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, 2015 TO BE ARGUED BY: CAITLIN J. HALLIGAN TIME REQUESTED: 20 MINUTES APL-2015-00053 Court of Appeals of the State of New York DEBORAH GLICK, individually and in her representative capacity as Assemblymember for the 66th Assembly District, BARBARA WEINSTEIN, JUDITH CHAZEN WALSH, SUSAN TAYLORSON, MARK CRISPIN MILLER, ALAN HERMAN, ANNE HEARN, JEFF GOODWIN, JODY BERENBLATT, NYU FACULTY AGAINST THE SEXTON PLAN, GREENWICH VILLAGE SOCIETY FOR HISTORIC PRESERVATION, HISTORIC DISTRICTS COUNCIL, WASHINGTON SQUARE VILLAGE TENANTS’ ASSOCIATION, EAST VILLAGE COMMUNITY COALITION, FRIENDS OF PETROSINO SQUARE, by and in the name of its President, GEORGETTE FLEISCHER, LAGUARDIA CORNER GARDENS, INC., LOWER MANHATTAN NEIGHBORS’ ORGANIZATION, SOHO ALLIANCE, BOWERY ALLIANCE OF NEIGHBORS, by and in the name of its Treasurer, JEAN STANDISH, NOHO NEIGHBORHOOD ASSOCIATION, by and in the name of its Co-Chair JEANNE WILCKE, and WASHINGTON PLACE BLOCK ASSOCIATION, by and in the name of its president, HOWARD NEGRIN, Petitioners-Respondents-Appellants, For A Judgment Pursuant to CPLR Article 78 against ROSE HARVEY, as Acting Commissioner of the New York State Office of Parks, Recreation and Historic Preservation, THE NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, PAUL T. WILLIAMS, JR., as the President and the Chief Executive Officer of Dormitory Authority of the State of New York, DORMITORY AUTHORITY OF THE STATE OF NEW YORK, Respondents, (Additional Caption on the Reverse) BRIEF OF PETITIONERS-RESPONDENTS-APPELLANTS Of Counsel: Randy M. Mastro Caitlin J. Halligan Indraneel Sur Gabriel K. Gillett Sarah Vacchiano Laura F. Corbin GIBSON, DUNN & CRUTCHER LLP Attorneys for Petitioners- Respondents-Appellants 200 Park Avenue New York, New York 10166 212-351-4000 rmastro@gibsondunn.com VERONICA M. WHITE, as Commissioner of the New York City Department of Parks and Recreation, THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, JANETTE SADIK- KHAN, as Commissioner of the New York City Department of Transportation, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, MATHEW M. WAMBUA, as Commissioner of the New York City Department of Housing Preservation and Development, and THE NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, AMANDA BURDEN, as Director of the New York City Department of City Planning and Chair of the New York City Planning Commission, THE NEW YORK CITY PLANNING COMMISSION, THE NEW YORK CITY DEPARTMENT OF CITY PLANNING, CHRISTINE QUINN, as Speaker of the New York City Council, THE NEW YORK CITY COUNCIL, THE CITY OF NEW YORK, Respondents-Appellants-Respondents, and NEW YORK UNIVERSITY, As a Necessary Third-Party Appellant-Respondent. C-1 CORPORATE DISCLOSURE STATEMENT Pursuant to 22 NYCRR § 500.1(f): Petitioner NYU Faculty Against the Sexton Plan states that it is a nonprofit corporation, and that it has no corporate parents, subsidiaries or affiliates. Petitioner Greenwich Village Society for Historic Preservation states that it is a nonprofit corporation, and that it has no corporate parents, subsidiaries or affiliates. Petitioner Historic Districts Council states that it is a nonprofit corporation, and that it has no corporate parents, subsidiaries or affiliates. Petitioner Washington Square Village Tenants’ Association states that it is a nonprofit corporation, and that it has no corporate parents, subsidiaries or affiliates. Petitioner East Village Community Coalition states that it is a nonprofit corporation, that it has no corporate parents or subsidiaries, and that it is affiliated with LES People’s Mutual Housing Association. Petitioner Friends of Petrosino Square states that it is a neighborhood association, that it has no parent or subsidiary, and that it is affiliated with co- petitioner the Historic Districts Council. Petitioner LaGuardia Corner Gardens, Inc. states that it is a nonprofit corporation with no corporate parents, subsidiaries or affiliates. C-2 Petitioner Lower Manhattan Neighbors’ Organization states that it is a nonprofit corporation with no corporate parents, subsidiaries or affiliates. Petitioner SoHo Alliance states that it is a nonprofit corporation with no corporate parents, subsidiaries or affiliates. Petitioner Bowery Alliance of Neighbors states that it is a community organization with no corporate parents, subsidiaries or affiliates. Petitioner NoHo Neighborhood Association states that it is a community organization with no corporate parents, subsidiaries, or affiliates. Petitioner Washington Place Block Association states that it is a community organization, that it has no corporate parents or subsidiaries, and that it is affiliated with Greenwich Village Block Associations (GVBA). TABLE OF CONTENTS Page i CORPORATE DISCLOSURE STATEMENT .....................................................C-1 PRELIMINARY STATEMENT ............................................................................... 1 QUESTIONS PRESENTED ...................................................................................... 7 JURISDICTION ......................................................................................................... 8 PRESERVATION OF ERROR ................................................................................. 9 STATEMENT OF FACTS ...................................................................................... 10 A. The Sexton Plan ........................................................................................ 10 B. The Four Parks.......................................................................................... 11 1. Mercer Playground ........................................................................... 12 2. LaGuardia Park ................................................................................. 14 3. LaGuardia Corner Gardens ............................................................... 16 4. The Dog Run ..................................................................................... 19 C. The City’s Approval of the Sexton Plan .................................................. 20 D. Article 78 Proceeding And Trial Court Decision ..................................... 22 E. Appellate Division Decision..................................................................... 26 SUMMARY OF ARGUMENT ............................................................................... 28 ARGUMENT ........................................................................................................... 32 I. Long Continuous Public Use Is The Key Indicator Of Implied Dedication As Parkland. ................................................................................... 32 A. Long Continuous Public Use Is The Touchstone For Implied Dedication Under The Public Trust Doctrine. ......................................... 32 B. New York’s Lower Courts, Other New York Authorities, And Many Other States Have Also Adhered To Long Continuous Public Use As The Main Determinant Of Implied Dedication. ............... 39 TABLE OF CONTENTS (continued) Page ii C. The Appellate Division Misapplied The Law, Effectively Disregarding The Long Continuous Public Use Of These Four Parks ......................................................................................................... 43 II. Mercer Playground, LaGuardia Park, And LaGuardia Corner Gardens Are Protected Parkland Because The City Actively Promoted Their Continuous Public Use As Parks Over Decades. ............................................. 52 A. Mercer Playground, LaGuardia Park, And LaGuardia Corner Gardens Have Been Dedicated As Parks Through The City’s Active Promotion of Their Long Continuous Public Use For Outdoor Recreation. ................................................................................. 52 1. Since It Publicly Dedicated Mercer Playground In 1999, The City Has Actively Promoted Actual And Continued Public Use Of The Site For Recreation. ...................................................... 52 2. For Nearly Three Decades, The City Has Actively Promoted Actual And Continued Public Use Of LaGuardia Park for Recreation. ........................................................................................ 54 3. Since 1981, The City Has Actively Promoted Actual And Continuous Public Use Of LaGuardia Corner Gardens For Public Recreation. ............................................................................. 57 B. The Other Factors Relied Upon By The Appellate Division Cannot Defeat The City’s Implied Dedication Of These Parcels. ........................ 58 1. The Parcels’ Formal Mapping As Streets Carries No Substantial Weight In The Implied Dedication Inquiry. .................. 59 2. The Fact That The City Did Not Formally Remap These Parcels And Expressly Dedicate Them As Parks In No Way Foreclosed Their Implied Dedication As Parks. .............................. 62 3. A Few Arcane Government Documents Purporting To Assign The Parks Department Only “Temporary” Oversight Of These Parcels Did Not Shield Them From Implied Dedication. ................ 64 TABLE OF CONTENTS (continued) Page iii III. The Mercer-Houston Dog Run Is Protected Parkland Because The City Has Actively Promoted Its Public Recreational Use For More Than Four Decades. ................................................................................................... 65 IV. The Proper Remedy Required Here Is An Injunction Against Further Construction And Annulment Of The City’s Approvals Of NYU’s Plan. ...... 69 A. SEQRA Required The City To Acknowledge And Account For The Status Of The Parcels As Protected Parkland. .................................. 69 B. The City’s Approvals Do Not Extend To Any Partial Construction NYU Might Now Pursue Because NYU’s Plan Rested On The Unlawful Alienation Of All Four Parcels. ............................................... 73 CONCLUSION ........................................................................................................ 76 TABLE OF AUTHORITIES Page iv Cases Allen v. Adami, 39 N.Y.2d 275 (1976) .......................................................................................... 60 Anderson v. Mayor of Wilmington, 137 A.2d 521 (Del. Ch. 1958) ............................................................................. 42 Anderson v. Town of Chili Planning Bd., 12 N.Y.3d 901 (2009) .......................................................................................... 72 Anderson v. Town of Chili Planning Bd., 59 A.D.3d 1017 (4th Dep’t 2009) ........................................................................ 72 Angiolillo v. Town of Greenburgh, 290 A.D.2d 1 (2d Dep’t 2001) ............................................................................. 40 Bd. of Park Comm’rs v. Shanklin, 199 S.W.2d 721 (Ky. 1947) ................................................................................. 43 Bronx Comm. for Toxic Free Schs. v. N.Y.C. Sch. Constr. Auth., 20 N.Y.3d 148 (2012) ............................................................................. 70, 71, 72 Chinese Staff & Workers Ass’n v. City of N.Y., 68 N.Y.2d 359 (1986) ................................................................................... 70, 71 Citizens for Preservation of Buehler Park v. City of Rolla, 230 S.W.3d 635 (Mo. Ct. App. 2007) ................................................................. 43 City of Buffalo v. Del., Lackawanna & W.R.R. Co., 190 N.Y. 84 (1907) .............................................................................................. 61 City of Cincinnati v. White’s Lessee, 31 U.S. 431 (1832) ........................................................................................ 38, 50 City of Cohoes v. Del. & Hudson Canal Co., 134 N.Y. 397 (1892) ............................................................................... 34, 38, 48 City of Louisville v. Hull, 292 So. 2d 177 (Miss. 1974) ................................................................................ 43 TABLE OF AUTHORITIES (continued) Page v City of N.Y. v. Zahav LLC, 106 A.D.3d 418 (1st Dep’t 2013) ........................................................................ 75 City of Palmetto v. Katsch, 98 So. 352 (Fla. 1923) ......................................................................................... 43 Comm. to Preserve Brighton Beach & Manhattan Beach, Inc. v. Planning Comm’n, 259 A.D.2d 26 (1st Dep’t 1999) .......................................................................... 67 Cook v. Harris, 61 N.Y. 448 (1875) ............................................. 1, 4, 5, 33, 34, 38, 48, 50, 62, 67 Dalton v. Educ. Testing Serv., 87 N.Y.2d 384 (1995) ................................................................................... 68, 76 Duclos v. Kelley, 197 N.Y. 76 (1909) .............................................................................................. 68 Dulberg v. Equitable Life Assurance Soc’y, 277 N.Y. 17 (1938) ....................................................................................... 68, 76 E&J Holding Corp. v. Noto, 126 A.D.2d 641 (2d Dep’t 1987) ......................................................................... 60 Flack v. Village of Green Island, 122 N.Y. 107 (1890) ....................................................... 35, 38, 43, 47, 49, 51, 65 Friends of Van Cortlandt Park v. City of N.Y., 95 N.Y.2d 623 (2001) ................................................................... 1, 23, 33, 39, 73 Greenco Corp. v. City of Va. Beach, 198 S.E.2d 496 (Va. 1973) .................................................................................. 43 Hart v. Blabey, 287 N.Y. 257 (1942) ............................................................................................ 56 Hechter v. N.Y. Life Ins. Co., 46 N.Y.2d 34 (1978) ............................................................................................ 60 TABLE OF AUTHORITIES (continued) Page vi Holdane v. Trustees of Cold Spring, 21 N.Y. 474 (1860) ....................................................................................... 35, 46 Hollywood, Inc. v. Zinkil, 403 So. 2d 528 (Fla. Dist. Ct. App. 4th Dist. 1981) ............................................ 43 Hotel Emps. & Rest. Emps. Union v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534 (2d Cir. 2002) ................................................................................ 56 Hunter v. Trs. of Sandy Hill, 6 Hill (N.Y.) 407 (1844) ............................................................. 34, 35, 38, 49, 51 Jacobs v. City of N.Y., 54 Misc. 2d 46 (Sup. Ct. N.Y. Cnty. 1966) ......................................................... 12 Kasper v. Miller, 156 P.2d 550 (Kan. 1945) ............................................................................. 43, 49 La Fayette v. Walker Cnty., 108 S.E. 218 (Ga. 1921) ...................................................................................... 43 Lazore v. Board of Trustees of Massena, 191 A.D.2d 764 (3d Dep’t 1993) .................................................................. 39, 40 London v. Art Comm’n of N.Y., 190 A.D.2d 557 (1st Dep’t 1993) ........................................................................ 75 N.Y. State Pub. Emps. Fed’n v. Albany, 72 N.Y.2d 96 (1989) ............................................................................................ 60 N.Y.C. Coal. to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337 (2003) ........................................................................................ 71 Newton v. City of Dunkirk, 121 A.D. 296 (4th Dep’t 1907) ............................................................................ 44 Niagara Falls Suspension Bridge Co. v. Bachman, 66 N. Y. 261 (1876) ............................................................................................. 36 TABLE OF AUTHORITIES (continued) Page vii People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394 (1937) ............................................................................... 36, 46, 50 People v. Callahan, 80 N.Y.2d 273 (1992) .......................................................................................... 69 People v. Loehfelm, 102 N.Y. 1 (1886) ......................................................................................... 35, 36 People v. Qoshja, 17 N.Y.3d 910 (2011) .......................................................................................... 69 Powell v. City of New York, 85 A.D.3d 429 (1st Dep’t 2011) .......................................................................... 40 Reid v. City of Bessemer, 139 So. 2d 592 (Ala. 1962) .................................................................................. 42 Riverkeeper, Inc. v. Planning Bd. of Southeast, 9 N.Y.3d 219 (2007) ............................................................................................ 72 Riverview Partners v. City of Peekskill, 273 A.D.2d 455 (2000) ..................................................................... 39, 47, 51, 67 Seaway Co. v. Att’y Gen., 375 S.W.2d 923 (Tex. Civ. App. 1964) ........................................................ 43, 49 Union Sq. Park Cmty. Coal., Inc. v. N.Y.C. Dep’t of Parks & Rec., 22 N.Y.3d 648 (2014) .......................................................................................... 