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, 2015APL-2015-00053 Court of Appeals of the State of New York DEBORAH GLICK, et al., Petitioners-Respondents-Appellants, For A Judgment Pursuant to CPLR Article 78 -against- ROSE HARVEY, et al., Respondents, -and- VERONICA M. WHITE, et al., Respondents-Appellants-Respondents, -and- NEW YORK UNIVERSITY, As a Necessary Third-Party, Appellant-Respondent. AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONERS-RESPONDENTS-APPELLANTS PAUL DEROHANNESIAN II DEROHANNESIAN & DEROHANNESIAN Attorneys for Proposed Amicus Curiae Sierra Club 677 Broadway, Suite 707 Albany, New York 12207 Date: April 23, 2015 (518) 465-6420 i TABLE OF CONTENTS SUMMARY OF ARGUMENT ................................................................................. 1 CORPORATE DISCLOSURE STATEMENT ......................................................... 1 STATEMENT OF FACTS AND INTEREST........................................................... 2 ARGUMENT ............................................................................................................. 3 I. The Four Parks At Issue Here Are Vital To The Individuals Living And Working In Greenwich Village .................................................................... 3 II. Allowing The Conveyance Of The Four Parks Could Lead To The Loss Of Public Lands And Open Spaces Elsewhere In New York State ............. 8 CONCLUSION ........................................................................................................11 ii TABLE OF AUTHORITIES Statutes New York Environmental Conservation Law § 6-0107 ............................................ 9 Rules 22 New York Codes, Rules and Regulations § 500.1 ................................................ 1 1 SUMMARY OF ARGUMENT In summarily deciding against Petitioners-Respondents-Appellants, the Supreme Court, Appellate Division, First Department, failed to consider that parks, open spaces and wildlife are crucial to the environment and public wellbeing. Indeed, the record establishes that Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens, and the Mercer-Houston Dog Run – the four existing parks at issue here – are vital to the surrounding community. Their conveyance and effective destruction would gravely diminish the quality of life for the community members who use and rely on these parks on a daily basis. While the foregoing constitutes sufficient basis for reversal, the implications of the First Department’s decision go far beyond the Greenwich Village community. Because no appellate court has ever framed such explicit requirements for the implied dedication doctrine and ignored the conduct of the parties and use of the land, the Appellate Division’s decision emasculates the implied dedication doctrine, threatening the destruction of open spaces and public parks across New York State. CORPORATE DISCLOSURE STATEMENT Pursuant to 22 NYCRR § 500.1(f), amicus curiae Sierra Club states that it is a not-for-profit organization and has no parents or subsidiaries. Sierra Club’s sole affiliate is The Sierra Club Foundation. 2 STATEMENT OF FACTS AND INTEREST The facts at issue here are well known to this Court and fully briefed by the parties. Accordingly, with the exception of the following particularly pertinent facts, a recitation of the facts will not be included.1 Sierra Club is a national not-for-profit organization. It was incorporated in 1892 for the purpose of preserving the Earth and its natural resources, including parks and wildlife. Sierra Club also focuses on educating the public on responsible practices involving the Earth’s resources. As such, it takes a keen interest in any lawsuits which, as here, have the potential to encroach on those natural resources and open the door to future invasions and threaten principles of law such as the implied dedication doctrine which have been erected to protect natural resources and the environment. The gravamen of this matter is whether four parks in the historic Greenwich Village community of New York City can and should be transferred to New York University (“NYU”). It should be noted that NYU has a history of converting public lands in Greenwich Village into private property with the promise of creating or maintaining replacement green spaces. Unfortunately, those promises have not been kept. For example, in connection with the construction of Coles 1 For a full recitation of the facts, reference is made to the Statement of Facts contained in the Brief filed on behalf of Petitioners-Respondents-Appellants, pp. 10-27. 3 gym, NYU agreed to maintain a portion of the parkland at issue here. (A612).2 However, as noted by the Manhattan Community Board 2 (“CB2”): NYU abdicated its commitment to maintain the strip, the condition and use of this area is poor with the exception of a popular dog run that is well maintained by a membership association. Soon after construction, the water playground and “reflecting garden” sitting area were closed because the ground subsided, and they have not been restored. (A612). Mr. James Gibbs, a member of the Mercer-Houston Dog Run, similarly noted that “the park spaces to the north of the dog run have been allowed to fall into disrepair by NYU in violation of their agreement to maintain them.” (A602). ARGUMENT I. The Four Parks At Issue Here Are Vital To The Individuals Living And Working In Greenwich Village In rather summarily deciding that the four parks at issue here (Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens, and the Mercer-Houston Dog Run) could be transferred and effectively destroyed, the Appellate Court did not consider the impact on the surrounding community. However, the record establishes that these four parks are crucial to the enjoyment and wellbeing of the surrounding neighborhoods and that their destruction would be nothing less than devastating to the community. Indeed, the record contains statements from 2 References to “A” are to the Appendix filed by Petitioners-Respondents- Appellants. 