BY LINCOLN ANDERSON | Updated Wed., July 1: In a crushing blow for opponents of the N.Y.U. 2031 mega-development plan, on Tuesday morning the Court of Appeals — the state’s highest court — ruled that the university’s full project can proceed.
The way is now cleared for N.Y.U. to shoehorn four new buildings — with a total of nearly 2 million square feet — onto its two South Village superblocks, between Houston and W. Third Sts. and LaGuardia Place and Mercer St.
The case centered on whether four open-space strips along Mercer St. and LaGuardia Place were “implied parkland” — as a lower-court judge had ruled that three of them, in fact, were — or merely leftover street parcels, a permanent use for which had yet to be determined.
The plaintiffs argued that N.Y.U.’s plans violated the Public Trust Doctrine, under which parkland — in this case, the open-space strips — must first be “alienated” by the state Legislature before it can be put to other uses. As such, the case would be precedent setting, the project’s foes warned.
But the Court of Appeals, in its decision, said that while the public might have understood the open-space strips to be parkland, that did not matter.
The strips include Mercer Playground, LaGuardia Corner Gardens, LaGuardia Park and the Mercer-Houston Dog Run.
N.Y.U. needs to use Mercer Playground and LaGuardia Park to access the interior of the northern superblock during the construction of two planned new “infill” buildings between the two long slabs of Washington Square Village. After the construction, these open-space strips on this block will become permanent New York City parkland — although N.Y.U. would retain an easement right to use them in the future, as it deemed necessary.
Meanwhile, on the southern superblock, which sports the three-building I.M. Pei-designed Silver Towers complex, the plan is for the dog run on Mercer St. to be relocated nearby on the same block, allowing N.Y.U. to build the project’s first building — a new, larger structure currently known only as the “Zipper Building” — on the current Coles gym site.
LaGuardia Corner Gardens, the plaintiffs argued, would be negatively impacted by shadows from another building that the university would construct on the current Morton Williams supermarket site.
The plaintiffs were a broad coalition, including Assemblymember Deborah Glick, N.Y.U. Faculty Against the Sexton Plan, the Greenwich Village Society for Historic Preservation and more than a dozen community and preservation groups and neighborhood residents.
Mayor de Blasio’s administration argued in court in support of the N.Y.U. plan. A lawyer for N.Y.U. also argued for the plan, though the community lawsuit was technically lodged against the city over the City Council’s near-unanimous approval of the N.Y.U. 2031 plan three years ago.
The open-space strips are currently administered under various programs, such as GreenStreets (LaGuardia Park) and GreenThumb (LaGuardia Corner Gardens), while Mercer Playground actually sports Parks Department signage and is even listed on the department’s Web site. However, the judges ruled that the city’s written agreements regarding these properties did not indicate that these existing arrangements were considered permanent.
At the conclusion of their seven-page decision, the judges wrote, “[The] documents’ restrictive terms show that, although the City permitted and encouraged some use of these three parcels for recreational and park-like purposes, it had no intention of permanently giving up control of the property. And, as the Appellate Division observed, ‘the City’s refus[al of] various requests to have the streets de-mapped and re-dedicated as parkland’ further indicates that the City has not unequivocally manifested an intent to dedicate the parcels as parkland. That a portion of the public may have believed that these parcels are permanent parkland does not warrant a contrary result. Petitioners did not establish the City’s unequivocal intent to permanently dedicate this municipal property, as there was evidence that the City intended the uses to be temporary, with the parcels to remain under the City’s control for possible alternative future uses.”
The court agreed with earlier rulings at the State Supreme Court and Appellate Division levels that the Mercer-Houston Dog Run “was not used as parkland,” concluding that the plaintiffs’ appeal of this point “lacked merit.”
Justice Donna Mills, in early 2013, ruled that three of the four open-space strips were parkland, but her ruling was overturned on appeal by the Appellate Division, setting the stage for the “rubber match” at the Court of Appeals.
Attorneys from Gibson Dunn & Crutcher argued the case pro bono for the opponents.
“It’s a sad day for those of us who care about our cherished public parklands,” said Randy Mastro, a partner at the law firm. “New York has taken a giant step backwards in protecting these precious resources.”
Mark Crispin Miller, president of N.Y.U. FASP, predicted the ruling would ultimately backfire against the university.
“Although N.Y.U.’s managers perceive it as a victory,” he said, “this ruling will eventually turn out to be just as disastrous for the university itself as it will be for Greenwich Village, and the city overall.”