67 Vill. of Benld v. Dorsey, 142 N.E. 563 (Ill. 1924) ................................................................................ 43, 49 Vill. of Westbury v. DOT, 75 N.Y.2d 62 (1989) ..................................................................................... 72, 75 Village of Croton-on-Hudson v. County of Westchester, 38 A.D.2d 979 (2d Dep’t), aff’d, 30 N.Y.2d 959 (1972) ...................... 1, 5, 37, 51 TABLE OF AUTHORITIES (continued) Page viii Walker Park Assoc. v. Mathews, 91 N.W.2d 703 (Iowa 1958) ................................................................................ 43 Waybro Corp. v. Bd. of Estimate, 67 N.Y.2d 349 (1986) ................................................................................... 21, 22 Williams v. Gallatin, 229 N.Y. 248 (1920) ............................................................................... 32, 33, 72 Winston v. Vill. of Scarsdale, 170 A.D.2d 672 (2d Dep’t 1991) ......................................................................... 44 Statutes CPLR § 5501(b) ....................................................................................................... 56 CPLR § 5602(a)(1)(i) ................................................................................................. 8 CPLR § 5712(c)(1) ................................................................................................... 56 N.Y. ECL § 27-415(7)(a)(ii) .................................................................................... 71 N.Y. Gen. City Law § 20(2) ............................................................................. 32, 60 N.Y.C. Admin. Code § 5-430 .................................................................................. 59 N.Y.C. Charter § 2701(b)(1) .................................................................................... 21 N.Y.C. Charter § 2800 ............................................................................................. 21 N.Y.C. Charter § 2800(d) ........................................................................................ 21 Other Authorities 11A Eugene McQuillin, The Law of Municipal Corporations § 33:3 (3d ed. 2014) ........................................................................................................ 42 11A Eugene McQuillin, The Law of Municipal Corporations § 33.30 (3d ed. 1991) ........................................................................................................ 44 TABLE OF AUTHORITIES (continued) Page ix 11A Eugene McQuillin, The Law of Municipal Corporations § 33:33 (3d ed. 2014) ........................................................................................................ 41 11A Eugene McQuillin, The Law of Municipal Corporations § 33:46 (3d ed. 2014) ........................................................................................................ 41 26 C.J.S. Dedication § 17 (2015) ............................................................................. 41 43 N.Y. Jur. 2d Dedication § 18 (2d ed. 2015) ........................................................ 41 43 N.Y. Jur. 2d Dedication § 27 .............................................................................. 41 M.B. Elma, Revocation or withdrawal of dedication by grantees or successors in interest of dedicator, 86 A.L.R.2d 860, 1a .................................... 37 N.Y. Op. Att’y Gen. (Inf.) No. 2011-7, 2011 WL 3102603 .................................... 40 N.Y. Op. Att’y Gen. (Inf.) No. 84-42, 1984 WL 186576 ........................................ 40 Rules CPLR 5522(a) .......................................................................................................... 69 Constitutional Provisions N.Y. Const., Art. 14, § 1 .......................................................................................... 42 N.Y. Const., Art. 14, § 4 .......................................................................................... 42 PRELIMINARY STATEMENT At stake in this case is the continued vitality of the Public Trust Doctrine—a longstanding precept that safeguards public parkland from alienation in recognition of its unique value as a recreational haven for our children, families, and communities. Under this doctrine, when the government leads the public, over time, to believe that a parcel of public property is a park, that site is dedicated, by implication, as a park. And all parkland, whether dedicated through long continuous use or through an express government act, can only be alienated and used for another purpose with “the direct and specific approval of the State Legislature, plainly conferred.” Friends of Van Cortlandt Park v. City of N.Y., 95 N.Y.2d 623, 632 (2001). In an unbroken line of authority stretching back 140 years, New York courts have looked to “the long-continued use of the land for park purposes” as a touchstone of implied dedication. Vill. of Croton-on-Hudson v. Cnty. of Westchester, 38 A.D.2d 979, 980 (2d Dep’t 1972), aff’d, 30 N.Y.2d 959 (1972). The government’s “intent” to dedicate parkland is “manifest” by its “acts and declarations” to the public—foremost among them being the act of allowing and encouraging the public to use the site for park purposes continuously over time. Cook v. Harris, 61 N.Y. 448, 454 (1875). This legal standard holds government officials to the consequences of their public acts, protects settled expectations 2 about park space, and preserves the State Legislature’s traditional role as the sole authority that can permit parks to be alienated. Even though the parcels at issue here admittedly have been used as parks for decades at the City’s invitation, the Appellate Division reversed the trial court’s decision that three of the parcels thus became dedicated as parkland. If left intact, its ruling would sharply curtail the Public Trust Doctrine by effectively obliterating implied dedication as a mechanism for protecting public space. New York City officials have actively encouraged the public to use this land—precious open space in the midst of crowded Greenwich Village—for recreational purposes for many years. The City originally obtained the four parcels, clustered in the neighborhood where Respondent New York University (“NYU”) built its original campus, as part of Robert Moses’s plans to construct an expressway through the heart of lower Manhattan, and nominally designated them as “streets” in the 1950s. But the City later abandoned that project, and in the intervening decades, it has allowed and encouraged local residents to use these four sites for public recreational purposes to play, garden, walk dogs, and enjoy time outdoors. Indeed, City officials have spent substantial public funds on improving and maintaining these parks, choreographed and attended official public dedication ceremonies, and installed City Parks Department signage and touted them as “parks” on its website for all to see. 3 In 2010, however, NYU unveiled plans for a sweeping, two-million square foot expansion smack in the middle of this historic neighborhood. NYU wanted the parcels for its own use to facilitate its massive construction project: permanent ownership of one site and 20-year easements to use the others during construction. Over the objections of the local Community Board, hundreds of NYU faculty, leading historic preservation groups, and the district’s state assemblywoman, the City rammed through approval of this controversial project. In signing off on NYU’s demands, the City turned a blind eye to the protected status of these parks, and neither NYU nor the City sought (let alone obtained) the requisite prior approval from the State Legislature to alienate them. After a thorough review of the voluminous evidence presented in this Article 78 proceeding, the trial court found that “long continuous [use] of the four parcels as parks” had “trigger[ed] the notion of a ‘public trust.’” A.1:48-58 (Trial Op. at 35-45). It held that decades of long continuous public use—with the enthusiastic approval and support of City officials—resulted in the implied dedication of three of these parcels as parkland. As to the fourth parcel (the site of the Mercer- Houston Dog Run), the trial court found that this parcel too had been used for public recreational purposes for decades, but inexplicably found it not to be parkland, simply because, more recently, a community group has been permitted to 4 maintain this park as a dog run open to any member of the public for a nominal fee. The Appellate Division took no issue with any of these factual findings. Instead, it eviscerated the law of implied dedication, while paying only lip service to this Court’s precedents. Critically, the Appellate Division gave exceedingly short shrift to the long continuous public use of these four parcels as parks. While its reasoning is terse, at best, the court appeared to believe that the City’s initial designation of these four parcels as “streets” on the City Map in 1956, and its failure later to formally change their designation to “parks”—a move that City officials informed the public they were “willing to undertake” with neighbors’ “consent” but NYU then blocked as the lone objector—somehow precluded their implied dedication as parkland. A.6:2415-16. The Appellate Division also asserted that management of the parcels by the City Parks Department was “temporary”—an apparent reference to a few arcane government documents never publicized by the City that purported to reserve hypothetical “rights” to use these parks as “streets” in the future, even though they never became streets and, now, never will. Exactly the opposite occurred here: the only intent that the City’s “acts and declarations” ever “manifest[ed]” to the public over the course of several decades was that it openly and officially promoted the continuous use of these four sites as parks. See Cook, 61 N.Y. at 454. 5 The legal standard on which the Appellate Division’s decision rests is fundamentally flawed and contrary to nearly a century and a half of precedent, from Cook through Croton-on-Hudson. It would so dramatically circumscribe the scope of implied dedication as to render the doctrine a virtual nullity. If mapping is dispositive, as the Appellate Division suggested, then it is hard to see how parkland could ever be impliedly dedicated. Designation on a city map as a park is express dedication, and by the Appellate Division’s logic, the failure to so designate a parcel of land would negate implied dedication across the board. And a few arcane government documents speak, if at all, only to machinations within the local government. They say nothing about what City officials conveyed to the public at large about the park status of these sites. Implied dedication hinges on just that: It asks what the public came to understand from actually using these parcels as parks continuously over many years, with open encouragement and support from those same City officials. That is how the City “manifests” its “intent” to impliedly dedicate parkland—through its “acts and declarations” to the public—not through its arcane communications. Cook, 61 N.Y. at 453-54. Here, the City has not only permitted, but openly supported, the public’s long continuous use of these four sites for park purposes over several decades. That makes for a textbook case of implied dedication. 6 All four of the parcels that the City turned over to NYU acquired enduring protection as parks, and the City lacked authority to alienate them in service of NYU’s expansion plan without the State Legislature’s prior approval. Thus, the Appellate Division’s decision should be reversed, and judgment should be entered that all four of these sites are dedicated parkland protected from alienation by the Public Trust Doctrine. Accordingly, this Court should reinstate the injunction crafted by the trial court. In addition to enjoining NYU’s use of these sites unless and until the State Legislature alienates the parcels, this Court should annul the City’s approvals of NYU’s plan, because those approvals were based on a legally deficient Final Environmental Impact Statement for the project that never accounted for the status of these parcels as dedicated parks. In addition, the City approved NYU’s plan as an integrated whole, and building only a portion of that plan would so materially differ from the approved project that new approvals must be required. Hence, this Court should also enjoin NYU from building only a part of its City-approved plan, as it announced it would do after the trial court’s ruling, unless and until it secures municipal approvals for that new plan. 7 QUESTIONS PRESENTED 1. Whether the correct legal standard for implied dedication of a parcel as a park centers on the “manifest intent” that the government conveyed to the public through its public “acts and declarations” in allowing and encouraging the long continuous public use of the parcel as a park, and not on factors that establish express dedication (such as formal mapping) or that involve arcane government communications never made known to the public at large? The Appellate Division incorrectly answered—“No.” 2. Whether the three parcels at issue here that the trial court found to be impliedly dedicated as parks—Mercer Playground, LaGuardia Park, and LaGuardia Corner Gardens—became dedicated parkland because the City held them out to the public as parks for decades; officially identified, funded, and promoted them as parks; and allowed and encouraged the public to use them for recreational purposes for decades? The Appellate Division incorrectly answered—“No.” 3. Whether the fourth parcel at issue here—the Mercer-Houston Dog Run— that the trial court recognized has also been used for public recreational purposes for decades but declined to find to be dedicated parkland, simply because, more recently, a community group has been permitted to maintain this park as a dog run 8 open to any member of the public for a nominal fee, should also be held to be a park by implied dedication? The Appellate Division incorrectly answered—“No.” 4. Whether the appropriate remedy here for any violation of the Public Trust Doctrine would be to annul the City’s approvals of NYU’s project and enjoin any construction from going forward, because: (a) the City violated the State Environmental Quality Review Act (“SEQRA”), in that the City did not account for the protected park status of the parcels under the Public Trust Doctrine in preparing the environmental impact analysis of this project, and (b) NYU cannot proceed piecemeal, as it announced it would after the trial court’s decision, with construction of one component of its plan, given that its plan was presented to and approved by the City as an integrated whole, and whatever NYU now proposes to build is so materially different that it will require new approvals from the City? The Appellate Division did not reach this issue. JURISDICTION CPLR § 5602(a)(1)(i) confers jurisdiction to hear this appeal because the Article 78 proceeding originated in Supreme Court, and the October 14, 2014 order of the Appellate Division finally determined the action. A.1:3-9. Petitioners moved this Court for leave to appeal on November 12, 2014. This Court granted leave to appeal on February 24, 2015. A.1:1-2. 9 PRESERVATION OF ERROR On the City’s appeal, joined by NYU, from the judgment entered by the trial court, the Appellate Division rejected Petitioners’ argument (Petrs. App. Div. Br. 20-46) that the trial court correctly held in part for Petitioners on the First Cause of Action in the amended Article 78 petition, because these parks had been impliedly dedicated through long continuous public use. On cross-appeal, the Appellate Division rejected Petitioners’ argument (Petrs. App. Div. Br. 46-48; Petrs. App. Div. Reply 4-16) that the trial court incorrectly ruled one of these four parks not to be dedicated parkland. Additionally, the Appellate Division rejected Petitioners’ argument (Petrs. App. Div. Br. 53-57; Petrs. App. Div. Reply 22-27) that the trial court, finding no SEQRA violation, incorrectly held for Respondents on the Fourth Cause of Action in the amended Article 78 petition. Because of those holdings, the Appellate Division effectively did not reach Petitioners’ further arguments (Petrs. App. Div. Br. 57-59; Petrs. App. Div. Reply 27-30) that, because NYU presented and obtained approval for NYU’s plan as an integrated whole, any project NYU now pursues would differ materially from the Sexton Plan as the City approved it, warranting an injunction against any construction absent a new review and approval process. 