Judge says city broke the law by approving N.Y.U. superblocks plan

The LaGuardia Corner Gardens — seen here in glorious full bloom in a photo from June 2004 — have been flourishing along a strip of city-owned land on LaGuardia Place at Bleecker St. since 1981. On Tuesday, a State Supreme Court judge ruled the garden is not a street — but a park. File photo by Elisabeth Robert
The LaGuardia Corner Gardens — seen here in glorious full bloom — have been flourishing along a strip of city-owned land on LaGuardia Place at Bleecker St. since 1981. On Tuesday, a State Supreme Court judge ruled the garden is not a street — but a park. File photo by Elisabeth Robert

BY LINCOLN ANDERSON | Updated Wed., Jan. 8, 11 p.m. |  In a devastating blow to New York University, on Tuesday, State Supreme Court Justice Donna Mills ruled that the city and state broke the law by O.K.’ing the university’s plan to use three parkland strips for construction of its hotly contested South Village expansion scheme.

It was a stunning victory for a community lawsuit filed by a first-of-its-kind coalition made up of N.Y.U. faculty, preservationists, activists and dozens of Village residents and community organizations.

Mills ruled that what is known as the “common-law public trust doctrine” was violated when the plan was approved without the required step of the parkland strips first being “alienated” — or removed as parkland — by the state Legislature.

Under the N.Y.U. plan, led by President John Sexton, the university sought to construct four new buildings — a total of nearly 2 million square feet of new development — on its two superblocks, which are bounded by Houston and W. Third Sts. and Mercer St. and LaGuardia Place.

The city and university argued that the four narrow park strips — running along the superblocks’ edges on Mercer St. and LaGuardia Place — have always been mapped as streets, and thus have been under the jurisdiction of the Department of Transportation, ever since the streets were widened in 1954 for an aborted Lower Manhattan highway project.

But Mills ruled that three of the parcels have been “impliedly” used as parks for decades. In her decision, she cited affidavits given by former public officials — including former Parks Commissioner Henry Stern, former City Councilmember Kathryn Freed and former Transportation Commissioner Chris Lynn — stating their firm belief that the strips were always de facto parkland.

Stern and Lynn further testified in their affidavits that N.Y.U. was constantly blocking the strips’ formal transfer from D.O.T. to Parks because it wanted to protect its development rights — even though it was clear that the strips would never again be used as streets.

That the sites sport regulation Parks Department signage and are mentioned on the department’s Web site is more proof that they are indeed parkland, Mills stated in her 78-page decision. She further cited other precedent-setting cases involving similar park situations that support her decision.

“The court…concludes,” Mills stated, “that land may become parkland by implication even, for example, where the land remains mapped for another purpose, as here.”

The judge ruled that LaGuardia Park (on LaGuardia Place between W. Third and Bleecker Sts.) Mercer Playground (on Mercer St. between W. Third and Bleecker Sts.) and LaGuardia Corner Gardens (on LaGuardia Place south of Bleecker St.) are all clearly parks.

However, she determined that the same cannot be said for the strip with the Mercer-Houston Dog Run (on Mercer St. between Houston and Bleecker Sts.) because it doesn’t sport any Parks Department signage, and also because N.Y.U., not Parks, has maintained and repaired the dog run. (Ironically, on the same block, just north of the dog run, is a sunken children’s playground and a seating area that are closed to the public precisely because N.Y.U. has let them fall into disrepair and done nothing for their upkeep.)

Mills noted that her ruling doesn’t mean the N.Y.U. plan can’t go forward — just that if the university wants to use the three parkland strips, they first must be alienated by the state Legislature. N.Y.U. wants 20-year “easements” for these three strips, which would allow it to run construction vehicles over them and use them as staging areas during the lengthy, phased construction on the superblocks. In N.Y.U.’s plan, after the project’s completion, the strips were to be taken over by the Parks Department as permanent parkland.

