in court that it had intended to dedicate the plot as a park, after having purchased it for park purposes, mapped it as a park, and maintained it as a park. See Riverview Partners, 273 A.D.2d at 455-456. The chasm between those three cases and this one cannot be bridged. Nor is it true, as petitioners contend, that to hold that no implied dedication occurred here would be to eliminate altogether the concept of 46 implied dedication. There are instances where a landowner may take acts indicating an unequivocal intent to dedicate, but fail to follow through on legal steps necessary to achieve a formal express dedication, by, for example, failing to pass a certain resolution or record the dedication in some written format. In such instances, a landowner will not be permitted to capitalize on its own failures to expressly dedicate the property, in the event that it later changes its intentions regarding the property. And decisions such as Cook and Village of Croton-on- Hudson well demonstrate that implied dedication can indeed occur under the right circumstances. Those circumstances are simply absent on the record here. C. Petitioners’ Near Exclusive Reliance on the Public’s Use of Parts of the Property for Park-like Purposes Ignores the Centrality of the City’s Intent and Disregards the Context in Which That Use Occurred. Petitioners focus their brief almost exclusively on the contention that the public has used parts of the street strips for park-like purposes, and on their related contention, unsupported by any evidence, that some members of the public may have thought that the property would always be available for such park-like use. But petitioners’ arguments are completely untethered to the question of the City’s intent, which is 47 the central and key issue under the Court’s precedents stretching back more than a century. While we acknowledge that public use of property may sometimes be relevant in determining the owner’s intent, in this case, for three major reasons, petitioners’ references to public use of the street strips fail to show that the City had a “positive and unmistakable intention to permanently” dedicate the strips as parkland. Holdane, 21 N.Y. at 477. First, under the case law, public use has played a confirmatory role in supporting a finding of an intent to dedicate, where it is consistent with other evidence of the overarching intent of the landowner, as demonstrated by other acts and declarations. E.g., Riverview Partners, 273 A.D.2d at 455-456. Here, by contrast, petitioners seek to use public use to override more direct evidence that the City had a contrary intent, such as the evidence that the property was acquired and mapped for street purposes, and that city officials refused numerous requests that the strips be de-mapped and permanently dedicated as parks. In every case where public use has been cited in support of an implied dedication holding, the intent to dedicate was also shown by other evidence, such as purchase documents, resolutions, local laws, or 48 map designations. E.g., Gerwitz, 69 Misc. 2d at 770 (enactment of a local law that creates a park). Not one court has held that public use is sufficient in and of itself to establish an intent to dedicate, let alone so held where, as here, the record contains abundant other evidence that the owners’ intent was to the contrary. Any such holding would directly contravene the settled case law in this State that makes the owners’ intent, not the public’s use of property or perceptions about it, the ultimate touchstone in the implied dedication inquiry. Second, while public use may provide some evidence of an intent to dedicate property as parkland when the plot is used exclusively for park purposes, public use does not tend to show an intent to dedicate where that use is fundamentally consistent with a different legal status for the property, as it is here. Thus, in both Village of Croton-on-Hudson and Riverview Partners, the plots at issue were used only as parks. Here, by contrast, the parcels have always been used consistently with the Administrative Code’s definition of “streets,” and are still being so used. Pedestrians walk along the sidewalks on the strips and skateboarders play in them, like they would on any other sidewalk. The strips have 49 benches for seating, and trees or shrubs have been planted to make them more pleasing to the public, but this does not make them parks. Petitioners’ assertion to the contrary rests on a cramped conception of “streets” solely as means of vehicular travel. But the term is much broader than that: pathways, sidewalks, and open spaces all qualify as “streets” under the Administrative Code, and the record does not support the contention that these parcels were used for any other purpose from their inception. The concept that a parcel must have vehicular traffic to be deemed a street is plainly incorrect as a matter of law. See Administrative Code § 1-112(13). Petitioners point out that parks, too, often contain sidewalks for