10 STATEMENT OF FACTS A. The Sexton Plan New York City’s Greenwich Village is a unique historic neighborhood located in crowded downtown Manhattan. Neighbors describe the “world-famous character of Greenwich Village” as a “unique mix” of small town charm, historic qualities and diverse residents, providing a “prized cultural backdrop.” A.3:1048 (letter from Community Board 2 to DCP); A.5:1692-94; A.4:1252-56 (testimony of community members at public hearing). Neighbors and visitors alike value the balance of “spaciousness, air-flow, and visual diversity.” A.4:1344-46 (testimony of community member at public hearing). In 2010, NYU unveiled the “Sexton Plan”—an initiative to dramatically expand NYU’s campus in the heart of Greenwich Village by adding four new university buildings to be built over 20 years of construction. The Plan “would pile almost two million square feet of additional building space . . . on top of two densely-developed” and largely residential “Superblocks.” A.4:1522 ¶ 8 (Angotti Aff.).1 Those Superblocks, initially formed on public land through a publicly- funded urban renewal project, stretch west-east from LaGuardia Place to Mercer Street. A.1:18 (Trial Op. at 5); A.2:195-99, 285, 381 (EIS). The North Superblock 1 Citations styled “A.X:Y” refer to Petitioners’ Appendix, Volume X, Page Y. 11 spans West 3rd Street to Bleecker Street, and the South Superblock reaches from Bleecker to Houston Street. Under the Plan, NYU would construct two new buildings—the Mercer Building and the LaGuardia Building—in the North Superblock. In the South Superblock, along Mercer Street, NYU would replace its Coles Gymnasium with a “Zipper” complex that would have multiple “tower components” up to 275 feet tall. A.3:692-94 (CPC Lead Report). NYU would also replace an existing supermarket with another large building, the Bleecker Building, along Bleecker Street. A.2:211 (EIS); A.3:692-94 (CPC Lead Report). Only about one-third of the Sexton Plan’s above-ground development would be designated for academic use. See A.3:691-94 (CPC Lead Report). B. The Four Parks The Sexton Plan required the City to turn over four City-owned parcels of land in the two Superblocks for NYU’s use: Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens, and Mercer-Houston Dog Run (together, the “four parks”). See A.4:1544-46 (maps comparing the neighborhood today, with the four parks, and the proposed changes under the Sexton Plan). The City had initially designated these parcels as “streets” on the City map in 1956 as part of a short- lived plan to build the Lower Manhattan Expressway as “a broad traffic roadway through Washington Square Park” in the Village. See Jacobs v. City of N.Y., 54 12 Misc. 2d 46, 49 (Sup. Ct. N.Y. Cnty. 1966); A.3:686 (CPC Lead Report describing history). The City abandoned those plans in 1969 without ever opening the parcels as streets, and the public never used them as streets. Instead, with the active encouragement of the City, its Department of Parks and Recreation (“Parks Department”) took on oversight of these parcels from the Department of Transportation (“DOT”), and the public has used them as much-needed park space, for recreational purposes, over the several decades since then. A.1:29 (Trial Op. at 16); 35-36 (Trial Op. at 22-23); A.8:3135 ¶ 8 (Maddow Aff.), 3192 ¶¶ 13-14 (Lynn Aff.). 1. Mercer Playground Located on the east side of the North Superblock, Mercer Playground is a paved park where children roller skate, ride bikes, skateboard, and play in water fountains (A.1:33 (Trial Op. at 20); A.5:2023-24 (description of Mercer Playground on Parks Department webpage))—all activities that children have few opportunities to pursue elsewhere within the surrounding densely-packed city blocks. The Parks Department designed and built the playground in the 1990s, using hundreds of thousands of public dollars appropriated in the City’s capital budget. A.8:3171 (Mercer Playground Opening Day Brochure). The City officially dedicated the park at a 1999 public ceremony attended by local elected 13 officials and presided over by Henry Stern, the City’s long-time Parks Commissioner. At that public ceremony, the City announced that, although DOT had granted the Parks Department a permit to use the site on April 18, 1995 (A.6:2497 (permit)), the site was then “formally transferred to Parks,” giving the Parks Department authority over the parcel. Id. As the publicly-disseminated program for the event stated: In 1995 the Department of Transportation gave Parks a permit to use the site. Two years later the site was formally transferred to Parks, and plans were made for capital improvements. The playground construction was funded jointly by Council Member Kathryn Freed and LMNO(P) at a cost of $340,000. A.1:32 (Trial Op. at 18) (emphasis added); A.8:3081. City Council Member Kathryn E. Freed, who represented Greenwich Village on the New York City Council, allocated those discretionary City capital funds because she understood that Mercer Playground was—and would remain—dedicated parkland. A.1:32 (Trial Op. at 19); A.8:3167 ¶ 11 (Freed Aff.). In light of the 1999 formal dedication ceremony, Parks Department correspondence in mid-1995 that it was “willing to undertake” efforts to remap the area as parkland and take jurisdiction if neighboring landowners “consent[ed],” left “no doubt” in the minds of the public that the site was a park and has remained so ever since. A.1:33 (Trial Op. at 20); 14 A.8:3184 ¶ 5 (Papadeas Aff.); see also A.8:3154 ¶ 3 (Steed Aff.); A.6:2415-16 (letters from Parks Department); A.8:3259 (same). Since 1999, the Parks Department has actively and conspicuously maintained and promoted Mercer Playground as a public park. The Playground features numerous Parks Department signs and insignia (A.1:30-31, 49 (Trial Op. at 17-18, 36)), and it is listed as a “park” on the Parks Department’s website. Under the Sexton Plan, the City would turn Mercer Playground over to NYU to use. NYU would receive construction, access, and utility easements running for the next 20 years to stage construction of the LaGuardia and Mercer Buildings. A.1:28 (Trial Op. at 15); A.3:702, 737 (CPC Lead Report), 1014 (ULURP Application); A.2:235 (EIS), 612 (letter from Community Board 2). During that time, the park would be completely unavailable for public use. After construction, a slice of the playground is to be officially transferred to the Parks Department and remapped as a “park” for a smaller tricycle garden that is to be shrouded in the shadows of the Mercer Building. The remainder of the area would be permanently ceded to NYU. A.2:612. 2. LaGuardia Park Located on the northwest stretch of the North Superblock, LaGuardia Park has served as an open recreational and meeting place along the east side of LaGuardia Place since the mid-1980s. A.1:36-37 (Trial Op. at 23-24); 15 A.8:3108 ¶¶ 3-4 (Hearn Aff.). The park features landscaped terrain, mature trees, planted ivy, and a statue of Mayor Fiorello La Guardia that was dedicated at an official public ceremony in the mid-1990s attended by then-Mayor Rudy Giuliani, his three predecessors (Mayors Dinkins, Koch, and Beame), and other elected officials. A.1:36 (Trial Op. at 23); A.6:2026-28 (Parks Department Webpage, “Fiorello La Guardia Statue”). The Parks Department website promotes the park, and notes that the statue’s dedication plaque “is part of Parks’ Historical Signs Project and can be found posted within the park.” A.6:2026. The community group that maintains the area as a public park, Friends of LaGuardia Place, collaborated with the City to develop Adrienne’s Garden, a new toddler playground located within the park. A.1:36-37 (Trial Op. at 23-24); A.3:1090 (Manhattan Borough President Recommendation). Over the years, LaGuardia Park has received hundreds of thousands of dollars in City capital funds. A.8:3103 ¶ 11 (Gerson Aff.), 3168-69 ¶¶ 16-23 (Freed Aff.).2 2 The parties disputed whether LaGuardia Park is part of the “Greenstreets” program, in which the Parks Department manages property under DOT’s jurisdiction. Respondents pointed to a 2007 memorandum of understanding between the Parks Department and DOT listing “La Guardia Place Bet. West Houston St. and Bleeker [sic] St.” as part of the “Greenstreets” program (A.6:2420, 2444), but LaGuardia Park is not in that stretch of property (A.4:1544). Petitioners argued that although a 2009 amendment to the 2007 MOU purported to add to the “Greenstreets” program “the East side of LaGuardia Place between Bleeker [sic] St. and West 3rd Street,” where LaGuardia Park is located, a founding member of Friends of LaGuardia Place (Cont’d on next page) 16 Under the Sexton Plan, the public would be excluded from LaGuardia Park and Adrienne’s Garden for the next two decades, and NYU would receive 20-year construction, access, and utility easements to stage construction of the LaGuardia and Mercer Buildings in that location. A.1:28 (Trial Op. at 15); A.2:204 (ULURP Application). The plan provides for official transfer of the land to the Parks Department, remapping the site as a “park,” and construction of a new play garden there at some unspecified time after construction is complete. A.1:28 (Trial Op. at 15); A.2:612 (Community Board 2 letter); A.2:204, 483 (EIS). 3. LaGuardia Corner Gardens LaGuardia Corner Gardens sits at the northwest corner of the South Superblock, at LaGuardia Place and Bleecker Street. Since the early 1980s, the community has used the Gardens to grow herbs, fruits, and vegetables, and to tend to hundreds of varieties of plants and flowers. A.8:3120 ¶ 12 (Horan Aff.); A.6:2054. The Gardens also serves as a quiet and open-air space to host numerous (Cont’d from previous page) “was never aware that LaGuardia Park was part of Greenstreets,” and that “the City has never publicly identified LaGuardia Park as being part of the Greenstreets program.” A.1:38 (Trial Op. at 25); A.8:3110 (Hearn Aff.); see A.6:2420-23 (2007 “Greenstreets” MOU), 2491 (2009 Amendment to “Greenstreets” MOU). The trial court concluded that it did not have to resolve this issue because the MOU was entered into so many years after the City held its mid-1990s dedication ceremony. See infra, at p. 25. Indeed, for implied dedication purposes, by all accounts, LaGuardia Park has been held out and used by the public as a park for decades. 17 community and school events. A.6:2054. It is open to the public for recreational use during the plant-growing months of April through November, and closed in the winter to protect dormant plants from potential harm and to support the recreational use of the Gardens. A.6:2055. As the trial court found, for decades, the Parks Department has managed and administered the Gardens as part of its GreenThumb community garden program, promoted the Gardens as a “park” on its website, placed signs at the Gardens bearing Parks Department insignia, and directed the public to call it with any concerns. A.1:39, 49 (Trial Op. at 26, 36); A.8:3097-99. During his tenure as Parks Commissioner, Stern told local officials that the Parks Department was “already treating” the Gardens as a dedicated park. A.8:3144-45 ¶ 19(ii) (Stern Aff.). Some Parks Department employees “believed that the garden had been formally transferred” to the Parks Department because of the Department’s “long history of working with the community to maintain the garden.” A.1:40 (Trial Op. at 27); A.8:3144-45 ¶ 19(ii) (Stern Aff.). In 1981, DOT leased the area to the nascent LaGuardia Corner Gardens group, stating that the property “will not be needed for street or departmental purposes at this time or in the foreseeable future.” A.8:3257, 3267-71. The group sporadically renewed the lease with the City’s Department of General Services until at least 1993. A.8:3264-66. Then, starting in 1996, the Gardens received a 18 “GreenThumb Garden License” issued by the Parks Department. A.8:3260; see also A.8:3255-56 (memorandum of understanding between the Parks Department and the Gardens providing for “renew[al] on an annual basis”).3 A January 7, 2009 license—generated decades after the community began using the Garden as public recreational space (and after NYU began devising the Sexton Plan in 2007, A.5:1314, 1563, 1609, 1611 (testimony from NYU officials))—confirmed the Gardens is “managed and administered by the GreenThumb Program of the New York City Department of Parks and Recreation,” and that “no development is currently planned” on the site. A.1:40 (Trial Op. at 27); A.6:2477.4 In other words, for the past two decades, the message conveyed to the public has been that 3 The record, either before the trial court or on appeal, does not include evidence relating to leases or licenses in force from 1982-1983, 1986-1988, 1991-1992, 1994-1995, 1997-2009, or after 2010. See A.8:3251-71. 4 The trial court rejected the City’s argument that DOT had assumed control of the parcel. See infra, Point II.B.3. The parties also disputed whether LaGuardia Corner Gardens is part of the “Greenstreets” program. Respondents pointed to the 2007 MOU between the Parks Department and DOT, stating that it covered LaGuardia Corner Gardens. A.1:40-41 (Trial Op. at 27-28). Petitioners offered an affidavit from a board member of the Gardens explaining that the MOU only covered the Time Landscape, located on LaGuardia Place, next to the Gardens, and that the Parks Department’s website lists Time Landscape (but not the Gardens) as part of the “Greenstreets” program. A.1:41 (Trial Op. at 28); see A.8:3118-20 (Horan Aff.); A.6:2420-76 (2007 MOU). Again, the trial court decided that this dispute was irrelevant for purposes of implied dedication since, by all accounts, the Gardens has been held out and used as a park for decades. 19 this parcel is within the Parks Department’s “manage[ment].” And community residents more recently raised concern that the Sexton Plan would harm the Gardens, DOT assured residents that it “has no plans at the present time to change the current usage” of the park. A.8:3239 (letters from DOT to community members). Under the Plan, LaGuardia Corner Gardens would be covered for several years during construction of the new adjacent Bleecker building with a shed that would substantially limit sunlight. A.2:290-91; A.3:710. After construction is completed, the Bleecker Building would permanently block the sunlight, making it impossible to grow many of the plants currently grown in the garden. A.1:28-29 (Trial Op. 15-16); A.2:242, 267. 4. The Dog Run The Dog Run is located on the east side of the South Superblock on a site that has been continuously used for public recreational purposes for more than 40 years. A.1:42 (Trial Op. at 29); A.4:1544; A.8:3134 ¶ 3 (Maddow Aff.), 3146- 47 ¶ 19(iv) (Stern Aff.). The site was first used as a sandlot ball field (A.2:612; A.5:1911), and since 1981, has been home to a fenced-in dog run. NYU initially constructed the Dog Run as part of a 1979 agreement with the City that allowed NYU to build Coles Gymnasium in the South Superblock, in exchange for maintaining the surrounding area for public park use, including what became this 20 Dog Run. See A.1:42 (Trial Op. at 29); A.3:761; A.8:3313 ¶ 11 (Brown Aff.).5 Since 1981, the Dog Run has been operated by the Mercer-Houston Dog Run Association and open to any member of the dog-owning public who pays a nominal $60 annual membership fee ($30 for senior citizens). A.1:42 (Trial Op. 29). Under the Sexton Plan, NYU will permanently take over the site where the Dog Run is now located. A new dog run is supposed to be opened, at a smaller, less desirable location to the west of its current location. A.1:29 (Trial Op. 16); A.2:489 (EIS); A.3:1529 ¶ 23; A.5:1990. C. The City’s Approval of the Sexton Plan Because the City and NYU never acknowledged that each of these four parcels is protected parkland, they did not seek the New York State Legislature’s authorization to alienate these parks, as required by the Public Trust Doctrine. Instead, NYU applied to the City’s Department of City Planning (“DCP”) for approval of the Sexton Plan under New York City’s Uniform Land Use Review 5 The City previously permitted the public to use the entirety of the South Superblock for public recreation. Consistent with community preferences, NYU agreed in 1979 to build and maintain a children’s playground and a reflecting garden north of the Dog Run. In other words, NYU was to stand in the shoes of the City and continue the use of this area for public recreational purposes, including a dog run. Those other areas have been permanently closed since 2004, however, because NYU failed to maintain them. A.5:3183 ¶ 2 (Papadeas Aff.). 