Under the 2031 plan, two “infill” buildings are called for on the northern superblock, while the southern superblock would see the Coles Gym rebuilt with a new so-called “Zipper Building” and the Morton Williams supermarket site rebuilt with a new N.Y.U. dorm that could contain a public school or, more likely, a community use, possibly a senior day facility, in its base.

 Under Mills’s ruling, the “Zipper Building” project can proceed. N.Y.U.’s plan is to shift the current Coles Gym footprint to the east, taking over part of the Mercer strip for the new replacement building. The dog run would be relocated to the west of the new Zipper Building.

But N.Y.U. would have to figure out some other way — without easements on the three other parkland strips — to build the other three buildings in the plan. (In the case of the Morton Williams-site project, N.Y.U. planned to build an access road through the LaGuardia Corner Gardens to the construction site. But an N.Y.U. source told The Villager, “There’s some flexibility there,” that the construction workers and machines could just “come in through the Bleecker St. side” instead of through the garden.)

While Mills upheld the plaintiffs’ first argument — that the strips (or at least three of the four) are implicitly parks — she shot down five other arguments in the suit: namely, that N.Y.U. and the city failed to examine feasible alternatives to 2031; that the university’s plan violates the Parks Recreation and Historic Preservation Law; that there was insufficient environmental review; that the city’s ULURP (Uniform Land Use Review Procedure) was faulty; and that there were violations of the Open Meetings Law by N.Y.U. and elected officials during the plan’s review process.

Meanwhile, the plaintiffs were celebrating their amazing victory after Mills’s decision.

Assemblymember Deborah Glick, who joined the suit, hailed the ruling, calling it “as important as it is exciting.” She vowed that she would never support alienating the parkland strips, though warned that the N.Y.U. fight probably isn’t over yet.

“The court’s rejection of this attempt to usurp parkland without proper approval by the state Legislature reaffirms a crucial tenet of parkland protection,” Glick said. “This decision is a huge victory after years of work by the community as we united together to protect the Village from the overdevelopment proposed by N.Y.U.” However, she added, “I do not expect that this will be the end of our development concerns, or even our legal battles over the N.Y.U. 2031 plan, but this is a huge victory nonetheless.”

Last July, before the City Council voted nearly unanimously to approve the N.Y.U. 2031 plan, Council Speaker Christine Quinn cleared the Council Chamber’s balcony of protesters, who had started hooting and hissing. Above from left, Ruth Rennert, a Washington Square Village resident, and Paul and Marianne Edwards, 88 Bleecker St. residents, shouted their displeasure over the Council’s anticipated vote as they were ejected from the Council Chambers.  File photo by Tequila Minsky
Last July, before the City Council voted nearly unanimously to approve the N.Y.U. 2031 plan, Council Speaker Christine Quinn cleared the Council Chamber’s balcony of protesters, who had started hooting and hissing. Above from left, Ruth Rennert, a Washington Square Village resident, and Paul and Marianne Edwards, 88 Bleecker St. residents, shouted their displeasure over the Council’s anticipated vote as they were ejected from the Council Chambers. File photo by Tequila Minsky

Andrew Berman, executive director of the Greenwich Village Society for Historic Preservation, called the decision an affirmation of what the plaintiffs always knew.

“The judge agreed with us that the property could not be alienated without action at the state level,” he said. “This is a clear vindication of our assertion that the city and the City Council did not act appropriately, and the N.Y.U. plan is not legal.”

Regarding the alienation argument that Mills agreed with, Berman said, “This is the one that we were most confident we would win on, and really speaks to the heart of our assertion that the city acted completely inappropriately.

“This is the decision, in many ways, we were hoping for,” he said. “It’s sad that it had to come to this, but it’s really important that the system of checks and balances is working in this case.”

Berman noted that “now there is a new mayoral administration and a new City Council,” which bolsters the plaintiffs’ chances that the city might not appeal Mills’s decision.

When Bill de Blasio was public advocate, his appointee to the City Planning Committee, in fact, notably voted against the N.Y.U. plan during ULURP, though, at the end of the day, de Blasio — an N.Y.U. alumnus — did support the megaproject.