4 community members quite literally pleading for the continued use and enjoyment of the parks they have come to love. At the outset, the record establishes that Greenwich Village, like many urban settings, has a limited amount of green space such that any decrease in public parkland will be acutely felt by the community. For example, Ms. Kathryn E. Freed, Esq., a former New York City Council Member representing the area in question and current Justice of the Supreme Court, New York County, noted that her District was “suffering from a severe lack of such [park] spaces.” (A3167). One consequence, as pointed out by community member Ms. Deborah Glick, who represents Greenwich Village in the State Assembly, is that “[t]he loss of any open space in Greenwich Village will be felt significantly because it cannot be replaced.” (A3113). Mr. Alan J. Gerson, Esq., a former member of the New York City Council, also described the parks as “integral to the livability and character of the neighborhood.” (A3012). Photographer Hubert J. Steed likewise considers the parklands as “precious.” (A3154). Furthermore, as discussed below, each of the four parks serves a specific purpose such that not one should be destroyed. Parks and open spaces, such as the Mercer Playground, serve the public wellbeing and health. For example, according to Dr. Vicki Papadeas, a pediatrician and mother in the Greenwich Village area, Mercer Playground “has served as a park where the neighborhood children freely ride bicycles or scooters, 5 draw with chalk, or play tic-tac-toe.” (A3184). Dr. Papadeas further noted that “the community absolutely needs this open space for the health and wellness of the children.” (A3185). “As a pediatrician, [Dr. Papadeas] see[s] more and more studies that indicate children develop and learn better if they have a place to be outside. It is simply impossible to ignore the link between physical activity and brain development.” (A3185-3186). Dr. Papadeas’ comments are confirmed by Ms. Ellen Maddow, another mother living in the community. According to Ms. Maddow, Mercer Playground was a constant in her daughter’s life and that of her daughter’s school friends. (A3134). Ms. Maddow’s “daughter played in the park sometimes twice a day, as her [daughter’s] nursery school always took the children to the children’s park.” (A3134-3135). Mr. Steed also noted that Mercer Playground has been host to various public projects, including the UNESCO Tile Project. (A3156). LaGuardia Park also plays a crucial role in the Greenwich Village community. Ms. Anne Hearn, a founding member and Vice President of Friends of LaGuardia Place, described LaGuardia Park as “a green oasis in Greenwich Village, featuring a canopy of mature trees, green walkways and a statue of former NYC Mayor Fiorello La Guardia.” (A3108). 6 Mr. Steed, a photographer, also noted that LaGuardia Park serves the community in several important ways, including as a venue for assembly. (A3155). For example, when the weather is warm, people often gather for outdoor meetings and community events, and it has always been a popular spot for community members to go for fresh air and walk among the greenery. LaGuardia Park also acts as a green “curtain” that divides the storefronts and LaGuardia Place. The park was, and continues to be, a very aesthetically pleasing and necessary green space in Greenwich Village. Juxtaposed against the LaGuardia Place retail strip, it also serves as a barrier that divides the storefronts—some of which, from time to time, offer al fresco dining—from the street noise. (A3155). As for LaGuardia Corner Gardens, Ms. Ellen Horan described the green space as “an award-winning community garden that hosts perennial flowers, shrubs, fruits trees and vegetable plants.” (A3118). Another community member likewise noted that LaGuardia Corner Gardens has been “a beloved community garden for more than three decades.” (A3144). Mr. Steed similarly stated that it “is one of the loveliest community gardens [he has] photographed, offering a variety of plan[t]s that one does not see in other Greenwich Village parks.” (A3155-3156). Ms. Judith Manaco-Callet considers the Gardens as “a breath of fresh air for Greenwich Village and the surrounding community.” (A3161). She enjoys 7 “sit[ting] and relax[ing] in the green, open space and talk[ing] with the gardeners.” (A3161). Dr. Eileen Ain, eloquently described the Gardens as “beauty, balance, clean air and bird songs.” (A1400). Ms. Rhoma Mostel similarly argued that trading the Gardens for NYU construction will destroy light, air, mature and verdant green space and increase density, traffic, shade and pollution. It will finally and irrevocably destroy the very core of Greenwich Village leaving nothing to future generations and destroy the lives and health of current generations who will be forced to live in a construction zone for a good part of their lives. (A14-1401). The fourth park, the Mercer-Houston Dog Run, is also an integral green space in the community. Indeed, according to Mr. Stern, “[t]he Mercer-Houston Dog Run has long been considered a vibrant community asset.” (A3146). Mr. Steed similarly noted that the Dog Run “provides a much-needed area for the community to exercise their pets in a safe, enclosed space.” (A3156). Along with being aesthetically pleasing, the Dog Run also provides an important community service and public health role. According to Mr. James Gibbs, the Dog Run Board “keep[s] records and ensure[s] that all dogs are vaccinated and licensed according [to] the NYC laws, that they stay healthy, and that problem dogs or dogs that might become aggressive are treated and trained.” (A602). 