21 Procedure (“ULURP”). A.3:977-78. The plan provided for large-scale development in a residential neighborhood and on City-owned land. Among other requests, NYU sought changes to the City Map, zoning map amendments that would change largely residential districts into commercial districts, and an amendment to sections of the City Zoning Resolution “to allow a park boundary to be treated as a wide street for purposes of zoning.” A.3:998. NYU also sought a special permit to waive applicable height, setback, and distance regulations. Id. After DCP concluded that the plan might have 19 different types of significant adverse impacts on the quality of the environment—including “land use, zoning, and public policy” and “publicly accessible open space”—it directed NYU to prepare an Environmental Impact Statement (“EIS”), as required by SEQRA. A.6:2176-77. The EIS did not acknowledge that any of the four parks were protected parkland under the Public Trust Doctrine and never analyzed the impact of alienating protected parkland. See, e.g., A.2:193-679 (EIS). The local Community Board for Greenwich Village unanimously rejected the Sexton Plan. A.3:1048-70.6 The Community Board found that the plan 6 The Community Board’s members “reside or have a business, professional or other significant interest” in this historic neighborhood. Waybro Corp. v. Bd. of Estimate, 67 N.Y.2d 349, 354 (1986) (citing N.Y.C. Charter §§ 2701(b)(1), 2800). It holds hearings, “prepare[s] plans for the improvement and development of its district and cooperate[s] with and advise[s] city agencies and officials.” Id. (citing N.Y.C. Charter § 2800(d)). Thus, “[t]he Community (Cont’d on next page) 22 “threaten[ed] to destroy the very essence of the local neighborhood” and illegally alienated public parkland. A.3:1050. Despite the Community Board’s rejection of—and indeed, vehement public objection to—NYU’s plans, City agencies and the City Council eventually approved a slightly scaled-back version of it. A.6:2180-2201 (CPC approval), 2323-24 (City Council approval); see A.3:1071-75 (letter from NYU). Like NYU, the City never acknowledged that any of the four parks were protected parkland. Despite the strong opposition of NYU faculty, historic preservationists, community members and legislators, and without obtaining State Legislative authorization, the City approved the Sexton Plan and alienated the four parks to NYU. D. Article 78 Proceeding And Trial Court Decision In September 2012, Petitioners—a coalition of neighborhood groups, leading historic preservationists, an association of hundreds of NYU faculty, and local leaders—filed an Article 78 petition seeking declaratory and injunctive relief to annul approval of the Sexton Plan and enjoin NYU and the City from going forward with the project. Among other claims, the Petition alleged that the City (Cont’d from previous page) Board, although it acts in a purely advisory capacity, is . . . the means whereby those who live or work in an area affected by a proposal [for] land use are advised of pending proposals and given the opportunity to make known their views.” Id. at 355. 23 had violated the Public Trust Doctrine by unilaterally authorizing NYU to use the four parks for construction staging and other purposes, and that the City’s inadequate environmental impact analysis violated SEQRA. A.1:93-192 (Amended Verified Petition). The City Respondents, joined by NYU as a necessary third party, answered and moved to dismiss. In January 2014, the New York Supreme Court (Mills, J.) granted the Petition in part and denied it in part. The trial court held that the City had impliedly dedicated Mercer Playground, LaGuardia Park, and LaGuardia Corner Gardens as parkland, and that as such, the parcels could not be alienated without the express prior authorization of the State Legislature. A.1:51 (Trial Op. at 38). Accordingly, the trial court enjoined NYU from “beginning any construction in connection with the project that will result in any alienation of the parcels found . . . to be parkland, unless and until the State Legislature authorizes alienation of any parkland to be impacted by the project.” A.1:91 (Trial Op. at 78). The trial court explained that this Court’s Public Trust Doctrine precedents instruct “that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes.” A.1:43 (Trial Op. at 30) (quoting Van Cortlandt Park, 95 N.Y.2d at 630). The trial court recognized that land may become protected under the Public Trust Doctrine through either express or implied dedication. A.1:44 (Trial Op. at 24 31). Express dedication, the trial court explained, results from explicit written instruments, such as a city map designation or property deed or local law enactment; by contrast, implied dedication is established by long continuous use of the land as a park. A.1:44, 48 (Trial Op. at 31, 35). The trial court held that “long-continued use of the land for park purposes may be sufficient to establish dedication by implication, despite the fact that the property is still mapped for long-abandoned street use.” A.1:48 (Trial Op. at 35); see also A.1:30 (Trial Op. at 17). “To rule otherwise,” the trial court explained, “would effectively eliminate the distinction between express and implied dedication of parkland.” A.1:48 (Trial Op. at 35). Requiring a plaintiff proceeding under a theory of implied dedication to show express statements of intent to dedicate “would effectively superimpose the requirement of express dedication on the doctrine of implied dedication,” the trial court reasoned. A.1:47 (Trial Op. at 34). After closely examining the evidence concerning each individual parcel of land contested here, the trial court found that the “petitioners have certainly shown long continuous [use] of the four parcels as parks.” A.1:48 (Trial Op. at 35). The trial court further held that the “long continuous [use] of the four parcels as parks” had “trigger[ed] the notion of a ‘public trust.’” A.1:48-49 (Trial Op. at 35-36). Mercer Playground, LaGuardia Park, and LaGuardia Corner Gardens, the trial 25 court stressed, each bore additional indicia of the City’s “intent to treat the property as parkland where formal mapping as a park is absent.” A.1:49 (Trial Op. at 36). Those indicia included management by the Parks Department, Parks Department signage, and status as listed parks on the Parks Department website. A.1:49 (Trial Op. at 36). The trial court found it unnecessary to decide whether LaGuardia Park and LaGuardia Corner Gardens were part of the “Greenstreets” program, because the 2007 agreement was executed years after the City’s mid- 1990s public dedication of LaGuardia Park’s Fiorello La Guardia statue (A.1:37-38 (Trial Op. at 24-25)), and the 2009 MOU was signed “approximately 20 years after the LaGuardia Corner Gardens was created.” A.1:40-41 (Trial Op. at 27-28). The trial court also cast aside the City’s argument that LaGuardia Corner Gardens was not part of the Parks Department’s GreenThumb program, because the Gardens featured Parks Department GreenThumb signs and was listed as a GreenThumb participant on the Parks Department’s website. A.1:49 (Trial Op. at 36). Accordingly, the trial court held that these three parcels had been impliedly dedicated as parkland. A.1:48-51 (Trial Op. at 35-38). As to the Mercer-Houston Dog Run, the trial court recognized its long continuous public use as a park (A.1:43 (Trial Op. at 30)), but nevertheless ruled that it had not been impliedly dedicated as parkland, simply because it has been managed by a non-profit 26 association that charges a nominal fee for any dog-owning member of the public who wishes to use the dog run. A.1:42-43 (Trial Op. at 29-30). The trial court dismissed Petitioners’ other claims, including their SEQRA claim. A.1:66-69 (Trial Op. at 53-56). In doing so, the trial court did not address the necessary implication of its dedicated parkland ruling—namely, that the City’s SEQRA approval had been predicated on the illegal alienation of parks. The City and NYU appealed the trial court’s ruling that these three parcels had been impliedly dedicated as parkland. Petitioners cross-appealed the trial court’s ruling that the Dog Run had not been impliedly dedicated as parkland and its dismissal of Petitioners’ SEQRA claim. E. Appellate Division Decision On October 14, 2014, a four-justice panel of the Appellate Division, First Department (Sweeny, J.P., Renwick, Andrias, Clark, J.J.), reversed and dismissed the Article 78 petition in a cursory opinion. The panel acknowledged that “the City has allowed for the longterm continuous use of parts of the parcels for parklike purposes.” A.1:5 (App. Div. Opp. at 74). Yet, without explanation, the panel disregarded the critical significance of this factor under the precedents of this Court and prior Appellate Division case law, and concluded that “the City’s acts and declarations” had not “manifested a present, fixed, and unequivocal intent to dedicate any of the parcels at issue as public parkland.” Id. The panel noted that 27 “the parcels have been mapped as streets since they were acquired by the City,” had not been “de-mapped and re-dedicated as parkland,” and it further asserted, without explanation or citation, that “any management of the parcels by the Department of Parks and Recreation was understood to be temporary and provisional, pursuant to revocable permits or licenses.” Id. Finally, the panel claimed, without explanation or citation, that the public’s recreational use “was not exclusive, as some of the parcels (like LaGuardia Park) have also been used as pedestrian thoroughfares.” Id. Petitioners then sought leave to appeal from the whole of the Order and Judgment of the Appellate Division. On February 24, 2015, this Court granted the Petitioners’ motion for leave to appeal. A.1:1-2. 28 SUMMARY OF ARGUMENT New York courts have long identified two distinct mechanisms through which a parcel of land can become dedicated to a public use: express and implied dedication. Implied dedication, as distinct from express dedication, infers intent from conduct. The test for implied dedication of parkland is readily met by the public’s long continuous use of a parcel for recreational purposes—especially where, as here, government officials have not only acquiesced in but also actively promoted that use. This standard appropriately holds municipal officials to the consequences of their actions, respects the settled expectations of the public to be able to continue to access and use parkland, and preserves the State Legislature’s paramount authority under the Public Trust Doctrine to decide the fate of cherished parkland. Lower courts, state agencies, scholars, and sister states alike have recognized the signal importance of long continuous public use in establishing implied dedication. The Appellate Division essentially ignored the significance of long continuous public use in assessing whether the actions of a local government have dedicated a public parcel as parkland. Implied dedication would be toothless if it could be negated simply by the classification of the parcel on the City Map as something other than a park or the content of arcane government documents never made known to the public at large. The critical question is whether government 29 officials have manifested to the public, through their public acts and public declarations, an intent to dedicate the parcels as parkland, and decades of continuous public use at the government’s active invitation clearly suffices. By taking other factors—irrelevant to implied dedication or, at most, relevant only to express dedication—to trump undisputed long continuous use of the parcels for public recreation, the Appellate Division’s approach effectively eliminates implied dedication and gives municipal officials a blueprint for evading State Legislative review of parkland alienation. Under the correct legal standard, it is clear that the four parcels here are parks and can only be turned over to NYU with prior State Legislative authorization. The City has actively promoted the public’s actual and continuous use of these parcels ever since it abandoned plans to use them for an expressway many decades ago. The other considerations relied on by the Appellate Decision— the initial mapping of these parcels as “streets;” no formal re-mapping of them as parks, even though City officials informed the public they were “willing to undertake” that move with neighbors’ “consent” but NYU objected; and the existence of a few arcane documents purporting to have conveyed these parcels to the Parks Department for its “temporary” oversight, yet they remained parks for decades—cannot countermand the City’s public endorsement and facilitation of their use as public parks. 30 As to three of the parcels—Mercer Playground, LaGuardia Park, and LaGuardia Corner Gardens—this Court should reverse the Appellate Division’s ruling and reinstate the trial court’s judgment correctly applying the Public Trust Doctrine and recognizing these three sites to be dedicated parkland. As to the fourth parcel (the Mercer-Houston Dog Run), the trial court found that the City also actively promoted this parcel’s long continuous use for public recreational purposes. That factual finding is sufficient to render the parcel a park, notwithstanding the trial court’s concern that, more recently, a non-profit organization has been permitted to maintain and operate this park as a dog run open to any member of the public for a nominal fee. Accordingly, judgment should be entered recognizing this parcel to be dedicated parkland as well. The protected status of these parcels requires entry of an injunction against construction unless and until the Legislature authorizes alienation. It also requires annulment of the City’s approvals of NYU’s land use applications on either of two alternative grounds. First, the operative EIS failed to acknowledge that the parcels cannot be alienated without State Legislative authorization. Instead, the EIS assumed that the City could unilaterally alienate one of the parcels to NYU outright, turn over two other parcels to NYU for construction staging purposes for the next 20 years, and permanently intrude upon the fourth parcel—all without accounting for the protected status of these parcels as parks or even considering 31 alternatives that do not depend on such alienation. For this reason, the EIS was inadequate and erroneous as a matter of law, and the City’s approvals that relied on that EIS were arbitrary and capricious. Second, NYU presented its massive expansion proposal to the City as a comprehensive, integrated whole, and a central aspect of the plan is the alienation of all four of these parks in violation of the Public Trust Doctrine. If any one or more of these parcels were to be found to be dedicated parkland, NYU’s project would have to change accordingly. The scope, size, and construction schedule would be so materially different from the plan as evaluated and approved by the City as to require a new City approval process, consistent with ULURP, SEQRA, and other laws. Accordingly, this Court should reverse the Appellate Division’s ruling and enter judgment for Petitioners holding that all four of these parcels have been impliedly dedicated as parks. This Court should also reinstate the injunction crafted by the trial court. Furthermore, this Court should annul the City’s approvals of NYU’s plan premised on this illegal alienation and enjoin commencement of any construction unless and until the State Legislature grants its express approval to alienate these four parks. 32 ARGUMENT I. LONG CONTINUOUS PUBLIC USE IS THE KEY INDICATOR OF IMPLIED DEDICATION AS PARKLAND. This Court should reaffirm that long continuous public use, especially at the government’s invitation, is the paramount determinant of implied dedication as parkland. The Appellate Division erred in giving this factor short shrift, relying instead on considerations that might be relevant to whether a parcel has been expressly dedicated as parkland but not whether it has been impliedly dedicated to public use. The Appellate Division’s exceedingly cramped view of implied dedication cannot be reconciled with this Court’s precedents or the purposes of the Public Trust Doctrine. A. Long Continuous Public Use Is The Touchstone For Implied Dedication Under The Public Trust Doctrine. The Public Trust Doctrine protects New York’s cherished public parklands, the “pleasure ground[s] set apart for recreation of the public, to promote its health and enjoyment.” Williams v. Gallatin, 229 N.Y. 248, 253 (1920); see N.Y. Gen. City Law § 20(2) (granting cities power to acquire and sell property subject to the caveat that parkland is “inalienable”). Once dedicated, all parklands—large or small, in open country or dense city, made of grass or concrete—are “impressed with a public trust,” and can never be taken away from the public, not even temporarily, without “the direct and specific approval of the State Legislature.” 33 Van Cortlandt Park, 95 N.Y.2d at 632. “[N]o objects, however worthy, such as court houses and school houses, which have no connection with park purposes [are] permitted to encroach upon” a park, unless the State Legislature signs off. Williams, 229 N.Y. at 253. Under an unbroken line of precedent stretching from Cook to Croton-on- Hudson, even when a parcel has not been expressly dedicated to public use based on official documents—such as city maps and property deeds—it may be impliedly dedicated based on surrounding circumstances, including, most importantly, whether the owner (here, the City) allows and encourages long continuous public use. Such acts are especially important because, through them, the government manifests its intent to dedicate a parcel for the public use, and the public comes to expect the property to be available for that use. In that manner, a parcel is impliedly dedicated as parkland and, henceforth, protected by the Public Trust Doctrine. This Court’s precedents have made this point clear since Civil War days. In Cook, this Court explained that an implied dedication case, unlike an express dedication case, proceeds “without any writing.” 