Terri Cude, co-chairperson of Community Action Alliance on N.Y.U. 2031, or CAAN, noted that her group wasn’t a party to the lawsuit, since some member groups within her umbrella organization couldn’t sue N.Y.U. (For example, the tenants of 505 LaGuardia Place, a CAAN member, were negotiating a lease with N.Y.U. at the time the lawsuit was filed, and CAAN didn’t want to “break up” the coalition, Cude said.) Naturally, though, she was ecstatic at the news of Mills’s decision.

“I am thrilled that the judge agreed in large part with what CAAN and Community Board 2 have said all along — that the open-space strips on the superblocks are parks,” Cude said. “We held so many community meetings, and the joint CAAN / C.B. 2 rally that featured speeches from all of our elected officials, all stating that obvious point.”

C.B. 2 voted a unanimous “No” against N.Y.U. 2031.

“I am, however, disappointed,” Cude added, “that the judge did not include the land in front of Coles Gym, currently home to the dog run, plus the water playground and reflecting garden that N.Y.U. was required to maintain but are sunken, unusable and locked by N.Y.U. That still leaves the possibility of the enormous, inappropriate, superblock-long Zipper Building.”

David Gruber, Board 2 chairperson, said, “It is very gratifying that the court has agreed with the C.B. 2 resolution that the park area surrounding the superblocks cannot be absorbed by N.Y.U. into their plan 2031 development scheme.

“I do not understand, however, why the parkland in front of Coles Gymnasium was not included under the same legal reasoning of ‘park alienation,’ ” Gruber added. “That area would have been fully and actively used had N.Y.U. maintained it under their contractual agreement with the community, rather that fencing it off and padlocking it. In any event, I have to assume that this court action will trigger a new ULURP review.”

Mark Crispin Miller, a leader of N.Y.U. Faculty Against the Sexton Plan, one of the main plaintiffs, lives on the northern superblock in Washington Square Village. His apartment overlooks the complex’s tranquil Sasaki Garden, which, under N.Y.U.’s plan, would have been bulldozed for two new infill buildings that would have been shoehorned into the block. Many faculty live in the airy complex, which was a driving force behind the creation of N.Y.U. FASP.

“We’re delighted [at the ruling],” Miller said. “We think that the most appropriate thing for N.Y.U. to do would be to drop the whole thing and go back to square one with the faculty as partners in any future expansion.”

(In fact, The New York Times reported that Randy Mastro, one of the plaintiffs’ attorneys, said that, based on the case’s outcome, the 2031 project should not be allowed to proceed piecemeal — and that, for example, all the environmental reviews for the whole project must be done again. But N.Y.U. says that was not Justice Mills’s order.)

Miller emphasized that N.Y.U. FASP members aren’t just concerned about the impact the 20 years of construction would have on them personally.

“It’s time to move past Mayor Bloomberg’s ‘luxury city’ paradigm,” said Miller, a media studies professor. “We’re doing this out of a deep concern not only for ourselves but for the neighborhood. [N.Y.U. 2031] is too expensive. Our future students will not be able to afford it. The faculty will be driven away. There’s no good argument for it. The only good argument we heard for it is that: ‘Great institutions must grow.’ But that’s not an argument, that’s a mantra — and it’s false, dramatically false. Big universities mean more part-time faculty, more students per class. It’s already the most expensive university in the country.”

Is the fact that Mills made her ruling just five days after de Blasio became mayor significant?

“We’ve asked ourselves that question — ‘Did the judge wait till now to make the decision?’ ” Miller said. “We’ll never know for sure. It is a clear sign of changing times. People will see it as an indication of tremendous change.”

As for N.Y.U. FASP’s recent star-studded auction in support of the litigation, Miller said it netted $40,000. The suit is largely pro bono, but there are still some costs.

Nevertheless, N.Y.U. put an optimistic spin on the case’s outcome.