pedestrians to walk through them. But this misses the point. To be sure, parks may include pedestrian walkways, but the key is that pedestrian walkways are not distinctive to parks. Thus, the fact that the strips include sidewalks for pedestrian travel in no ways suggests that they are parks. Nor does the mere addition of greenery and benches near the sidewalks do so. Rather, the public’s use of the strips is fundamentally consistent with their different legal status as streets, 50 which is indeed the purpose for which the parcels were acquired and for which they have always been mapped. Thus, this case is more akin to Angiolillo and Powell, where implied dedication was not found, than it is to the authority cited petitioners. In Powell, a DOT parcel along the East River was handed over to Parks Department control for management as a walkway and bikeway. Whether this use was consistent with park purposes was not consequential because the use was also consistent with the parcel’s status as mapped street. In Angiolillo, too, the court held that a parcel which was being used for non-park purposes could not simultaneously become impliedly dedicated as parkland. Third, and perhaps most importantly, to the extent that certain parts of the strips have been used for purposes usually associated with parklands, that use occurred pursuant to arrangements that were expressly made temporary and revocable. The evidence of those arrangements thus negates any inference that the public’s use of the property demonstrates the requisite intention on the part of the City to permanently dedicate the property as parkland. 51 For example, to the extent the playground on the North Mercer Street is viewed as being open for park use, such use cannot be divorced from the context in which it has occurred. That public use occurred pursuant to a permit, signed by the Commissioners of DOT and the Parks Department, with the express condition that Parks Department management was temporary and could be revoked by DOT at any time. And both the issuance of the permit and the opening of the playground occurred at the same time that city officials refused to have the plot dedicated permanently as parkland. Those facts make park-like use of the Mercer Playground plainly irrelevant on the question of intent. For all of these reasons, to the extent that public use can at times be relevant evidence of a local government’s intent in implied dedication cases, it is of no use to petitioners here. Under a proper analysis, focused on the intent of the City as the ultimate touchstone, the record decisively shows, through affirmative acts and declarations of city officials, that the City did not intend to permanently dedicate the strips as parkland. 52 D. Petitioners Improperly Conflate the Question Whether the Local Government Intended to Dedicate the Property with the Separate Question Whether the Public Has Accepted an Intended Dedication. As noted above, petitioners’ appeal stands on the sole proposition that long use by the public for park-like purposes, by itself, results in a permanent dedication of the property, without further examination of whether the record shows that a local government displayed an unequivocal intention to dedicate the property. But they cite a litany of cases that undermine their claim, because nearly all of the cases address the question whether the public has accepted an intended dedication, which is an issue separate from, and logically consequent to, the question whether the owner intended a dedication in the first place. Here, petitioners’ claims fail for the absence of proof that the City intended any permanent dedication, and so the question of acceptance is never reached. 1. Cases Discussing Alleged Acceptance of a Dedication Have No Bearing Here. To support their claim that long, continued use public itself results in dedication, rather than merely constituting a means by which the 53 public may accept an intended dedication, petitioners are forced to distort a series of this Court’s precedents. In Cook v. Harris, for example, the owner’s intent to dedicate was undisputed. Indeed, the owner had contracted with parties to dedicate the land. This Court then went on set out the standard for acceptance by stating that “such acceptance may be proved by long public use.” Cook, 61 N.Y. at 453. Cook cited another case highlighted by petitioners, where the intent to dedicate the plot, too, was conceded and uncontroverted. See Hunter, 6 Hill. at 410-412. Petitioners also cite People v. Loehfelm, 102 N.Y. 1 (1886), in support of their claim that public use is determinative of the implied dedication question. But the case says no such thing. In Loehfelm, as in Cook, the owner’s intent to dedicate the plot was not in dispute. The only question in the case, and the only one put to the jury, was whether the public had accepted the dedication. It was in that context of that discussion that long, continuous use became relevant. But acceptance is an entirely separate question