61 N.Y. at 453. There, in the absence of a written document establishing the status of a parcel of land held by a 34 private landowner, the Court invoked the “doctrine of estoppel in pais.” Id.7 Concluding that the land at issue had been dedicated and accepted for use as a public highway, the Court held that dedication of a parcel to public use and its acceptance by the citizenry for that function can be proved by long continuous use: The dedication and acceptance may be proved by the acts of the parties, and the circumstances of the case. The owner’s acts and declarations should be such as to manifest an intention to abandon or devote his property to the specific public use. In the case of a highway, the public must accept the highway, and before such acceptance the dedication may be revoked. Such acceptance may be proved by long public use, or by the positive acts of the public authorities in recognizing and adopting the highway. No particular length of time is essential to make a dedication valid and irrevocable. Id. at 454. The Court emphasized that “the public use[]” of the disputed parcel from 1853 to 1867 “as a public highway, so far as appears, without any objection from any one” was a sine qua non in establishing its dedication to public purposes. Id. at 453-54. The Court also observed that officials had actively promoted that public use through investment of public funds in maintenance and improvement of the parcel, which officials had “kept . . . in repair at the public expense.” Id. at 454. The Cook Court cited as authority Hunter v. Trustees of Sandy Hill, 6 Hill 7 Implied dedication of land through public use under estoppel in pais “rests upon the principle that the owner is estopped from revoking his offer after the public have acted on it for so long a period that it would be a fraud upon them if he were permitted to do so.” City of Cohoes v. Del. & Hudson Canal Co., 134 N.Y. 397, 402 (1892). 35 407, 412-13 (1844), an implied dedication case in which the Supreme Court of Judicature had reasoned that “th[e] long continued and uninterrupted use of the premises by the public . . . furnishe[d] . . . abundant evidence” of dedication, applying the equitable and legal precept that “it would be dishonest, immoral or indecent . . . to reclaim at pleasure property which has been solemnly devoted to the use of the public.” Id. at 412-413. Cook also relied on Holdane v. Trustees of Cold Spring, 21 N.Y. 474 (1860). In Holdane, this Court recognized that “[t]he dedication and acceptance are to be proved or disproved by the acts of the owner, and the circumstances under which the land has been used.” Id. at 477. While the Court there observed that an “owner’s acts and declarations should be deliberate, unequivocal and decisive,” that is consistent with “manifest[ing] . . . intention” to dedicate by allowing long continuous public use. Id. Indeed, in Flack v. Village of Green Island, 122 N.Y. 107 (1890), this Court confirmed just that, explaining that “dedication may be established by acts on the part of the owner and the public, unequivocal in their character,” and, that, in particular, “‘[l]ong continued and uninterrupted use of land by the public, however, furnishes strong evidence of dedication.’” Id. at 114 (citing Hunter, 6 Hill 407). This Court reiterated the significance of “long public use” in People v. Loehfelm, 102 N.Y. 1 (1886). There, the Court found that a parcel had been 36 impliedly dedicated for use as a highway because “the public used and traveled” the parcel “to its full width except where prevented by obstructions.” Id. at 4. This conclusion, the Court explained, rested on the “rule . . . that the acceptance may be proved by long public use or by the acts and conduct of the public authorities recognizing and adopting the highway.” Id. at 3-4. Similarly, in People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394, 401-02 (1937) (“B&Q”), this Court again emphasized “long public use,” occurring without any “objection” from the owner, as the central basis for implied dedication. Implied dedication, the Court explained, required both dedication— that is, “a setting apart and a surrender to the public use of the land by the proprietors”—and acceptance. Id. at 401 (quoting Niagara Falls Suspension Bridge Co. v. Bachman, 66 N. Y. 261, 269 (1876)). Because “[c]rowds of people” had used the parcel at issue in B&Q for purposes other than as a street “for many years . . . without objection on the part of the city,” the Court held that the parcel had not been impliedly dedicated as a public highway: “What the city has failed to do is even more significant than what it has done affirmatively.” Id. at 402. New York courts readily applied this framework for implied dedication, initially developed in public highway cases, to public parks.8 In Croton-on- 8 In harmony with Croton-on-Hudson, many other states have applied precedents concerning the implied dedication of roads to the implied dedication of (Cont’d on next page) 37 Hudson, this Court affirmed without opinion a Second Department decision holding that a parcel in Westchester County had been impliedly dedicated as parkland. 38 A.D.2d 979, aff’d, 30 N.Y.2d 959 (1972).9 The Second Department held that “specific legislative authorization” was required to alienate the parcel because “the long-continued use of the land for park purposes constitutes a dedication and acceptance by implication.” Id. at 980. While the parcel had been “acquired for public park purposes by a special borrowing,” the deed did not restrict its use for park purposes, and the local government had not formally dedicated the land as a park. Id. Despite this arguably contrary evidence, the Second Department nevertheless assigned signal importance to the public’s “long- continued use” of the land and held it was fully protected by the Public Trust Doctrine. See id. (Cont’d from previous page) parkland. See M.B. Elma, Revocation or withdrawal of dedication by grantees or successors in interest of dedicator, 86 A.L.R.2d 860, 1a (“At early common law, lands could only be dedicated for a common highway. Presently, dedication may be made for . . . parks.”). 9 Westchester County sought leave to appeal, and the parties fully briefed the implied dedication question, among others. Compare Br. of Def.-Appellant 16- 20, with Br. of Pl.-Resp. 16-33, in Croton-on-Hudson, 30 N.Y.2d 959 (1972). This Court’s affirmance of the Second Department’s judgment therefore suggests agreement with the Second Department’s decision and the legal standard it applied. 38 This focus on the public’s long-continued use, especially when it is actively encouraged by government officials, serves substantial public and governmental interests. First, it holds government officials to the consequences of their actions—including their investment of public funds in not only allowing but affirmatively encouraging a particular public use. See Flack, 122 N.Y. at 116 (public expenditure on maintenance and improvement supported implied dedication); Cook, 61 N.Y. at 454 (same). When officials decide to make a parcel available to the public for recreational use and encourage that use for decades, those acts bind them over time—a principle consistent with estoppel in pais and the need to avoid a “fraud upon” the public. Cohoes, 134 N.Y. at 402. Second, this doctrine recognizes that individuals and families form settled expectations about availability of parks in response to government actions and representations; those “honest expectations” affect important choices, including where to live and raise a family, that warrant this protection. Hunter, 6 Hill at 412; cf. City of Cincinnati v. White’s Lessee, 31 U.S. 431, 438 (1832) (estoppel in pais prevents “a violation of good faith to the public, and to those who have acquired private property with a view to the enjoyment of the uses thus publicly granted”). Third, it preserves the State Legislature’s vital role in deciding whether alienation of a park is in the best interests of the people, rather than leaving that choice to local officials who might be more vulnerable to the wishes of private property owners 39 whose private interests the alienation might serve. See Van Cortlandt Park, 95 N.Y.2d at 631. B. New York’s Lower Courts, Other New York Authorities, And Many Other States Have Also Adhered To Long Continuous Public Use As The Main Determinant Of Implied Dedication. With the exception of the decision below, lower courts have correctly and consistently recognized that long continuous public use is crucial to implied dedication claims. In Riverview Partners v. City of Peekskill, 273 A.D.2d 455 (2d Dep’t 2000), for example, the Second Department held that a disputed parcel had become a public park through implied dedication. The court, citing Cook and Croton-on-Hudson as controlling precedents, relied on evidence that the parcel “was used by the public as a park since its purchase.” Id. at 455-56. It pointed to park signage and the local government’s maintenance and improvement of the parcel “for park and historic purposes” as further indicia of implied dedication. Id. Even when rejecting claims of implied dedication on other grounds—for example, where the parcels were being predominantly used for some other non- purpose—New York appellate courts have affirmed the importance of long continuous public use. For example, in Lazore v. Board of Trustees of Massena, 191 A.D.2d 764 (3d Dep’t 1993), the Third Department acknowledged the core teaching of Croton-on-Hudson: “Certainly, a parcel may become a park either through express provision, such as restrictions in a deed or legislative enactment, 40 or by implied acts, such as a continued use of the parcel as a park” by the municipality. Id. at 765. Likewise, in Angiolillo v. Town of Greenburgh, 290 A.D.2d 1, 10-11(2d Dep’t 2001), the Second Department reiterated that “whether a parcel has become a park by implication” hinges on “such evidence as the owner’s acts and declarations and the circumstances surrounding the use of the land.” Id. at 10-11. And in Powell v. City of New York, 85 A.D.3d 429 (1st Dep’t 2011), the First Department acknowledged that a parcel “may constitute a park . . . by implication, such as by a continuous use of the parcel as a public park.” Id. at 431. State officials have likewise recognized the importance of long public use as a key indicator of implied dedication. In advising local governments on their obligations under the Public Trust Doctrine, the Attorney General and the State’s Office of Parks, Recreation and Historic Preservation (OPRHP) have followed the thrust of Croton-on-Hudson. OPRHP thus advises: “Dedication through implication can also occur when the common and accepted use of the land is as a park.” A.8:3009. Similarly, the New York Attorney General has instructed that “[l]and may also be dedicated to public park purposes by . . . long use as a public park.” N.Y. Op. Att’y Gen. (Inf.) No. 2011-7, 2011 WL 3102603 (citing N.Y. Op. Att’y Gen. (Inf.) No. 84-42, 1984 WL 186576. The leading treatise on the powers of New York municipalities reaches the same conclusion. It clarifies that long continuous public use carries predominant 41 weight in assessing both dedication and acceptance in an implied dedication case. With respect to dedication, “where the public has used the land for a public purpose for a long time with the knowledge of the owner and without objection from the owner, an intent to dedicate will generally be presumed.” 11A Eugene McQuillin, The Law of Municipal Corporations § 33:33 (3d ed. 2014). Other treatises are in accord. See 43 N.Y. Jur. 2d Dedication § 18 (2d ed. 2015) (“The intent of an owner to offer to dedicate land to public use may be established by proof that, having knowledge of the use thereof by the public, the owner made no protest but acquiesced in such use for an extended period of time.”); 26 C.J.S. Dedication § 17 (2015) (“Acquiescence of a landowner, without objection, in a public use for a long time, is such conduct as proves and indicates to the public an intention to dedicate.”). As to acceptance, “acceptance of an offer to dedicate is generally shown by one of four methods: acceptance of a deed or other record; acts in pais, such as grading, at public expense; long use; or express statutory or other official action.” 11A McQuillin, supra, at § 33:46 (emphasis added); 43 N.Y. Jur. 2d Dedication § 27 (2d ed. 2015) (“An offer of dedication may be accepted by a long-continued public user.”). As these commentaries confirm, the doctrine has served the State and its citizens well, without imposing any undue burdens on local governments. 42 New York’s approach is shared by many other states. Courts across the country agree that long public use is the cornerstone of implied dedication. To be sure, New York courts have extended the Public Trust Doctrine beyond areas featuring “some connection with navigable water.”10 But the focus of New York’s judiciary on long continuous use to determine whether a parcel has been impliedly dedicated as a park is mirrored in the precedents of other states: A great many sister-state courts have held that long continuous recreational use can establish dedication by implication, either under their particular version of the Public Trust Doctrine or a substantively similar common-law theory.11 See, e.g., Reid v. City of Bessemer, 139 So. 2d 592, 593 (Ala. 1962); Anderson v. Mayor of Wilmington, 137 A.2d 521, 523-24 (Del. Ch. 1958); Hollywood, Inc. v. Zinkil, 403 So. 2d 528, 532- 10 Michael Blumm & Mary Christina Wood, The Public Trust Doctrine in Environmental and Natural Resources Law 233-34 (2013). Notably, New York’s respect for the preservation of parks is of constitutional magnitude. See N.Y. Const., Art. 14, § 1 (making Adirondack land held in trust for the public inalienable and “forever wild”); see also id. § 4 (“The policy of the state shall be to conserve and protect its natural resources and scenic beauty.”). In those provisions of the state’s fundamental charter, and throughout its common law, New York, unlike those states that have limited the Public Trust Doctrine to waterways, affirms its special commitment to public park resources. 11 New York courts’ application of the Public Trust Doctrine is substantially similar to other states’ application of common-law implied dedication. See 11A McQuillin, supra, at § 33:3 (“A common-law dedication requires an intention to dedicate expressed in some form, and an acceptance of the dedication by the proper public authorities, or by general public use.”). 43 33 (Fla. Dist. Ct. App. 4th Dist. 1981) (citing City of Palmetto v. Katsch, 98 So. 352, 353 (Fla. 1923)); La Fayette v. Walker Cnty., 108 S.E. 218, 221 (Ga. 1921); Vill. of Benld v. Dorsey, 142 N.E. 563, 564-65 (Ill. 1924); Bd. of Park Comm’rs v. Shanklin, 199 S.W.2d 721, 722 (Ky. 1947); Kasper v. Miller, 156 P.2d 550, 558 (Kan. 1945); City of Louisville v. Hull, 292 So. 2d 177, 179-80 (Miss. 1974); Citizens for Preservation of Buehler Park v. City of Rolla, 230 S.W.3d 635, 641 (Mo. Ct. App. 2007); Seaway Co. v. Att’y Gen., 375 S.W.2d 923, 936 (Tex. Civ. App. 1964); Greenco Corp. v. City of Va. Beach, 198 S.E.2d 496, 498-99 (Va. 1973); see also Walker Park Assoc. v. Mathews, 91 N.W.2d 703, 710 (Iowa 1958) (finding implied dedication of parking lot “used by the members of the park association, by their guests, by those who attended picnics, entertainments, and other functions in the park”). C. The Appellate Division Misapplied The Law, Effectively Disregarding The Long Continuous Public Use Of These Four Parks The Appellate Division’s disregard for long continuous public use is fundamentally inconsistent with the precedents of this Court and the Appellate Divisions. See, e.g., Flack, 122 N.Y. at 114 (“long continued and uninterrupted use of land by the public . . . furnishes strong evidence of dedication”) (emphasis added). While paying lip service to the need to “consider the owner’s acts and declarations and the circumstances surrounding the use of the land,” the Appellate 44 Division, in fact, gave minimal weight to the City’s longstanding conduct in allowing—and actively encouraging—the public to use these four parcels as parks. While the Appellate Division acknowledged (and the trial court found as a matter of fact) that “the City has allowed for the long-term continuous use of parts of the parcels for park-like purposes;” it nevertheless concluded that 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.” A.1:5 (App. Div. Op. at 74).12 The Appellate Division offered scant explanation for why the trial court’s undisputed finding that the public had long continuously used these four parcels 12 Respondents contended in opposing leave that even a single municipal act can establish that the City has not “manifested a present, fixed, and unequivocal intent to dedicate,” thereby defeating implied dedication regardless of a parcel’s long continuous public use. City Mem. in Opp’n 9-11; NYU Mem. in Opp’n 22-24. This Court has never so held. See pp. 34-35, supra. Nor has any lower court concluded that the inquiry into implied dedication terminates the moment a litigant points to some fact indicating an owner’s intent to dedicate was equivocal. Rather, “the question is whether the acts of [the owner] which tended . . . to indicate an intention to dedicate to the public were rebutted and refuted as matter of law by other acts which might have a contrary meaning.” Newton v. City of Dunkirk, 121 A.D. 296, 300 (4th Dep’t 1907); see id. at 297 (“Where conflicting the force and effect of each [act and circumstance] should be considered and a conclusion reached in accordance with the weight of the evidence.”). Indeed, the phrase on which Respondents rely—“present, fixed, and unequivocal”—is not even found in any precedent of this Court; the Appellate Division borrowed it from the McQuillin treatise. See Winston v. Vill. of Scarsdale, 170 A.D.2d 672, 673 (2d Dep’t 1991) (quoting 11A McQuillin, supra, at § 33.30 (3d ed. 1991)). 