“This is a complex ruling, but the judgment is a very positive one for N.Y.U. — five of the six petitioners’ claims were dismissed, and most importantly, the judge’s ruling allows us to move forward with our first planned project — the facility to provide new academic space on the site of our current gym,” said spokesperson John Beckman, referring to the Zipper Building.

That building would contain about half the total space of the 2-million-square-foot  project as proposed by N.Y.U. (However, Miller observed that there was actually relatively little academic space slated for the Zipper Building. In previous iterations of the plan, at least, it was to include a gym, ground-level retail spaces, a student dorm and faculty offices.)

Beckman pointedly added, “The petitioners and their lawyers are wrong and overreaching in the claims they are now making that this ruling would stop us from building on the gym site, or that the proposals must be resubmitted to the City Council through another ULURP. The court did not vacate the City Council’s ULURP approval, and specifically rejected the petitioners’ claim that the street adjoining the gym site is a park.

“Our decisions about that facility will be guided by the faculty-led University Space Priorities Working Group, which in its draft report affirmed the need for additional academic space. Its final report is expected in the coming weeks,” Beckman added.

“The decision reaffirms the ULURP approval by the City Council,” he continued. “Once we have a chance to thoroughly review the decision with our planning team and determine the precise impact of the ruling on our ability to implement other elements of the plan, we will work with the city, as lead respondent, to determine our next legal steps.”

N.Y.U. was not technically sued by the plaintiffs in the “Article 78” lawsuit but joined the city and state as a so-called “necessary party” in their defense of the project.

Asked if the city would appeal Mills’s decision, senior counsel Chris Reo, of the city Law Department’s Environmental Law Division — speaking for both the de Blasio administration and the Law Department — responded, “We just received — and are reviewing — the decision.”

G.V.S.H.P.’s Berman gave tremendous credit to the law firm of Gibson Dunn, whose attorneys Mastro and Jim Walden won the historic case.

Walden told The Villager, “We are thrilled with Justice Mills’s decision to protect three of our parks against development, as the law requires. With the Sexton plan now dead, we look forward to a more meaningful public review, which will certainly — with a new, progressive, community-minded mayor — result in a more inclusive public process.”

Asked if the plaintiffs would challenge the decision allowing N.Y.U. to develop on the Mercer-Houston Dog Run open-space strip, Walden said, “We are looking into it, but I can’t say yet.”

The N.Y.U. 2031 site is in Councilmember Margaret Chin’s district, and she approved the plan. Other councilmembers — such as, notably, Rosie Mendez — said they voted for the scheme out of deference to Chin, since she was “the lead” on it, in that the project was in her district. Mendez, as she cast her vote, acknowledged that many of her constituents opposed the N.Y.U. plan, but that she was doing this for Chin, who she fondly called her “sister.”

Former Council Speaker Quinn herself even tried to put the onus on Chin — telling The Villager near the end of her unsuccessful mayoral primary bid that the local councilmember ultimately is the one responsible for the vote.

On Wednesday, The Villager asked Chin’s office for comment on Mills’s decision. “Preserving green space is one of my utmost priorities,” Chin responded in an e-mailed statement. “I am glad that Tuesday’s decision creates the opportunity for the LaGuardia Corner Garden and Time Landscape to enjoy the same protections as other parks in our community. Throughout the N.Y.U. 2031 negotiations, I worked to ensure that any construction is respectful of the residents that call this neighborhood home — and minimizing impacts on community green space was and continues to be an essential part of that goal.”

(The Time Landscape is the long, fenced-in plot south of the LaGuardia Corner Gardens, and is intended to represent Manhattan’s pre-Colonial foliage in its natural state. However, N.Y.U. has never expressed any interest in using the Time Landscape for its development plans.)

The Villager, in turn, asked Chin if she is equally glad that the open-space strips on the north superblock will now — as a result of Mills’s ruling — enjoy park protections. Again, N.Y.U. would like to use these strips to help construct its 2031 project, but now cannot based on Mills’s decision. Chin did not respond by press time.