In a statement, John Beckman, the university’s spokesperson, said, N.Y.U. was “pleased and gratified” by the Court of Appeals decision.
“This project has been the subject of years of planning and review, been approved overwhelmingly by the City Planning Commission and City Council, and now has been given the go-ahead by the state’s highest court,” Beckman said. “We look forward to moving ahead with the project, which is vital to meeting N.Y.U.’s pressing academic space needs. With the court’s ruling, we will now undertake intensive planning, and we will have more specific information on a timetable for the closing of Coles and construction in the coming months.
“We are grateful for the City’s support of this project and its vigorous defense of the City Council’s approval of the project.
“The project not only keeps N.Y.U. academically competitive and helps fulfill our educational mission, it also benefits New York… . The project will produce jobs and economic benefits, create public open spaces — including playgrounds and planted seating areas — that will be mapped as parkland and maintained by N.Y.U., and enable N.Y.U. to contribute to the city’s idea economy and highly educated workforce by recruiting top scholars and top students. Moreover, the decision removes the threat to thousands of beloved green and recreational spaces around the state posed by the opponents’ legal theories.
“We look forward to working with our neighbors and the community as we move forward with this project.”
The project’s opponents called convoluted and ludicrous the argument by N.Y.U. and the city that a ruling against the plan would have meant that less open space would be designated for temporary park uses around the state.
Terri Cude, co-chairperson of Community Action Alliance on N.Y.U. 2031, or CAAN, had been helping out at Senior Action Day at the L.G.B.T. Community Center, on W. 13th St., on Tuesday morning when the decision came down, and first learned about it from The Villager. She had been religiously monitoring the court’s Web site every day for a decision on the case.
“What a sad day for New York City,” Cude said, “for Greenwich Village, for parks, for people who believe in a livable city. We made such a clear case, and have been making a clear case since 2007, why this N.Y.U. 2031 plan is such a gross overreach.
“This is just crushing,” Cude added. “The decision is very harmful to the neighborhood. However, the community will continue to fight on to preserve our parks, our livability, the character of our residential and historic neighborhood. This lawsuit may be over, but the community will continue to work together, to the degree we are able, to keep our neighborhood the beautiful, historic, residential community that it is, and that it must remain.”
Cude indicated that while this suit may be over for now, that doesn’t necessarily preclude more legal action at some point down the road.
Andrew Berman, G.V.S.H.P. director, said, “We are deeply disappointed that the court gave the green light to N.Y.U.’s massive, 20-year, 2-million-square-foot expansion plan. This will not only have a devastating impact upon the Village, but weakens the legal protections that all New Yorkers have enjoyed for public park space. What makes it particularly sad is that ‘the university in the city’ consistently refused every offer of compromise or alternatives as a way of meeting the school’s academic needs while addressing the neighborhood’s concerns about overdevelopment. This could have been a win-win, but instead was lose-lose.”
State Senator Brad Hoylman, along with a host of other politicians from across the city, had recently signed on to an amicus brief — or statement of support — for the community lawsuit.
“It’s disappointing,” Hoylman said, “that the Court of Appeals has decided to fork over precious public space to a rapacious developer like N.Y.U., because decisions as important as this should only be made by our elected state representatives. That said, there’s still another lawsuit blocking construction. Even if that doesn’t succeed, I’m still hopeful that the new N.Y.U. president will see the wisdom of fostering better relations with the local community and amend the university’s expansion plans, which are wildly out of context with the neighborhood.”
A previous lawsuit filed by attorney Lawrence B. Goldberg on behalf of original Washington Square Village residents was dismissed by a judge about three years ago as “unripe.” Yet that suit could be reactivated again at the right moment, Goldberg said back then. That suit argued that the original tenants had moved into the complex with certain assurances of open space and amenities that the university’s redevelopment project would negatively impact.
Councilmember Corey Johnson has also been an outspoken critic of the N.Y.U. 2031 plan.
“I am terribly disappointed that the state Court of Appeals has given N.Y.U. a green light to proceed,” he told The Villager. “While I respect the court’s decision, if this plan proceeds in its current form, it will result in a loss of precious open space and out-of-scale development. I urge the de Blasio administration to work with N.Y.U. and refine this plan in a way that benefits both the university and the surrounding community.”
The Mayor’s Office did not respond by press time to a request for comment.