45 for public recreation, at the City’s invitation, was insufficient to make them dedicated parkland. Id.13 The other factors cited by the court—that the parcels were initially mapped (but never used) as streets, that there was no formal re- mapping of the parcels as parks, and that, according to the Appellate Division, the park use of the parcels was “temporary and provisional”—are beside the point. The first two factors are relevant to express dedication, not implied dedication, for the formal mapping of a site as a park would itself be an express dedication. And the Appellate Division offered no record support for its assertion that the use of these parcels as parks was “understood to be temporary,” even though they remained parks for decades. To the extent the court had in mind the few internal government memos and letters cited by Respondents, reliance on those few arcane documents never made known to the public at large to overcome long continuous public use would eviscerate the implied dedication doctrine. 13 The court glibly stated that “such use was not exclusive,” and that one of the parcels (LaGuardia Park) was also occasionally used as a “pedestrian thoroughfare.” A.1:5 (App. Div. Op. at 74). But the Appellate Division’s decision “on the law” did not purport to change the trial court’s factual findings, which included the “long continuous use of all four parcels as parks.” A.1:48 (Trial Op. at 35). See infra Point II.A.2. Nor could it. That some local residents might walk through LaGuardia Park does not strip it of park status, any more than walking or jogging through Central Park would affect that park’s status. 46 While the Appellate Division appeared to believe that a parcel’s initial designation on the City Map of as a potential “street” precludes its implied dedication later as a park, such a rule would also undo the implied dedication doctrine. It would make a single municipal act dispositive—one that, in this case, occurred six decades ago—to the complete exclusion of the long continuous public use of these parcels as parks since then, with the active encouragement of City officials. Formal mapping may be dispositive in an express dedication inquiry, but it has little or no significance in assessing implied dedication, and cannot override subsequent long continuous public use. And this is especially so where, as here, the expressway proposed for which that designation was originally made in the 1950s was abandoned, so these sites have never been used as “streets” and, now, never will be. Of course, a map can indicate public use, but neither this Court nor any lower court (until the panel below) has ever assigned controlling weight to official maps. In B&Q, this Court roundly rejected the City’s argument that the mapping of a parcel as a “public highway or street” was dispositive of its status, where the trolley company that owned the parcel and its passengers used it as a trolley terminal—and not a public street or highway—“without objection on the part of the city.” 273 N.Y. at 397, 401-02. And in Holdane, although the owners of a disputed parcel had directed that it “be mapped and designated as a highway,” this 47 Court rejected the claim of highway status, recognizing among other things, that the parcel was a cul de sac and simply could not function as a public highway. 21 N.Y. at 476-79. Cf. Riverview, 273 A.D.2d at 455-56 (that a parcel was labeled a “park” on “various city maps” was but one indicator among several that it had been impliedly dedicated as a park); Flack, 122 N.Y. at 115-16 (mapping of parcels as street, confirmed by decades of public use, supported conclusion that it had become a public highway). The Appellate Division’s nonsensical suggestion that formal mapping of parcels dispenses with the need to examine long continuous use in an implied dedication case cannot be reconciled with those precedents. The Appellate Division also noted that the City failed to formally remap the contested parcels as parks, despite requests to do so in the 1990s. A.1:5 (App. Div. Op. at 74). But that meant only that the land was not expressly dedicated as park space—nothing more or less. If the absence of express dedication could bar implied dedication, no distinction would remain between these two different mechanisms for reserving land for public use. As the trial court recognized in rejecting that crabbed view, such an “interpretation of the law governing the public trust doctrine would effectively superimpose the requirement of express dedication on the doctrine of implied dedication.” A.1:47 (Trial Op. at 34). That result would be particularly wrongheaded here, where the record shows that City officials clearly acknowledged at the time that these parcels were parks, informed the public 48 at the time that they were “willing to undertake” that remapping effort with neighbors’ “written consent,” A.6:2415-16, but then yielded to NYU as the lone objector unwilling to waive liability claims over such a move, A.1:34-36 (Trial Op. 21-23) (quoting A.8:3192 ¶ 13 (Lynn Aff.)). In other words, through that exercise, City officials manifested to the public that these sites were and would continue to be parks regardless, but chose not to invite a lawsuit from NYU when it alone objected to formal remapping, because these sites would remain parks in any event. A.1:34-36 (Trial Op. 21-23) (quoting A.8:3192 ¶ 13 (Lynn Aff.)). The Appellate Division asserted that the City Parks Department’s “management of the parcels” was “understood to be temporary and provisional.” A.1:5 (App. Div. Op. at 74). As explained below, Point II.B.3, the Appellate Division’s assertion, unsupported by any citation to the record, did not displace the trial court’s considered factual findings to the contrary. To the extent the court was referring to a few arcane communications, those documents cannot defeat implied dedication of the parcels. The key question is not whether the City or NYU can locate a stray memo or letter somewhere in the government’s files, but whether the City has “manifest[ed] an intention to . . . devote [its] property to . . . specific public use.” Cook, 61 N.Y. at 454. And because courts avoid “fraud upon” the public, Cohoes, 134 N.Y. at 402, the relevant audience is the general public—not an inner circle of bureaucrats communicating long ago, behind closed doors and 49 unbeknownst to the public at large. See, e.g., Seaway, 375 S.W.2d at 936 (in implied dedication case, “intent on the part of the owner . . . is not a secret intent, but is that expressed by visible conduct and open acts of the owner”).14 While the Appellate Division focused on the largely internal, bureaucratic paper trail, the common law’s fundamental concern is practical realities and the public’s honest expectations, particularly from long continuous use. As the trial court recognized, and the Appellate Division tacitly accepted, the record is replete with evidence of the City’s many public acts and declarations over the years designed to encourage public use of the parcels for recreational purposes, as detailed in Point II. Both the implied dedication framework and the doctrine on which it rests—estoppel in pais—precludes the government from “reclaim[ing] at pleasure property which has been solemnly devoted to the use of the public,” in “violation of good faith to the public.” Hunter, 6 Hill at 412-13; see also White’s 14 See also, e.g., Dorsey, 142 N.E. at 565 (“It is probably true that he did not intend to make a dedication to the public . . . but the existence of such secret intention, existing only in his mind, would not defeat the dedication. Such secret and undisclosed intention, if it existed, is clearly contrary to the intention manifested by his acts and declarations, upon which the public had a right to rely, and the intention must be determined from his acts and declarations.”); Kasper, 156 P.2d at 557 (“Regard is to be had to the character and effect of the open and known acts, and not to any latent or hidden purpose.”). Cf. Flack, 122 N.Y. at 113 (implied dedication “necessarily involves the intent and acts of the owner and the intent and acts of the acceptor . . . . Where such intents are not evidenced by acts, the mere intent of one or even both the parties signifies nothing”). 50 Lessee, 31 U.S. at 438. Indeed, the few interagency documents to which the Appellate Division may have been referring (after all, it cited no evidence in its decision) confirm that the City plainly intended the parcels to be managed and maintained as parks, and that practice continues today. That a decades-old memo says the Parks Department’s management of these parcels might someday cease (A.6:2497; 8:3251-71)—although they have remained parks for decades and actually continue as parks to this day—does not give the City free rein to deny their status as parks. The legal standard espoused by the Appellate Division—however opaque— is especially unsound because it gives local governments a clear path to evading the Public Trust Doctrine. Given the continued pressure of development and the growing scarcity of parks, clarification of the ongoing vitality of implied dedication is essential. This Court’s precedents underscore that proximity and access to public parks are essential for New Yorkers when they decide where to live and raise their families. Where there has been “long public use” of a parcel, Cook, 61 N.Y. at 454, and that use has endured “for many years . . . without objection on the part of the city,” B&Q, 273 N.Y. at 402, and where City officials have even promoted that use (as they did here) by spending public funds to maintain and improve the parcels for park purposes, attending official public dedication ceremonies, and posting City Parks Department signage and touting 51 them as “parks” on its website, New Yorkers have justifiably come to expect that the parcel will stand as a park, whether available as a playground for children, as a garden, as a dog run, or for other park purposes. See, e.g., Croton-on-Hudson, 38 A.D. at 979-80, aff’d, 30 N.Y.2d 959; Riverview, 273 A.D.2d at 455-56; cf. Flack, 122 N.Y. at 116. The Appellate Division’s decision completely compromises those “honest expectations.” Hunter, 6 Hill at 412. It would allow a local government to accede to a neighborhood’s dominant landlord and to deny park status to parcels of municipal land after decades of actively promoting outdoor recreational use merely by pointing to an obsolete map, locating arcane interagency memos and one-off communications, and creating new internal documents to try to rewrite history,15 despite, over decades, engaging in outward public conduct that manifests plain assent to usage of the parcel as a public park. 15 Among the documents proffered by the City to suggest the park use here was “temporary” are memos and documents created in the late 2000s—when NYU had publicly announced its expansion plan—trying to create a paper trail after the fact to support that narrative. See A.6:2420, 2491. Obviously, such “post hoc” rationalizations cannot serve to rewrite the actual history here of long continuous public use of these parks. 52 II. MERCER PLAYGROUND, LAGUARDIA PARK, AND LAGUARDIA CORNER GARDENS ARE PROTECTED PARKLAND BECAUSE THE CITY ACTIVELY PROMOTED THEIR CONTINUOUS PUBLIC USE AS PARKS OVER DECADES. Under the correct legal standard, the trial court’s factual findings allow only one conclusion: that all four parcels were impliedly dedicated as parks after the City abandoned its Lower Manhattan Expressway plan and, instead, promoted their use for public recreation. The trial court found that “petitioners have certainly shown long continuous [use] of the four parcels as parks,” A.1:48 (Trial Op. at 35), and the Appellate Division did not question that finding. This Court can and should finally resolve this case by reaffirming the continued vitality of the implied dedication doctrine and entering judgment for Petitioners holding all four of these parcels (including the Dog Run site addressed in Point III below) to be protected parklands. A. Mercer Playground, LaGuardia Park, And LaGuardia Corner Gardens Have Been Dedicated As Parks Through The City’s Active Promotion of Their Long Continuous Public Use For Outdoor Recreation. 1. Since It Publicly Dedicated Mercer Playground In 1999, The City Has Actively Promoted Actual And Continued Public Use Of The Site For Recreation. As the trial court found, the City unequivocally manifested its intent to allow Mercer Playground to be used as a park by supporting its use for recreation for decades. A.1:49, 51 (Trial Op. at 36, 38). The trial court detailed numerous, 53 specific acts that made this intent clear to the public. First, in 1999, the City held a public dedication of the Playground, an event over which then-Parks Commissioner Henry Stern presided and many other City officials attended. Second, at that public dedication ceremony, the City expressly told the public that it was giving Greenwich Village a dedicated park, distributing a brochure to the public which explained that the park had once been under the jurisdiction of the Department of Transportation, and in 1997, “was formally transferred” to the Parks Department. A.1:31 (Trial Op. at 18); A.8:3089-92. And City capital dollars were allocated to pay for the park. A.1:32 (Trial Op. at 19). As the trial court recognized, since that dedication ceremony, the Parks Department has consistently told the public—on its website, and on signage and insignia at the site itself—that it may use and enjoy Mercer Playground as a public “park.” The indicia of implied dedication at Mercer Playground are numerous: [A] sign containing the name, Mercer Playground, and including the department’s maple leaf symbol; the maple leaf symbol imprinted on the grounds of the park; the water drain containing the maple leaf symbol and the identification, “City of New York Parks and Recreation;” the multilingual “no smoking” sign that includes the maple leaf symbol and identifies the DPR website, www.nyc.gov/parks; the DPR sign listing department rules for the playground, and containing the DPR name, the maple leaf symbol, the department website address, and identifying both the mayor and the commissioner of DPR by name; and the DPR flag flying over the park. A.1:30-31 (Trial Op. 16-17); see A.8:3089-92. Notably, the City continued to promote this parcel as parkland on the Parks Department’s website until six 54 months into this litigation, when it took down that website reference. A.1:30-31 (Trial Op. at 18-19 & n.10); see A.8:3081. The trial court’s determination that Mercer Playground had been impliedly dedicated as a park hinged on the City’s sustained conduct of more than 15 years: holding Mercer Playground out to the public as a park, allocating public funds for its creation and maintenance, and actively embracing and promoting its use as a public park. See A.1:32-33, 49 (Trial Op. at 19-20, 36) (relying on affidavits of neighborhood residents and government officials cataloging indicia of implied dedication); A.8:3135 (Maddow Aff.), 3154-57 (Steed Aff.), 3160-63 (Monaco- Callet Aff.), 3183-86 (Papadeas Aff.); see A.8:3102 (Gerson Aff.), 3144-45 (Stern Aff.), 3167-68 (Freed Aff.). The Appellate Division did not disturb these factual findings; indeed the Appellate Division’s opinion did not even mention Mercer Playground by name. In light of these findings, the proper remedy is to reinstate the trial court’s determination that the Playground was dedicated parkland, and as such, the City’s decision to unilaterally turn it over to NYU was unlawful. 