from the owners’ intent to dedicate. Loehfelm thus provides no support to petitioners at all. 54 The same is true as to Flack v. Village of Green Island, 122 N.Y. 107 (1890). This Court in Flack could not have been clearer that implied dedication requires two separate and distinct acts: an intent to dedicate on the part of the owner and an acceptance of the dedication by the public. This Court found “indisputable” evidence of an intent to dedicate, based principally on the owner’s conveyance of land for it to be mapped as a street and placement of the land on the village’s map as a street. Id. At 115-116. The Court then went on to discuss how the public used the streets and how the village had accepted the plot as a street by maintaining it. Again, the decision in no way dilutes or changes the overarching principle that the intent of the landowner, not use or public perception, is the first necessary element to be proven in implied dedication cases such as this one. In fact, Flack’s reliance on maps to ascertain the owner’s intent only undercuts petitioners’ position here. Petitioners also contend that this Court’s decision in People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394 (1937) supports the claim that long, continued use results in dedication. This decision says nothing of the sort and indeed stands for the opposite proposition. The concerned a criminal nuisance action brought by the State against a 55 railroad company wherein the State had to prove beyond a reasonable doubt that the company was operating on a street parcel. The intent to dedicate was established conclusively, but acceptance had not been so established. Id. at 402. Thus, the discussion of what the City had or had not done was limited solely to the acceptance question. Here, again, petitioners’ reliance on discussion of the question of public acceptance, when the key issue in this case is the City’s intent, illustrates the weakness of their position. 2. Petitioners’ Reliance on Estoppel Principles Further Shows How Far Afield They Must Strain. Petitioners imply that to hold in favor of the City would be contrary to the doctrine of estoppel and would constitute a “fraud upon” the public (Pet. Br., at 38). But as we have shown, the City’s refusal to permanently dedicate the street strips as parkland was clearly known to several of the petitioners here, as well as other members of the public. More fundamentally, petitioners cite no case where a court has held that estoppel can be used to find implied dedication by a municipality, and the cases they do cite concern only private landowners. Petitioners are reaching for straws in resorting to estoppel principles. 56 This Court has held repeatedly that “estoppel is not available against a governmental agency in the exercise of its governmental functions.” See Pless v. Town of Royalton, 81 N.Y2d 1047, 1049 (1993) (internal citation omitted). Indeed, the doctrine of estoppel is applicable to governmental agencies in only the rarest of cases. See Matter of Green Cty. Dep’t of Soc. Svs. v. Ward, 8 N.Y.3d 1007, 1014 (2007) (internal citation omitted). There is no basis whatsoever to apply estoppel here. And relying upon the doctrine here would vitiate the established principle that the intent of the municipality, not any claimed reliance by members of the public, is the lodestar on the first necessary element of the implied dedication inquiry. Moreover, it is clear that the Court’s references to estoppel in pais in cases on dedication refer to situations when an owner has unequivocally dedicated a plot and it has been decisively accepted by the public. The reference to “honest expectations” refers to the expectations of those who have acted to accept a dedication, once the owner’s intent to dedicate the property has been conclusively established. Thus, for example, if an owner unequivocally dedicates a plot for a burial ground and the public accepts this dedication by using 57 the plot for burial plots, that reliance should be given weight and the owner should not be permitted to revoke his or her dedication. Hunter, 6 Hill. At 412. But, here, the claim of implied dedication fails at the first step because the City did not intend—let alone unequivocally intend—to permanently dedicate the strips in question as parklands. So, this is not an estoppel case, and, even if were, the doctrine is inapplicable to the City. Petitioners’ reliance on inapposite principles of estoppel shows, once again, how little authority supports their position. E. Finding Dedication on These Facts Would Greatly Impair Local Governments’ Flexibility to Allow Temporary Use of Non-Park Properties for Public Enjoyment. Petitioners’ position is not only contrary to more than a century of precedent addressing implied dedication, but would be deeply harmful to the public interest, because it would hamstring municipalities’ flexibility to make underutilized or vacant municipal properties available on a provisional basis for public use and enjoyment, while retaining