BY LINCOLN ANDERSON | Updated Wed., Oct. 15, 9 p.m. In a stunning reversal in the community’s battle against the “N.Y.U. 2031” supersized expansion plan in the South Village, Tuesday a panel of Appellate Division judges threw out a January court ruling, effectively clearing the way for the entire, massive, nearly 2-million-square-foot, four-building project to move forward.
Randy Mastro, of Gibson Dunn, one of the attorneys for the community plaintiffs, immediately assured that they would appeal to the state’s highest court, the Court of Appeals.
In a statement, N.Y.U. Faculty Against the Sexton Plan, said, “We are disappointed that the Appellate Division overturned the decision that would keep our precious Village parks — Mercer Playground, LaGuardia Park and LaGuardia Corner Gardens — protected from N.Y.U.’s unnecessary and ruinous expansion plan. However, we will continue to seek justice in this matter and move on to the New York State Court of Appeals.”
Many of the school’s faculty live on the university’s superblocks and dread, in the worst-case scenario, what they call a “20-year construction project,” if the full plan is allowed.
Dismissively referring to “some strips of land,” university spokesperson John Beckman, hailed Tuesday’s decision.
“N.Y.U. is very pleased by today’s unanimous decision from the Appellate Division,” he said, “which strongly upheld the city’s and the university’s positions, reaffirmed that the approvals process was properly followed, and reversed the lower court’s designation of some strips of land on the superblocks as ‘implied parkland.’ The need for additional academic space is clear and has been reaffirmed by a faculty-led committee, and it is now also clear that the university has the legal right to proceed with this project.”
The plaintiffs on the community lawsuit include numerous individuals and community groups, as well as the Greenwich Village Society for Historic Preservation, plus lead plaintiff Assemblymember Deborah Glick.
“This decision by the Appellate Court is disappointing and flies in the face of logic and common sense,” Glick said. “New Yorkers are desperate to maintain the little parkland and open space they have. The N.Y.U. 2031 plan disregarded the law when it came to the ‘alienation’ of parkland and will result in the razing of public green space that is essential for the community. N.Y.U.’s claim that their plan will somehow allow for more open space is laughable and completely inaccurate.
“We will continue to press forward and appeal this ruling and look to the higher court to protect green space that has for decades been used by the community.”
Alexander Meadows, who is running against Glick in the Nov. 4 election, also issued a statement.
“I stand in solidarity with the students, faculty and my neighbors against today’s disastrous ruling regarding N.Y.U.’s expansion plan,” the Progressive Party candidate said. “Today’s ruling is a setback for our community but the fight is not over.
“Justice Donna Mills’s decision in the lower court affirmed what we in the community have said all along: N.Y.U.’s expansion is unlawful and will destroy our neighborhoods. The state Legislature cannot give the public park strips on Mercer St. and LaGuardia Place to N.Y.U. without approval. The gardens and playground on the city-owned land N.Y.U. would co-opt were developed and have long been sustained by local residents on behalf of our open-space-starved neighborhood.”
In a case viewed as potentially having wide-ranging ramifications for many city-owned properties, the de Blasio administration joined N.Y.U. in appealing Mills’s ruling.
The panel’s decision came swiftly. Only last month, the parties had gone to court for the hearing before the Appellate judges. Lawyers representing the plaintiffs, N.Y.U. and the city made brief 15-minute arguments, then answered questions from the judges.
In their Oct. 14 ruling, the Appellate judges panel were unequivocal in their thinking that the open-space strips along LaGuardia Place and Mercer St. — on the eastern and western sides of the university’s two South Village superblocks, between W. Houston and W. Third Sts. — are not parkland.
Back in January, though, State Supreme Court Justice Mills had ruled that three of these strips were “impliedly” parkland, based on their years of use as park space and the city’s conspicuous treatment of them as such.
In an affidavit submitted in support of the plaintiffs’ suit, former Parks Commissioner Henry Stern stated that, during his tenure, N.Y.U. had repeatedly blocked the Parks Department’s efforts to have jurisdiction of the city-owned strips formally transferred from the Department of Transportation to Parks. The strips were remnants from a street-widening project in the mid-20th century.
Mills further said in her ruling that for the strips to be used by N.Y.U. in any way for its construction purposes — such as for staging areas or to facilitate access for construction vehicles to the construction sites — would be illegal unless these properties were first “alienated” by the state Legislature, which would make them not public parks anymore.
But in Tuesday’s shocking about-face, the Appellate Division panel of judges couldn’t have disagreed with her more.
In their decision, they wrote, in part, while citing various precedent-setting cases: “Where, as here, there is no formal dedication of land for public use, an implied dedication may exist when the municipality’s acts and declarations manifest a present, fixed and unequivocal intent to dedicate. In determining whether a parcel has become a park by implication, a court should consider the owner’s acts and declarations and the circumstances surrounding the use of the land. The burden of proof rests on the party asserting that the land has been dedicated for public use.
“Here, petitioners have 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. While the City has allowed for the long-term continuous use of parts of the parcels for park-like purposes, such use was not exclusive, as some of the parcels (like LaGuardia Park) have also been used as pedestrian thoroughfares. Further, 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. Moreover, the parcels have been mapped as streets since they were acquired by the City, and the City has refused various requests to have the streets de-mapped and rededicated as parkland.”
In addition, the panel rejected the arguments the plaintiffs made in their own appeal to aspects of Mills’s ruling, including their contention that the entire, seven-month-long city review process — the Uniform Land Use Review Procedure — should be redone from square one, since Mills’s conclusions fundamentally changed what could be built.
“Further, the court correctly concluded that there was no need to restart the ULURP process to review modifications reducing the project’s size and scale,” the panel stated in their decision.
Under Mills’s January ruling, at least two, and possibly three of the university project’s buildings would have been unable to be constructed. However, Mills did rule that — unlike the three other open-space strips — the one containing the Mercer-Houston Dog Run in its southern half was not parkland, meaning N.Y.U. could proceed with its plans to use part of this strip to build its new “Zipper Building” on its current Coles Gym site.
The community plaintiffs also appealed Mills’s ruling on this dog-run strip, but the Appellate panel upheld the State Supreme Court justice’s position that it is not parkland.
Andrew Berman, executive director of G.V.S.H.P., expressed confidence that — based on previous legal precedent relevant to this case — the plaintiffs will prevail at the next level in the courts.
“We believe the First Department panel made the wrong decision today in overturning Supreme Court Justice Donna Mills’s decision preserving and protecting New York City parkland, and allowing the city to give this land away to N.Y.U. for its deeply unpopular and bloated expansion plan,” Berman said.
“Mills was correct in identifying this much-needed public green space as parkland which cannot be alienated by the city or N.Y.U. We continue to believe that the sanctity of this principle should be upheld, and we are confident that it will be upon appeal.
“Since the City Council, City Planning Commission and borough president first gave away public park space to N.Y.U., and overturned longstanding deed restrictions, zoning protections and open-space preservation requirements to allow N.Y.U. to move ahead with its massive plan, we knew we were up against a lot,” Berman said. “But I believe that, in the end, the best interests of the city, the Village and even the university, as articulated by its faculty, workers and students who oppose this plan, will prevail, and the courts will halt N.Y.U. 2031.”
The preservationist added that, adding insult to injury, the site of the current Morton Williams supermarket, at the corner of Bleecker St. and LaGuardia Place, which had been earmarked for a new public school as part of the university’s plan, is now set to revert to N.Y.U. control by the end of this year unless the Department of Education quickly commits to having a school there.
“It just shows what a sham this whole plan was,” Berman said, “and how it benefits the university at the expense of the public and the community.”