2. For Nearly Three Decades, The City Has Actively Promoted Actual And Continued Public Use Of LaGuardia Park for Recreation. The trial court found that LaGuardia Park had been impliedly dedicated as parkland in large measure because the City supported public use of the area for 55 recreational purposes for decades. A.1:36-38, 49, 51 (Trial Op. at 23-25, 36, 38). The court credited evidence establishing that, for more than 25 years, the City has encouraged the public’s unfettered access to that park as a unique spot for outdoor assembly and community events. A.1:37 (Trial Op. at 24); A.8:3155 (Steed Aff.). The trial court also found that the City has continued to enhance and expand the recreational aspects of the park. For example, the court described City officials pledging support for and celebrating the groundbreaking of Adrienne’s Garden. A.1:36-37 (Trial Op. at 23-24); see also A.8:3093. Former City Councilmembers Gerson and Freed both described the City funding construction of Adrienne’s Garden and dedicating hundreds of thousands of dollars in City capital funds to LaGuardia Park “over the years.” A.8:3103-04 ¶¶ 10-14 (Gerson Aff.), 3168 ¶¶ 16-17 (Freed Aff.). The trial court also cataloged the ways in which the City has held LaGuardia Park out to the public as parkland. The court stressed “extensive use of signage indicating some amount of management of the properties by” the Parks Department, and “at least some intention of the City to identify the parcels as parks and encourage members of the public to consider and utilize them as parks.” A.1:49 (Trial Op. at 36); see A.8:3094-95 (signs with the Parks insignia and listing the Mayor, Borough President, and the Parks Commissioner as official sponsors of Adrienne’s Garden). The Parks Department website “refer[s] to [LaGuardia Park] 56 as a park” and describes how Mayor Giuliani and his three predecessors signaled enduring City support for the park by attending an official ceremony to dedicate the Fiorello La Guardia statue as its centerpiece in 1994. A.1:36-37 (Trial Op. at 23-24); see A.8:3097 (Parks Department website for LaGuardia Park referring to signs “posted within the park”). While the Appellate Division did not disturb the trial court’s finding that the “petitioners have certainly shown long continuous [use] of the four parcels as parks,” A.1:48 (Trial Op. at 35), the panel made the bizarre assertion, unsupported by citation to the record, that LaGuardia Park was a “pedestrian thoroughfare[].” The Appellate Division explicitly stated that its decision was “on the law,” A.1:4 (App. Div. Op. at 73), and it did not specify any findings of fact that it was reversing or modifying. See CPLR § 5712(c)(1). This Court may thus “consider the reversal to be upon the law, and not upon facts,” and consider itself bound by the trial court’s factual findings. Hart v. Blabey, 287 N.Y. 257, 263-64 (1942). Even if this characterization could nonetheless be deemed a new factual finding, this Court has authority to overturn it as unsupported by the record, see CPLR § 5501(b), and contrary to common sense: that pedestrians can cross over a parcel does not control its classification. See Hotel Emps. & Rest. Emps. Union v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 539, 550 (2d Cir. 2002) (City- owned fountain plaza in middle of Manhattan’s Lincoln Center complex was not 57 traditional public forum where, inter alia, “[t]he ability of pedestrians to cross the Plaza as a short-cut between surrounding streets is merely an incidental feature of its principal function as the entrance plaza for the Lincoln Center complex”). As with Mercer Playground, the trial court’s factual findings here and its conclusion “that the public trust doctrine applies” to LaGuardia Park, should be reinstated. 3. Since 1981, The City Has Actively Promoted Actual And Continuous Public Use Of LaGuardia Corner Gardens For Public Recreation. The trial court also found that LaGuardia Corner Gardens was protected parkland because the public has continuously used it for recreation since it opened as a community garden in 1981. A.1:38-41, 49-51 (Trial Op. at 25-28, 36-38); A.6:2054. According to the trial court, the Gardens is “a [Parks Department] project,” “managed and administered under [the Parks Department’s] GreenThumb Community Garden program,” and is “open to the public” for recreational use whenever possible. A.1:38-39 (Trial Op. at 25-26). The trial court found that the City has held the Gardens out to gardeners, naturalists, and members of the public as parkland for the past three decades. The court noted that the Gardens features signs bearing Parks Department insignia and identifying the area as a Parks Department GreenThumb project “open to the public.” A.1:39, 49 (Trial Op. at 26, 36); A.8:3097. Those signs direct members of the public to reach out to the Parks Department directly with any concerns about 58 the Gardens. A.8:3097. The City also promotes LaGuardia Corner Gardens as a park by placing GreenThumb signs on the Gardens and by listing it on the GreenThumb website, which “contains the [Parks Department] name and symbol,” and which describes the gardens as not “just pretty spaces; they’re also important community resources.” A.1:39, 49 (Trial Op. at 26, 36); see A.8:3097. The trial court also explained that City officials were fully aware that the City was holding the Gardens out to local residents as public park space: Former DPR Commissioner Stern states that he recalls telling the former chairperson of Community Board 2 that DPR “would embrace a formal transfer of LaGuardia Corner Gardens to Parks because we are already treating it as such.” Stern aff., ¶ 19 (ii). Stern further states that some DPR employees believed that the garden had been formally transferred because of DPR’s long history of working with the community to maintain the garden. Id. A.1:40 (Trial Op. at 27) (citing A.8:3144-45). Based on these findings—none of which the Appellate Division suggested it was setting aside—the Gardens has become parkland protected under the Public Trust Doctrine. See A.1:51 (Trial Op. at 38). This Court should reinstate the trial court’s judgment with respect to this parcel as well. B. The Other Factors Relied Upon By The Appellate Division Cannot Defeat The City’s Implied Dedication Of These Parcels. The Appellate Division’s explanation for its reversal of the trial court’s holding of implied dedication consisted of three sentences. The court asserted that the parcels were initially mapped for use as potential “streets,” that the City did not 59 expressly re-map them as parks, and that the Parks Department’s management of the parcels “was understood to be temporary and provisional,” pursuant to revocable permits or licenses. A.1:5 (App. Div. Op. at 74). Neither the panel’s cryptic pronouncement nor settled law provides any reason to give these factors any weight here, let alone grounds to reverse the trial court’s decision. 1. The Parcels’ Formal Mapping As Streets Carries No Substantial Weight In The Implied Dedication Inquiry. In holding that the parcels here were not parkland despite the City’s decades-long promotion of the site for public recreation, the Appellate Division credited the fact that they “have been mapped as streets since they were acquired by the City.” A.1:5 (App. Div. Op. at 74). That was an error of law. The state statutes addressing street mapping, see N.Y.C. Admin. Code § 5-430 et seq., grant limited property management authority to municipalities without purporting to address the contours of implied dedication under the Public Trust Doctrine—and they certainly do not do so with the clarity demanded to abrogate deeply-rooted common law. New York’s General City Law authorizes the street mapping regime on which the panel apparently relied (without citing, let alone analyzing, any relevant statutory provision). Section 20(2) of the General City Law empowers the City to “acquire real and personal property within the limits of the city, for any public or municipal purpose, and to sell and convey the same, but the rights of a city in and 60 to its water front . . . streets, avenues, parks and all other public places, are hereby declared to be inalienable, except [as provided in Section 5-430 and neighboring provisions of the City’s Administrative Code].” N.Y. Gen. City Law § 20(2); see also E&J Holding Corp. v. Noto, 126 A.D.2d 641, 643-44 (2d Dep’t 1987). In granting local government units limited authority to manage their real property portfolios, the State Legislature did not restrict pre-existing law governing how a parcel acquires the status of a “street” or a “park.” Nor is any intent to address that subject discernible from the statutory text or its history. Nor is any intent to address that subject discernible from the statutory text or its history. See Rep. of Comm. on Leg., at 20 (1913). In any event, even if Section 20 and the City’s Administrative Code had purported to override common-law implied dedication and the Public Trust Doctrine to give dispositive weight to a parcel’s formal mapping, any such statutory language would have to speak with unmistakable clarity. The State Legislature’s power to abrogate the common law can only be exercised by clear legislative statement. See Hechter v. N.Y. Life Ins. Co., 46 N.Y.2d 34, 39 (1978) (presuming Legislature respects common law, and requiring “a clear and specific legislative intent . . . to override the common law.”); N.Y. State Pub. Emps. Fed’n v. Albany, 72 N.Y.2d 96, 99-100, 101-02 (1989) (invalidating city ordinance that conflicted with common law); Allen v. Adami, 39 N.Y.2d 275, 277-78 (1976) 61 (narrowly construing zoning regulations that conflicted with common law). Because no such clear statement is found in the General City Law or in the City’s Administrative Code, the statutory regime governing the City’s street mapping does not displace this Court’s implied dedication precedents predating the Civil War. Consistent with that conclusion, courts recognize that once a parcel becomes a highway, it usually remains one “until it ceases to be such by the action of the general public in no longer traveling upon it, or by action of the public authorities in formally closing it.” City of Buffalo v. Del., Lackawanna & W.R.R. Co., 190 N.Y. 84, 96 (1907). Thus, even if the parcels at issue here were once to be “streets,” they ceased to be such when the Lower Manhattan Expressway project was abandoned, and they never have been used as streets, and now, never will be. Indeed, the trial court correctly concluded that the public is not “traveling upon” these parcels, id., but instead has been using them for outdoor recreation at least since the City abandoned the expressway plan. Nor did the Appellate Division dispute that neighborhood residents have continuously used the four parks for outdoor recreation purposes, including riding bikes, playing, gardening, and relaxing. Supra, Point II.A; A.1:37 (Trial Op. at 24) (describing recreation at LaGuardia Corner Gardens); A.1:33 (Trial Op. at 20) (describing neighborhood children using Mercer Playground for recreation); A.1:36-37 (Trial Op. at 23-24) 62 (highlighting official support for Adrienne’s Garden in LaGuardia Park); A.1:42 (Trial Op. at 29) (recounting history of recreational use of the Dog Run site).16 2. The Fact That The City Did Not Formally Remap These Parcels And Expressly Dedicate Them As Parks In No Way Foreclosed Their Implied Dedication As Parks. The Appellate Division also noted that the City did not expressly de-map the four parcels and re-dedicate them as parkland, despite requests to do so in the 1990s. A.1:5 (App. Div. Op. at 74). The City’s own Parks and Transportation Commissioners at the time testified that they already viewed the parcels as parks protected under the Public Trust Doctrine. That should end the inquiry: “a dedication once made and accepted cannot be revoked.” Cook, 61 N.Y. at 453. As the trial court recognized, the Parks Department’s consideration of express dedication confirms, rather than undermines, the conclusion that they these sites had already been impliedly dedicated as parks. A.1:34-36 (Trial Op. at 21- 23). In the 1990’s, both the Parks Department and DOT “supported formally turning” the parcels over to the Parks Department and expressly dedicating them as parks, but “the sole and strident objector was NYU.” A.1:34 (Trial Op. at 21); see also A.6:2415-16, A.8:3259 (letters from Parks Department officials to community 16 While the Appellate Division asserted that LaGuardia Park is a “pedestrian thoroughfare,” A.1:15 (App. Div. Op. at 74), it gave no basis for this statement. This Court therefore need not accord it any weight whatsoever. See supra, Point II.A.2. 63 members explaining that the City was “willing to undertake” the effort to remap these sites as parkland if neighboring landowners “consent[ed]”). The City decided that “remapping ‘became a fight not worth having.’” A.1:35-36 (Trial Op. 22-23) (quoting A.8:3192 ¶ 13 (Lynn Aff.)). Critically, City officials believed it “‘made no practical difference whether the City Map formally changed,’” because “‘these sites had already become dedicated parkland.’” Id. In overlooking those realities, the Appellate Division’s decision converts NYU’s successful opposition to express dedication into an unwarranted windfall: a shield against implied dedication, notwithstanding the long public recreational use of the parcels, at the City’s behest. None of this Court’s precedents supports such a distortion of the Public Trust Doctrine. The trial court’s savvy observation on this point is telling: “One might . . . conclude that NYU’s longstanding opposition to repeated efforts of the community and the DPR to have the land remapped as parkland, was primarily to maintain an advantage with respect to its own long-planned expansion project.”17 A.1:50 (Trial Op. at 37). That perverse result should not be countenanced by this Court. 17 Indeed, as part of the City’s approvals of NYU’s plan, Mercer Playground and LaGuardia Park will officially become parks once NYU is done using them as construction staging areas 20 years from now. But that move is tantamount to an admission that they have been parks all along. 64 3. A Few Arcane Government Documents Purporting To Assign The Parks Department Only “Temporary” Oversight Of These Parcels Did Not Shield Them From Implied Dedication. In explaining its ruling that the City had manifested its intent to dedicate these parcels as parks, the trial court detailed extensive evidence from former City officials and local residents who used the parks. See A.1:32-36 (Trial Op. at 19- 23). The Appellate Division ignored all of that, asserting, instead, without explanation or citation, that the Parks Department’s “management of the parcels was understood to be temporary and provisional, pursuant to revocable permits or licenses.” A.1:15 (App. Div. Op. at 74). Respondents have pointed to below to a few arcane City documents purporting to restrict DOT’s assignment of the parcels to the Parks Department. Those few documents, however, cannot vitiate the City’s decades-long promotion of the sites for public use, including through expenditure of public funds for improvement and maintenance of the parcels, or save the Appellate Division’s decision from reversal.18 18 For example, Respondents purported to rely on a 1995 letter from DOT Commissioner Elliot Sander to Parks Commissioner Stern, granting the Parks Department a permit to use the site now known as Mercer Playground. City Mem. in Opp’n 5; NYU Mem. in Opp’n 11; A.1:34 (Trial Op. at 21); see A.6:2497. That reliance was misplaced. This internal communication unbeknownst to the public—which the City effectively abrogated when it told the public at the Playground’s official dedication ceremony the parcel had, by (Cont’d on next page) 65 III. THE MERCER-HOUSTON DOG RUN IS PROTECTED PARKLAND BECAUSE THE CITY HAS ACTIVELY PROMOTED ITS PUBLIC RECREATIONAL USE FOR MORE THAN FOUR DECADES. The trial court found that the public has used the site where the Dog Run is located for public recreation going back more than four decades. See A.1:42 (Trial Op. at 29); see A.8:3134 (Maddow Aff.). As the trial court recognized, the public initially used the area as a sand lot ball field, open to the public for free; then, from the early 1980s to the present, it has operated as the Dog Run, open to any member of the public with a licensed dog who pays a nominal annual fee for access. A.1:42 (Trial Op. at 29); see A.1:201; A.4:1425-26; A.5:1911. Like the facts surrounding the other three parks, these undisputed factual findings meet the standard for implied dedication under the Public Trust Doctrine. See, e.g., Flack, 122 N.Y. at 114 (“[L]ong continued and uninterrupted use of land by the public . . . furnishes strong evidence of dedication.”). (Cont’d from previous page) then, been “formally transferred to Parks,” A.1:31 (Trial Op. at 18)—addressed only agency jurisdiction over the property, not the public’s use of the property. And the DOT reserved only the right to retake the land “in the event that DOT requires [it] in order to perform capital construction work” to create an expressway—a plan long abandoned. Indeed, these sites have never been used as streets, and given the development surrounding them, never will be. For decades, they have been used only as parks for decades, with the City’s blessing, and that is why they have become dedicated parkland. 