the ability to use those properties for other purposes as needed in the future. Petitioners advance an overly simplistic conception of municipal open spaces, where all attempts to beautify or 58 improve municipal space and to encourage public use and enjoyment of them must lead inexorably to the dedication of the space permanently as parkland. But as the City and our supporting amici have shown, the actual experience of local governments across the State is dramatically more nuanced and complex, to the great benefit of the State’s residents and visitors. See Conference of Mayors et al. Amicus Br. 7-9, 11-14; New Yorkers for Parks et al. Amicus Br. 20-22. For example, in New York City alone, the Parks Department currently manages over 2000 properties that are owned by other agencies, such as DOT, the N.Y.C. Department of Housing Preservation and Development, and the Department of Education. These properties may be the planned sites of future housing developments or paved streets (A.2502). But right now, until such other uses come to fruition, which may often take some time, the properties hold community gardens and the like. Similarly, street parcels throughout the City have been beautified with plantings under the City’s nearly two-decades-old Greenstreets program. The benefit the public derives from such programs is undeniable. Adopting petitioners’ legal theory here would 59 place all those benefits in jeopardy, in New York City and elsewhere throughout the State. In a decision affirmed by the Second Department, the Supreme Court identified this very concern. See Pearlman v. Anderson, 62 Misc. 2d 24, 26-27 (N.Y. Sup. Ct. Nassau County 1970), aff’d, 35 A.D.2d 544 (2d Dep’t 1970). In Pearlman, a village had purchased a plot of land for general purposes that was located at the end of a pedestrian walkway. The village installed pathways, a few benches for public use,, and some shrubs and trees, and posted a sign that said “Park Closed” after sunset. Evidence established that children played on the property and members of the public used the walkways, similar to ways that the street strips have been used here. The court refused to find that the plot had been dedicated by implication, particularly in light of the village’s purchase of the property for general purposes. It expressed precisely the policy concern in a contrary finding that is raised here: “To hold otherwise would cause public officials to bar the use as a park of land acquired for future needs. This certainly would not be in the public interest.” Pearlman, 62 Misc. 2d at 27. 60 The record here is far stronger for the City than was true for the village in Pearlman, since here the use of the street strips as urban pedestrian thoroughfares is fully consistent with their mapped status as streets, and other public use of parts of the strips for park-like purposes, such as the playground on the North Mercer Strip or the community garden on the South LaGuardia Strip, occurred pursuant to licenses or permits issued by DOT that were expressly made provisional and revocable. Petitioners’ position, if adopted here, would thus have a chilling effect on officials of cities and local governments around the State. The 2000 City-owned plots that are not in the Parks Department portfolio but are managed with Parks Department cooperation include community gardens used by local communities for the growing of plants and hundreds of street medians and sidewalks that are beautified with greenery under the Greenstreets program. If petitioners were to prevail here, the City would have no choice but to consider shuttering such properties and excluding the Parks Department from any involvement with them. Going forward, when an agency other than the Parks Department had unused land for which it had not yet decided a use or 61 which was not yet ready to be used, it would simply fence it in until the time arose when it was ready to proceed with its final plans for the site. This would do a great disservice to the public. And it is contrary to desire of local officials to maximize the use of all of municipal property, particularly in a place such as New York City, where open property is in such short supply. Petitioners are in effect seeking to punish the City for applying the full expertise of the Parks Department to each of the plots it temporarily manages and for inviting the public to use and enjoy the plots. It is good operational governance, however, to invite and encourage the public to enjoy a plot through signage or website information, to have the Parks Department work on shrubbery and plants on those plots as it would on its own parcels, and to construct features such as playgrounds for the enjoyment of children. These efforts should be lauded, and should not be undermined by sending the message to local governments that doing those things inevitably risks losing permanent control over their properties, whether any such permanent dedication is intended or is not. Perhaps petitioners envision a world where