8 It is also worth noting that the above parks are not only critical to the individuals living and working in Greenwich Village, but also to the wildlife that call these green spaces home. As noted by CB2, if the conveyance is allowed to go forward, Red-tailed hawks, recently making their homes in the neighborhood, would lose the mature trees and unbuilt spaces that they depend upon. Additional garbage flows from the new buildings would also bring vermin, and the poisons used to control these rodents also imperil these birds as well as other animals in the area. (A621). The foregoing establishes that the four parks at issue are vital to the community. This is especially so given the significant lack of green spaces in the Greenwich Village area. Despite the outpouring of community support, the Appellate Court failed to consider the impact its decision would have on the community. Accordingly, it is respectfully submitted that this Court should consider this impact and grant the entirety of the relief sought by Petitioners- Respondents-Appellants, including entering an order enjoining NYU from commencing any construction. II. Allowing The Conveyance Of The Four Parks Could Lead To The Loss Of Public Lands And Open Spaces Elsewhere In New York State As discussed above, it is undeniable that the four parks at issue here are beloved and integral to the wellbeing by the surrounding community. 9 Accordingly, it is respectfully submitted that this basis alone is sufficient for this Court to grant Petitioners-Respondents-Appellants’ appeal in its entirety. But more importantly the loss of these parks and open spaces represents the potential loss of parks and open spaces elsewhere in New York State. It is therefore respectfully submitted that this Court should also grant the appeal on an entirely different basis: this Court’s decision will impact parks elsewhere in the State of New York – in green and open spaces far beyond Greenwich Village.3 Sierra Club believes the impact of this case reaches from Greenwich Village to every community that has open spaces that have been utilized by the public as parks and to every community member under the belief that these open spaces are the public’s and under the ultimate control of the New York State Legislature. Under the Appellate Division's holding, the implied dedication doctrine would be seriously undermined as a means of preserving parks and open spaces. As a result, the Legislature would lose its function as a gatekeeper of parkland alienation, and some local communities would usurp the previous authority of the Legislature. The Sierra Club believes that such a change would lead to serious 3 It is also worth noting that preserving public green spaces is considered an important public interest under New York State’s Smart Growth Public Infrastructure Policy Act. See N.Y. Envtl. Conserv. Law § 6-0107(2)(d) (one of the criteria under the Act is “to protect, preserve and enhance the state's resources, including agricultural land, forests, surface and groundwater, air quality, recreation and open space, scenic areas, and significant historic and archeological resources”). 10 environmental harm. Especially at a time of growing concern over potentially radical climate change, it remains imperative for the Legislature to retain the authority to conserve the state's existing green spaces. Another consequence would be to facilitate the improper transfer of public lands to the private sector by localities that acquiesce to converting open spaces and parks to private use. The Appellate Division precedent would create excessive scope for local government to privatize open spaces and land that was traditionally utilized as parks. Citizens and community groups will not be well armed to fight a locality’s willingness to transfer land to private use. Without a strong and vibrant public trust doctrine, including provision for the implied dedication of parkland, this precedent would lead to the gradual destruction of public lands and open spaces. The unfortunate truth is that many communities do not have the resources (financial or otherwise) to combat the sale and destruction of their green spaces. This is especially true when faced with large corporate opponents with seemingly endless financial resources. Indeed, when considering the cost and time associated with obtaining the necessary documents to petition the court for redress (such as environmental impact statements and affidavits from individuals living in the community), as well as the substantial sums required to obtain legal representation, it is a wonder that any communities have the ability to even attempt to protect their public parklands. If this Court finds against Petitioners-Respondents-Appellants, and effectively permits the parks at issue to be demolished together with the implied dedication doctrine, this far-reaching result will only make it that much easier for other parklands throughout New York State to be destroyed. This impact will be felt most acutely in communities where its members are financially unable to challenge the transfer of lands, even if those challenges would be victorious. Accordingly, it is respectfully submitted that this Court should reverse the Appellate Court's decision and grant Petitioners-Respondents-Appellants' appeal in its entirety, including entering an order enjoining NYU from commencing any construction. CONCLUSION Wherefore, Sierra Club respectfully requests that this Court reverse the decision of the Supreme Court, Appellate Division, First Department, and grant Petitioners-Respondents-Appellants' appeal in its entirety. Dated: April23 , 2015 Albany, New York 11 annesian n DerOhannesian & DerOhannesian Attorneys for Amicus Curiae Sierra Club 677 Broadway, Suite 707 Albany, New York 12207 (518) 465-6420