New York’s highest court has made it harder for communities to protect areas that everyone thinks of as parks but that have not gone through a formal process of dedication as parkland.
The Sierra Club and others had challenged New York City’s decision in 2012 to take away several long-used parks on City land in Greenwich Village to support NYU’s expansion dreams. The case turned on the public trust doctrine. As the court explained this principle, “a land owner cannot alienate land that has been impliedly dedicated to a public use without obtaining the approval of the Legislature.” Our argument was that, when the City leaves the land vacant, and allows people to stroll through it and enjoy the grass and the trees and so forth, and this situation persists for years, then it has been impliedly dedicated to public use, because the public considers it a park.
The court, however, looked to the City’s intent rather than to the public perception. These parcels were mapped as streets on City maps and were under the jurisdiction of the New York City Department of Transportation (DOT). There were some licensing agreements between DOT and the Department of Parks and Recreation (DPR) and private nonprofits, for uses such as a children’s playground, but no transfer of jurisdiction from DOT to DPR had taken place. The final court decision held that nothing in those agreements undercut the City’s argument that it had not intended to dedicate the areas as parkland. This lack of intention was what was most important, as opposed to the “facts on the ground” that these parcels actually looked like parks and were being used as parks rather than as streets. Therefore, the City’s deal with NYU did not require the consent of the Legislature.
Although destroying a park requires legislative consent, creating or preserving one does not. Regardless of any court decision, the City could simply have decided to preserve these parcels as parks. Instead, our elected officials went along with NYU’s plan for expansion, at the cost of neighborhood open space.
The Legal Process
The case was brought to save four small parks. The first court that heard the case agreed with the petitioners that three of the four parcels were indeed parkland, despite the lack of formal dedication, and that the City had therefore acted illegally in allowing NYU to end the use of those areas as parks. On appeal, however, the intermediate appellate court reversed the lower court and allowed the construction to go forward on all four. That decision has now been affirmed by the Court of Appeals.
NYU has promised that, when its construction is complete, some of the affected area will be returned to park use. In response, the Sierra Club’s brief pointed out 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.”
The destruction of the four Greenwich Village parks to accommodate NYU is a done deal. Nevertheless, elected officials can still be pressured to preserve other sites.
Other Locations Here and Across the State
One immediate issue in New York City is that there are many parcels under the control of the NYC Department of Housing Preservation and Development (HPD) that are being used as community gardens but that are on HPD’s list of development sites. The NYC Group has urged HPD to remove those parcels from the list. The decision from the Court of Appeals makes it unlikely that any legal challenge would succeed if HPD were to go ahead with destroying the gardens.
This problem is not limited to New York City. Statewide law includes the basic principle of protecting parkland from alienation, but it also includes this narrow reading of what constitutes parkland that qualifies for the protection. Around the state, there could be trouble brewing for any site that the public thinks of as a park but that doesn’t have that legal status.
One takeaway is that, when there is land that is thought of as “park” in the colloquial sense, activists should consider seeking formal mapping as parkland. It may be easier to have the land dedicated as a park if the issue arises before some greedy developer or expansion-crazy university targets the land. Another takeaway is that elected officials should start recognizing the value of parks.
The brief for the Sierra Club was prepared by Paul DerOhannesian II and Danielle Smith of the Albany law firm of DerOhannesian & DerOhannesian. We are grateful for their pro bono work on behalf of the environment.
The full text of the Court of Appeals decision is available here.