every municipal sign or website that encourages public use and enjoyment of property not 62 intended to be dedicated permanently as parkland is accompanied by a legal warning or disclaimer. Petitioner presumably would have had the City post signs near the Mercer Playground noting that the City has no intent to dedicate the plots and that the properties remain mapped streets under DOT’s jurisdiction. But this vision of cluttering municipal open spaces with legalese and disclaimers is not one that should be encouraged. If disclaimers had been posted near the Mercer Playground, the members of the public, instead of feeling invited in, more likely would have found themselves bewildered. In any event, and fortunately, no law supports any such requirement or holds that local governments that encourage public use and enjoyment of property on a temporary basis must cede permanent loss of control, absent some kind of disclaimer. Indeed, numerous courts have by now made clear that merely posting signage or inviting the public to use a plot does not demonstrate an unequivocal intent on the part of the municipality to permanently dedicate the property. See Powell, 85 A.d.3d at 430; Pearlman, 62 Misc. 2d at 27; Hotel Emps. & Rest. Emps. Union, Local 100 of N.Y. v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, (2d Cir. 2002) (refusing to find implied 63 dedication even though Lincoln Center Plaza was designated as a “park” on the Parks Department website). That is a sound rule which should be continued, so as to preserve needed flexibility for local governments across the State in managing their properties in the interests of their residents and to perpetuate the public benefits that result when unused municipal property may be provisionally opened for public use, enjoyment, and recreation, without necessarily causing a permanent dedication of the property as parkland subject to the superintendence of the State Legislature. POINT II THE PETITION FAILS FOR THE INDEPENDENT REASON THAT PARCELS MAPPED AND ACQUIRED AS STREETS CANNOT BE REDEDICATED FOR OTHER PURPOSES BY IMPLICATION Petitioners’ appeal can and should be dismissed on the ground that they did not meet their burden of establishing that the City displayed an unequivocal intent to dedicate the strips in question permanently as parkland. But even if petitioners could show that the City intended an implied dedication, their claims would fail because streets, like parks, are held in trust by localities under a special legal 64 status, see Baker v. Village of Elmsford, 70 A.D.3d 181, 185 (2d Dep’t 2009), and thus may be closed or remapped for other purposes only by express legislative act. Thus, city officials had no power to discontinue these street strips and change the city map by implication, even if they had displayed the requisite unequivocal intention to do so that is generally required under implied dedication principles. We have explained above that the parcels in question here were not acquired or mapped for park purposes, or even for general municipal purposes, but rather were acquired and mapped for a specific alternative municipal purpose—functioning as public streets. This fact not only bears on whether the required showing of an intent to dedicate the property as parkland has been made, but categorically renders the doctrine of implied parkland dedication unavailable to petitioners here. Public streets are protected by a special legal status similar to that which protects parklands. The deeds by which the City acquired the strips at issue here expressly granted the parcels to the City “in trust for street purposes” (A.2345, A.2350, A.3129). State law, indeed, deems streets “inalienable.” N.Y. Gen. City Law § 20(7). The State’s power to “discontinue” (i.e., shut down) streets is “plenary, and may be 65 exercised directly by the [State] Legislature or delegated by it to a subordinate governmental agency.” Stahl Soap Corporation v. City of New York, 5 N.Y.2d 203 (1959); E & J Holding Corp. v. Noto, 126 A.D.2d 641, 643 (2d Dep’t 1987) (“‘It is hornbook law that a State or municipality may close a street, if acting under proper statutory authority.’”). Just as it authorizes cities to establish streets, General City Law § 20(7) authorizes them to discontinue streets; separately, General City Law § 20(2) discusses cities’ powers with respect to the alienation of both streets and parkland. See also General City Law § 29 (authorizing the “legislative body” of cities to change or add to the official map of the city to lay out new streets, widen current ones or “close existing streets”). Administrative Code § 5-430, et seq., which was enacted by state legislation, specifically delegates to the City the power to discontinue streets. N.Y.C. Ad. Code §§ 5-432, 5-433. There is no other legislative authorization for the discontinuance of streets. Under the Administrative Code, the City is authorized to discontinue a street if it determines that the discontinuance “will further the health, safety, pedestrian