66 While the trial court acknowledged that the “long continuous [use] of all four parcels as parks” had “trigger[ed] the notion of a ‘public trust,’” A.1:48-49 (Trial Op. at 35-36), it inexplicably held that the Dog Run alone was not protected parkland. The court observed that the Dog Run does not bear some of the indicia of dedication present at the other sites: it has no Parks Department signs, is not listed on the Parks Department website; it is maintained by a community not-for- profit group, not the Parks Department; and it “was repaired pursuant to a contract with NYU,” albeit as part of a deal with the City requiring NYU to do so in exchange for approval of its gymnasium project. A.1:42-43 (Trial Op. at 29-30). The trial court also noted that the Dog Run is open only to members of the public who pay a fee, nominal as it is ($60 annually, $30 for seniors). A.1:42-43 (Trial Op. at 29-30); see A.6:2515 ¶ 48 (Olivieri Aff.). The Appellate Division affirmed, without mentioning the Dog Run at all. Both courts erred on the law in assessing the status of the Dog Run. Because long continuous public use of public land as a park is the central determinant of implied dedication (supra, Point I), the site of the Dog Run was impliedly dedicated as a park even before it was used as a dog run, and it has continued to be used for the public’s recreational purpose for more than three decades. As for the contract that obligated NYU to maintain the Dog Run and keep it available for public recreational use, NYU undertook that obligation to 67 satisfy a 1979 agreement with the City allowing NYU to build Coles Gymnasium. See A.1:42 (Trial Op. at 29); A.2:612; A.7:3313 ¶ 11 (Brown Aff.). By the time NYU arrived on the scene, the site was already a public park, and “[o]nce established, the dedication [as protected parkland] is irrevocable.” Riverview, 273 A.D.2d at 455-56 (citing Cook, 61 N.Y. at 453-54). Whether NYU or the City performs routine maintenance at the Dog Run does nothing to alter that status. Nor does management of the Dog Run by a non-profit association that charges a nominal fee and permits membership of any dog-owning member of the public change its status. As this Court recently confirmed, and the trial court recognized, permitting access to members of the public who pay a nominal fee for access to a privately-managed part of a park is fully consistent with valid public park purposes and creates no obstacle to protection under the Public Trust Doctrine. See Union Sq. Park Cmty. Coal., Inc. v. N.Y.C. Dep’t of Parks & Rec., 22 N.Y.3d 648, 653-55 (2014) (upholding license to operate restaurant in Union Square Park that charged up to $33.95 for entrée); A.1:43 (Trial Op. at 30) (citing A.8:3147 (former Parks Commissioner Stern confirming that private entities charge nominal access fees for recreational services in many City parks)). See also Petrosino Sq., 42 Misc. 3d at 231-32 (allowing fee-for-ride bike stations in parks); Comm. to Preserve Brighton Beach & Manhattan Beach, Inc. v. Planning Comm’n, 259 A.D.2d 26, 28-29, 36 (1st Dep’t 1999) (permitting fee to use driving 68 range and batting cages in park). Just look at Wollman Rink in Central Park. Or any of the City’s many public golf courses located within parks. All are managed privately, but all are nonetheless protected parkland. See A.1:43 (Trial Op. at 30 (citing Stern Aff. ¶ 19(iv), A.6:3146-47). Given its long continuous public recreational use, the Dog Run, like Mercer Playground, LaGuardia Park, and LaGuardia Corner Gardens, has become protected parkland. Thus, it, too, cannot now be alienated absent the State Legislature’s express approval.19 19 This Court may apply the proper legal standard for implied dedication, which focuses on long continuous use, to the trial court’s undisturbed factual finding that the public has continuously used the Dog Run site for recreation for more than 40 years. See Dulberg v. Equitable Life Assurance Soc’y, 277 N.Y. 17, 20- 21, 25 (1938) (“[T]he findings of fact made by the trial court were not disturbed by the Appellate Division, and are conclusive upon this court if there was any evidence, considered in its aspect most favorable to plaintiff, to sustain them.”); Duclos v. Kelley, 197 N.Y. 76, 79-80 (1909) (“An appellate court can declare the law and apply it to the facts already found and thus protect the parties from the evil of further litigation.”). Accordingly, the Court can enter judgment for Petitioners with respect to this parcel without remittal. See, e.g., Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 393 (1995) (finding remittal “unnecessary” where the “crucial factual inquiry under the correct standard . . . has already been resolved” and “dictates the legal conclusion”). 69 IV. THE PROPER REMEDY REQUIRED HERE IS AN INJUNCTION AGAINST FURTHER CONSTRUCTION AND ANNULMENT OF THE CITY’S APPROVALS OF NYU’S PLAN. This Court should reinstate the injunction crafted by the trial court to address the violation of the Public Trust Doctrine described above. Supra, Point II. The necessary remedy in this Article 78 case further includes annulment of the challenged approvals of the Sexton Plan, and—because NYU announced after the trial court’s decision that it intended to proceed with construction of a part of the Sexton Plan—related equitable relief to ensure that no construction takes place unless and until the State Legislature authorizes any parkland alienation necessary here. Either of two independent legal grounds supports that remedy: (1) the City’s violation of SEQRA; and (2) the City’s approval of the Sexton Plan without State Legislative authorization to alienate the parcels, as required by the Public Trust Doctrine. Granting that relief is well within this Court’s remedial authority, see CPLR 5522(a), and will further the policy against needless remittals, see People v. Qoshja, 17 N.Y.3d 910, 911 (2011) (reiterating judicial policy to “minimize unnecessary remittals”) (quoting People v. Callahan, 80 N.Y.2d 273, 285 (1992)). A. SEQRA Required The City To Acknowledge And Account For The Status Of The Parcels As Protected Parkland. The Appellate Division’s erroneous conclusion that the contested parcels are not parkland invalidates its holding as to Petitioners’ claim under SEQRA. The 70 panel blithely declared that the trial court had “correctly found that the project- approval process complied with . . . SEQRA,” A.1:5 (App. Div. Op. at 74), but failed to examine the consequences of the Public Trust Doctrine for the SEQRA analysis. SEQRA requires agencies to “identif[y] the relevant areas of environmental concern, [take] a ‘hard look’ at them, and [make] a ‘reasoned elaboration’ of the basis for their determination” prior to issuing a land use permit. Chinese Staff & Workers Ass’n v. City of N.Y., 68 N.Y.2d 359, 363-64 (1986). When an agency commits legal error or omits matter “essential to an understanding of the environmental impact” of the project, a SEQRA determination and ensuing permit must be annulled. Bronx Comm. for Toxic Free Schs. v. N.Y.C. Sch. Constr. Auth., 20 N.Y.3d 148, 152, 155-56 (2012); see also Chinese Staff, 68 N.Y.2d at 365-66, 368-69. The City committed an egregious legal error by failing to consider the parcels as parklands. The Public Trust Doctrine is essential to assessing a project’s environmental impact. Petitioners repeatedly called it to the City’s attention. A.3:1056, 1105, 1110; A.4:1182-84, 1319, 1471, 1498-99. But the Final EIS inexcusably failed to acknowledge, let alone take the requisite “hard look,” at the parcels’ status as parklands, and the public had no opportunity to comment on the project’s effect on the parcels as parklands. 71 Where a Final EIS contains an error of law—as was true here—an agency’s adoption of the EIS and any subsequent municipal actions contingent on that EIS are properly set aside as arbitrary and capricious. For example, when a Final EIS fails to discuss “important decisions about mitigation” of harms that the lead agency (here, the CPC) has an independent statutory obligation to address, the lead agency has been held to have violated SEQRA. See Bronx Comm., 20 N.Y.3d at 153, 155-56 (City erred in omitting from impact statement analysis of key measures separately required under “brownfield” statute, ECL § 27-415(7)(a)(ii)). In addition, when the lead agency mistakenly excludes a particular class of harm from its environmental analysis, the analysis is invalid. See Chinese Staff, 68 N.Y.2d at 365-66, 369 (vacating permit founded on City’s statutory interpretation error “contrary to [SEQRA’s] plain meaning”). Extended deliberations by local lawmakers are no substitute for the reasonable decision and reasoned explanation SEQRA demands. See N.Y.C. Coal. to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337, 342, 350-51 (2003). Here, the proper remedy is to annul the approvals that hinged on the Final EIS and remand to the CPC to adequately consider the protected status of the four parks. See Chinese Staff, 68 N.Y.2d at 368-69 (“appropriate remedy for the[] violation of the statutory mandate imposed by SEQRA” is annulment of land use determinations premised on deficient analysis); see also Anderson v. Town of Chili 72 Planning Bd., 12 N.Y.3d 901, 902 (2009) (annulling permit and ordering remand where, per dissent below, 59 A.D.3d 1017, 1019-20 (4th Dep’t), SEQRA “concerns . . . [were] sufficiently serious that they should have been addressed explicitly”).20 Nothing in the existing Final EIS adequately or effectively substitutes for environmental analysis of the plan’s impact on parks. The Final EIS simply characterized the parcels as generic “open spaces” A.1:449-53, without confronting the fundamental requirement that parkland be “set apart for recreation of the public.” Williams, 229 N.Y. at 253. Had the Final EIS—and in turn, the City— accounted for the parcels’ parkland status, the City could not have approved the Sexton Plan as presented. After all, the Plan will render LaGuardia Corner Gardens “inaccessible for approximately 39 months.” A.1:28 (Trial Op. at 15) (citing A.2:209). The City also granted NYU highly intrusive easements allowing 20 On remand, the CPC may decide how to address the defect in the Final EIS, subject to Article 78 review. See, e.g., Bronx Comm., 20 N.Y.3d at 152, 155-56 (requiring lead agency to “supplement its EIS” pursuant to 6 NYCRR 617.9(a)(7)); see also Vill. of Westbury v. Dep’t of Transp., 75 N.Y.2d 62, 65- 66, 69-70 (1989) (SEQRA violation properly remedied through annulment of agency’s SEQRA determination, remand “for further consideration,” and injunction against construction “until completion of proceedings complying with SEQRA”). The CPC must, of course, engage in “thoughtful agency decisionmaking” that accounts for “all of the regulatory and planning changes” necessary to satisfy SEQRA. Riverkeeper, Inc. v. Planning Bd. of Southeast, 9 N.Y.3d 219, 232-33 & n.1 (2007). 73 use of the Mercer Playground and LaGuardia Park for construction staging that run for 20 years or more, and total displacement of the Dog Run. A.3:737, 743. While parcels of mere open space may be viewed as interchangeable, the common law prevents parkland from being treated in this manner, and protects the public from even “temporary” deprivation of parkland for non-park purposes. See Van Cortlandt, 95 N.Y.2d at 627, 631-32. The Final EIS further presumed that the protected parcels can be used as construction staging sites (A.3:737), and this determination is integral to the Sexton Plan as a whole. Construction staging in New York City implicates noise, vehicular and pedestrian safety, and traffic concerns. A.2:291. Neither NYU nor the City has considered how NYU would stage any construction if the four parks are unavailable, or examined the ensuing environmental impact. Those tasks require annulment, remand, and reconsideration. B. The City’s Approvals Do Not Extend To Any Partial Construction NYU Might Now Pursue Because NYU’s Plan Rested On The Unlawful Alienation Of All Four Parcels. Annulment of the City’s approvals of NYU’s applications and an injunction against any construction absent a new City review and approval process are independently warranted because NYU presented and obtained approval for the Sexton Plan as an integrated whole, and any partial project NYU might now pursue would differ materially from the Sexton Plan as the City approved it. Both courts 74 below erred in failing to grasp the need for this relief—especially since NYU vowed to proceed with construction of only the “Zipper” complex after the trial court’s ruling. Petrs. App. Div. Br. 58-59 & n.25. NYU presented the Sexton Plan to the City as a comprehensive, integrated development project, and the City reviewed it under SEQRA and ULURP as such. A.3:740-52. City Council members justified their approval of the Sexton Plan by claiming that it struck an appropriate “balance” between the private university’s purported academic needs and the neighborhood’s public interests. See, e.g., A.5:1565, 2067. And alienating each of these four parks is essential to the integrated whole: Over a 20-year period, the Sexton Plan calls for using Mercer Playground and LaGuardia Park for construction staging, rendering LaGuardia Corner Gardens “unavailable,” and totally displacing the Dog Run. A.2:323, 488; 3:737, 743; 6:2136-37. Here, NYU and the City nevertheless argued below that NYU is free to pursue a “Zipper”-only approach on the site of the Dog Run—furnishing NYU with “one mixed-use building with academic, retail, gymnasium, community facility and potential dormitory and/or faculty housing use”—without further City review and approval under ULURP. A.3:811. If all four contested parcels are held to be parkland, NYU cannot build anything on the Dog Run site (or the other three parcels) without the State Legislature’s approval. Alternatively, if this Court were 75 to affirm the trial court’s holding that Mercer Playground, LaGuardia Park, and LaGuardia Corner Gardens (but not the Dog Run) are protected parks, NYU still could not commence construction of the Zipper Building at this juncture. That single-building approach obviously would not strike the same balance as the plan NYU presented to the City. Having designed and championed the Sexton Plan as an integrated whole, NYU is now constrained to adhere to that plan. It cannot chop it up and proceed with isolated components. If NYU elects a new “Zipper”- only plan, it must seek new approval of that plan under ULURP and other governing law: an agency’s approval of a land-use plan as presented to the agency necessarily constrains the applicant to pursue the plan as approved and forecloses the applicant from significantly diverging from that plan. See London v. Art Comm’n of N.Y., 190 A.D.2d 557, 558-59 (1st Dep’t 1993) (new plan to remove acoustic bandshell in Central Park “differed materially” from plan previously reviewed and approved by landmarks commission, requiring de novo review and approval).21 21 The law disfavors dissection of an integrated land-use plan into segments substantially different from the approved whole, and a private proponent of such a plan cannot simply proceed with one segment alone, with no further review by the approving municipal agencies. Cf. City of N.Y. v. Zahav LLC, 106 A.D.3d 418, 418-19 (1st Dep’t 2013) (where “rezoning was a necessary and integrated element” of a “comprehensive redevelopment plan,” condemnation valuation must be tied to that rezoning); Westbury, 75 N.Y.2d at 69-70 (SEQRA requires analyzing impacts of “combined effects” of projects (Cont’d on next page) 76 CONCLUSION For the foregoing reasons, this Court should issue an order with the following three remedial components to redress the City’s violations of law: First, this Court should reverse the judgment of the Appellate Division in its entirety, and reinstate the trial court’s judgment as to the three parcels that the trial court held were dedicated parkland—Mercer Playground, LaGuardia Park, and LaGuardia Corner Gardens. This Court should further reverse the trial court’s judgment as to the Mercer-Houston Dog Run and modify that judgment to hold that the Dog Run is also dedicated parkland. See Dalton, 87 N.Y.2d at 393; Dulberg, 277 N.Y. at 20-21. Thus, this Court should enter judgment for Petitioners on the entirety of the First Cause of Action in the amended Article 78 petition. Because any project NYU now pursues would differ materially from the Sexton Plan as the City approved it, the relief on the First Cause of Action properly includes both reinstatement of the injunction crafted by the trial court and annulment of the City’s approvals of NYU’s applications. Second, in light of the status of the four parcels as parks, the Final EIS is invalid under SEQRA, and this Court should enter judgment for Petitioners on the (Cont’d from previous page) “not part of a single formalized plan” when “design of each is dependent on the other”). 77 Fourth Cause of Action in the amended Article 78 petition. Because the Final EIS is invalid, the Court should also annul the City’s approvals of NYU’s applications. Third, this Court should enter an order enjoining NYU from commencing any construction in connection with any part of the Sexton Plan, unless and until the State Legislature authorizes the alienation of all parcels found to be dedicated parkland. COURT OF APPEALS OF THE STATE OF NEW YORK DEBORAH GLICK, et al., Petitioners-Respondents-Appellants, -against- ROSE HARVEY, et al., Respondents, VERONICA M. WHITE, et al., Respondents-Appellants-Respondents, and NEW YORK UNIVERSITY, Necessary Third-Party Avnel lant-Respondent. STATE OF NEW YORK ) ss.. COUNTY OF NEW YORK ) New York Court of Appeals No. APL-2015-00053 New York County Clerk's Index No. 103844/12 AFFIDAVIT OF SERVICE ANGEL S. ARIAS, being duly sworn, deposes and says: 1. I am not a party to this action, am over 18 years of age, and reside in Richmond Hill, New York. 2. On April 2, 2015, I personally served three (3) copies of the APPELLANTS' BRIEF and APPENDIX in this appeal on the parties by delivering true copies of the above mentioned pleadings, via hand delivery, to the addresses listed below and designated by the parties for that purpose. CORPORATION COUNSEL OF THE CITY OF NEW YORK Zachary W. Carter 100 Church Street New York, New York 10007 Attorney for the City Respondents-Appellants- Respondents COOLEY LLP Alan Levine Celia Goldwag Barenholtz Genevieve G. York-Erwin Michael Blasie 1114 Avenue of the Americas New York, New York 10036 Attorneys for Necessary Thi~^d-Party Appellant- RESpo~zdE~zt Sworn to before me on this 1st day of April, 2015 G~-- Notary Public MONICA MALDONADO Notary Public, State of New York No. 01 MA6211620 f~ualified in Queens County Commission Expires 09/21 /2017 2