or vehicular circulation, housing, economic development or general welfare of the city.” N.Y.C. Ad. Code 66 § 5-432(a). Administrative Code § 5-433 provides that discontinuance must be approved by resolution of the Board of Estimate, a power now exercised by the City Council under ULURP. In addition, de-mapping streets requires a change to the City Map, which, in turn, requires review and approval under ULURP. N.Y. City Charter §§ 197-c(a)(1); 197-d; see New York City Council v. City of N.Y., 4 A.D.3d 85, 92 (1st Dep’t 2004). The City Map, which documents (among other things) “all parks [and] streets,” Ad. Code § 25-102, is “conclusive with respect to the location . . . of the streets shown thereon.” N.Y.C. Ad. Code §25-102; New York City Council, 4 A.D.3d at 92 (changes to the City Map, including mapping and de-mapping of streets, must be approved through ULURP). Thus, the law is clear: the only method of closing a street, de- mapping it and mapping it as parkland is through an act of the City Council. There is no authority for the proposition that City officials can close a street and change the City map by fiat or by having the Parks Department manage (or play a role in improving) a street parcel. In this case, the plots at issue were mapped as streets, purchased and deeded to the City for street purposes, used as streets, and upheld by the First 67 Department as streets in litigation where other plaintiffs challenged this very point. Jacobs v. City of New York, 28 A.D.2d 668 (1st Dep’t 1967). Therefore, only a resolution of the City Planning Commission and City Council can close them, de-map them and re-map them as parkland. And, indeed, that is precisely what happened here with respect to two of the plots on the North Block. The resolution related to the Core Project, as approved by the City Council will result in these parcels being de-mapped as streets and mapped as inalienable parkland subject to certain easements (A.743-A.744). Petitioners offered no valid response to this point below. Now on appeal, they have turned the relevant authorities on their head, arguing that the State law that authorizes localities to map or de-map streets supports them and not the respondents. They are wrong. First, nothing about the authorities cited above has any bearing on the common law doctrine of the public trust (Pet. Br., at 60). That doctrine applies equally to streets and parks. It provides that a park or a street can only be alienated by the State, as sovereign, or, in the case of streets, by localities vested with that power by the State Legislature. The only way in which the State has authorized the City to alienate a 68 street in any way and convert it to some other use is by the approval of the City Council, acting upon a resolution of the City Planning Commission. Thus, the City’s position here is consistent with and in furtherance of the public trust doctrine. Second, contrary to petitioners’ contentions, the City’s “abandonment” of an expressway plan is of no moment. In 1956, the Board of Estimate, acting with legislative powers it then could exercise, mapped these plots as streets. Once that had occurred, they could not be closed by implication or the fiat of a particular City official. It would be only the Board of Estimate and now the City Council and City Planning Commission that could close them.6 Nor, in any event, does the abandonment of the prior expressway plan mean that the parcels were no longer used as “streets,” given that the definition of the term includes pedestrian thoroughfares, as well as roadways for vehicular traffic. 6 The sole case cited by petitioners on “abandonment” is City of Buffalo v. Del. Lackawanna & W.R.R. Co., 190 N.Y. 84, 96 (1907). However, that case concerned an implied dedication by a private owner. There is no authority for the proposition that a locality that has mapped a street through legislative action can abandon it by any other means than legislative action. Indeed, this Court’s more recent decision in Stahl makes clear that if the City wants to abandon or close a street, it can do so only by authorization from the State. The State, in turn, has authorized such discontinuance only via the relevant provisions of the Administrative Code. See E.J. Holding Corp., 126 A.D.2d at 643-644. 69 Distilled to its essence, petitioners’ position in this case raises the question of what entity (or official) holds the power to alienate and close a street and strike it from the City map, an act of significant consequence to the City’s government, to neighbors of streets slated for closure and to the public at large. The State Legislature has provided that this power lies with the elected representatives of the City Council, who work in conjunction with the City’s community boards, Borough Presidents, and the City’s Planning Commission in evaluating street closures and changes to the City map. Petitioner’s alternative proposition – that the Parks Commissioner and the DOT Commissioner can get on the phone and arrange to shut a street and make it inalienable parkland – has no basis in law and, if sustained, would subvert the democratic process established for this important municipal act. This First Department recognized this very point in dismissing an early challenge to the mapping of the plots. See Jacobs, 28 A.D.2d at 668, aff’g on the opinion at Special Term, 54 Misc. 2d 46, 51 (Sup. Ct. N.Y. Co. 1966). Moreover, petitioners’ argument that public streets may be closed by implication, if adopted, would present difficulties for the public trust 70 doctrine protecting parklands as well. Given that streets and parks are both legally protected as held in trust for the benefit of the public, if petitioners’ theory were deemed valid with respect to discontinuance of a public street, the same theory almost certainly would also apply to allow a park to be closed by implication, rather than pursuant to express legislative authorization. Either application of implied dedication principles would be repugnant to long-established state law. Thus, in addition to the points presented in Point I above, this Court may also affirm the dismissal of the petition on the alternative basis that implied dedication cannot occur with respect to mapped streets of a locality, because public streets may not be closed or de-mapped by any other means than an act of the City’s local legislative body. POINT III PETITIONERS’ OVERBROAD REMEDIAL REQUEST FURTHER REVEALS THEIR SIMPLISTIC AND RESULT-DRIVEN CONCEPTION OF MUNICIPALITIES’ OPEN SPACES We have shown that the First Department correctly dismissed the petition on the merits, both because petitioners failed to carry their burden of showing that the City’s acts and declarations displayed an 71 unequivocal intent to permanently dedicate the street strips as parkland, and also because street parcels may not be closed and remapped by implication in any event. But even if petitioners’ claims had any merit, their request for an injunction invalidating the project in its entirety or comprehensively prohibiting construction, including construction not affecting the street parcels in question, would remain overbroad and unjustifiable. The usual consequence of a holding that municipal property has been dedicated as parkland is imposition of the requirement that any alienation of the property or conversion of it to non-park uses must be specifically approved by the State Legislature. That requirement itself works a substantial intrusion on municipalities’ authority to manage and dispose of their own property, which is justified by the strong public interest in preserving parklands once they have been dedicated as such.7 But petitioners here go several steps further, contending that a holding that there has been an implied dedication should lead to a total injunction against any construction on the NYU expansion project. 7 Indeed, the State Legislature typically conditions any authorization of parkland alienation on a requirement that municipalities create other equivalent or better parkland—which can be a challenging condition to meet in a dense urban setting. 72 Petitioners premise this argument primarily on the claim that the City’s SEQRA review process will need to be redone altogether if implied dedication is found. They are mistaken. While the City contests the idea that the Final Environmental Impact Statement was flawed in any respect, nonetheless, any purported errors in the SEQRA review may be remedied without starting the entire process anew. In making their unsupported arguments regarding the SEQRA review, Petitioners fail to mention that the “open space” analysis under SEQRA does not just look at parkland, but other privately and publicly owned open space areas that are accessible to the public (cemeteries, playgrounds, public plazas or medians with seating, etc.), see CEQR Technical Manual 7-1—7-2(2010), and that so long as the environmental review thoughtfully analyzes these spaces, the well-settled “hard look” requirement enunciated by this Court in Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 416 (1986), will have been met. Petitioners’ remedial argument, like many of its merits arguments, rests on an overly simplistic conception of municipal open spaces that fails to acknowledge the variety of such spaces that may exist. Here, in accordance with requirements under SEQRA, see 73 NYCRR § 617.7(c)(1)(viii), the FEIS comprehensively analyzed, in quantitative and qualitative assessments, the Core Project’s potential for impacts upon all types of open space within (and around) the proposed development area including, among others, all of the Street Strips (A.440-A.493) (explaining that quantitative and qualitative analyses were performed for Mercer Street Playground, Coles Playground and Plaza [at South Mercer Strip], and qualitative analysis for LaGuardia Corner Gardens, Mercer-Houston Dog Run, and other landscaped areas on North Mercer Strip); Alternative Quantified Open Space Assessment (assessing North LaGuardia strip and other landscaped areas on North Mercer Strip).8 Because the FEIS thoroughly studied the Core Project’s impacts upon open space, including the Street Strips, any finding that one or more of those spaces were dedicated parkland for the purpose of the public trust doctrine would not affect the adequacy of the underlying SEQRA analysis or alter its conclusions, because impacts of the project 8 As disclosed in the Open Space chapter, some portions of the Street Strips were not included in the baseline quantitative analysis due to their inadequate public accessibility or usability, consistent with CEQR methodology. These spaces were, however, included in an alternative quantitative analysis, which accounted for their loss as equivalent to a loss of publicly accessible open space.” 74 on all types of open space had already been disclosed. For this reason, a finding that the street strips or portions thereof were parkland should not necessarily be construed as a “change in circumstance related to the project” warranting preparation of a Supplemental Environmental Impact Statement under the SEQRA regulations. See 6 N.Y.C.R.R. 617.9(a)(7). Under the applicable SEQRA regulations, the lead agency must first be offered the opportunity to make such a determination before a court considers whether the analysis is non-compliant and additional review is required. Thus, an injunction of the nature and breadth suggested by petitioners would be unwarranted. Moreover, even if the street strips were deemed to be parkland, the City could obtain the necessary approvals from the State Legislature to alienate the dedicated parkland, which would not warrant a new environmental review. See, e.g., Chatham Green Inc. v. Bloomberg, Chatham Green, Inc. v. Bloomberg, 1 Misc.3d 434, 445 (N.Y. Sup. Ct. N.Y. Co. 2003) (staying an injunction to allow NYPD time to secure alienation legislation but not requiring further environmental review). 75 Next, an injunction against any form of construction, including of the Zipper Building, is not warranted. Although the Core Project was reviewed as a multi-phase development for purposes of the environmental review, the approval was not contingent upon each and every component of the project proceeding. Rather, the City comprehensively reviewed a phased development plan and adopted a Restrictive Declaration that expressly recognized that only part of the plan might be developed, stating “[i]f the Subject Property is developed in whole or part . . . .” (SA.183-SA.186). The Declaration also makes clear that phased development requires that certain components of the project cannot begin (or certificates of occupancy cannot be issued by the City) until after other project components are finished, such as the completion of certain open spaces associated with certain new buildings (SA.235-51). Thus, even if the project were scaled back by an order of this Court, which we think is not supported by the record, partial completion of the project was always a possible [but not likely] outcome contemplated by the CPC and City Council and restarting time- consuming environmental and public review processes would not be warranted. See, e.g., C/S 12th Ave. LLC v. City of New York, 32 A.D.3d 76 1, 7-8 (1st Dep’t 2006) (stadium and convention center eliminated from community development project did not require recommencing environmental review process). Additional review is only warranted, where, unlike here, the “new” project is “materially different” from the one that was originally proposed. See, e.g. London v. Art. Comm’n of N.Y., 190 A.D.2d 557, 558- 559 (1st Dep’t 1993) (invalidating environmental review for iteration of a project that had undergone environmental review seven years earlier). Thus, because the project components were all thoroughly reviewed, and if development of a part of the Core Project does not deviate from that review or those approvals, an injunction is not warranted. See, e.g., C/S 12th Ave. LLC v. City of New York, 32 A.D.3d at 7-8. At bottom, petitioners’ request for an injunction restraining all construction on the NYU Core Project, including construction that does not involve the street strips in question, demonstrates that this case is more an effort to derail a development protect that the petitioners do not like than it is an attempt to protect the public trust over parklands. In all events, because the record does not support petitioners’ contention that the City displayed an unequivocal intent to 77 permanently dedicate the street strips as parkland, petitioners have no legal basis for interfering with the policy choices made by the City’s duly elected and appointed representatives in approving the project. 78 CONCLUSION The Order appealed from should be affirmed in its entirety, with costs. Respectfully submitted, ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for City Respondents By: _______________________ MICHAEL J. PASTOR Senior Counsel RICHARD DEARING CHRIS REO ELIZABETH HARRIS MICHAEL J. PASTOR Of Counsel May 6, 2015