BY LINCOLN ANDERSON | The broad coalition of opponents fighting New York University’s South Village expansion mega-plan have filed an appeal of last month’s stunning decision in favor of the university.
The intensely watched case could potentially determine the fate of countless treasured public parks and open spaces throughout New York State, according to the opponents.
In January, State Supreme Court Justice Donna Mills ruled mostly in favor of the plan’s opponents, when she found that three of four open-space strips — Mercer Playground, LaGuardia Park and LaGuardia Corner Gardens — on the university’s two South Village superblocks are “impliedly” parkland and thus de facto parks.
Mills’s ruling effectively blocked much of the 2-million-square-foot, four-building project from being constructed.
The plaintiffs argued, and Mills agreed, that under the Public Trust Doctrine, the park strips first needed to be “alienated” — removed as public parkland — by the state Legislature before the parcels could be razed, modified or otherwise used for the construction — such as for staging areas.
However, Mills didn’t find that the fourth strip, including the Mercer-Houston Dog Run, is impliedly parkland, meaning N.Y.U. could proceed with demolishing its Coles gym to construct its planned “Zipper Building,” which would sit on part of the dog run strip.
But then a month ago, in a stunning reversal, the Appellate Division overturned the lower court’s decision, ruling that none of the four strips are parkland, meaning not only the “Zipper” could proceed, but the entire massive project, as well.
In their last hope, the plaintiffs are now appealing to the state’s highest court, the Court of Appeals, to overturn the Appellate Division’s ruling.
The plaintiffs include Assemblymember Deborah Glick, N.Y.U. Faculty Against the Sexton Plan, Greenwich Village Society for Historic Preservation, Historic Districts Council, Washington Square Village Tenants Association, East Village Community Coalition, LaGuardia Corner Gardens, Soho Alliance, Lower Manhattan Neighbors’ Organization (LMNO(P)), Bowery Alliance of Neighbors, Noho Neighborhood Association and the Washington Place Block Association, plus 10 local residents, among others.
Former Parks Commissioner Henry Stern and actor Mark Ruffalo — who has a home in the West Village — issued statements of support for the plaintiffs’ appeal, which was filed Nov. 14.
Stern, who supplied an affidavit in support of the petitioners during the State Supreme Court phase, decried the Appellate Divsion’s decision and interpretation of the law.
“This makes it open season on small neighborhood parks,” Stern said. “It outlaws common-law parks by saying they aren’t legally protected, when in fact these parks have been enjoyed for generations by New Yorkers. Even Central Park is not formally mapped! It’s like the bank foreclosing on a mortgage that people didn’t even know they had. This is an anti-neighborhood, anti-park decision, and we need to appeal it immediately.”
The superblock strips — along LaGuardia Place and Mercer St. between W. Third and Houston Sts. — were left over from a street-widening project for Robert Moses’ Lower Manhattan Expressway, or LOMEX, project, which was aborted in 1969.
Although the strips are technically under city Department of Transportation ownership, they have never actually been used as streets, but rather have been used as community parkland for decades.
In his affidavit, Stern stated that N.Y.U., in fact, blocked efforts to have the strips formally transferred from D.O.T. to Parks.
Meanwhile, the city has funded, labeled and maintained the strips as parks, the plaintiffs assert. Mills agreed, but said the dog run lacks Parks signage, plus charges a membership fee, so is not public. But the plaintiffs argue that by paying the fee anyone can join the dog run, though there is a waiting list.
N.Y.U. and the city counter-argued that the strips aren’t really parks, since they were never technically “mapped” as parks, and are nominally overseen by D.O.T.
Ruffalo, who has an Upstate home, as well, is also a prominent anti-fracking activist.
“As a longtime advocate of our green spaces,” Ruffalo said, “I find it alarming that these public parks, which Villagers have been enjoying for decades, can just be handed over to a private corporation for its own financial gain. That decision must be overturned, not just because of its effect on that one neighborhood, but because of its disastrous implications for our precious commons all throughout the state.”
Asked for comment on the opponents’ appeal, N.Y.U. spokesperson John Beckman said the October ruling speaks for itself.
“It would be difficult for us to say it better than the Appellate Division’s unanimous, forceful ruling rejecting the claims against N.Y.U.,” he said. “We have said from the outset that the facts of this case are clear, and the university will continue to defend its ability to move forward with the creation of new academic facilities that it needs.”
The petitioners are being represented pro bono by Gibson Dunn & Crutcher. The two main issues they are asking the Court of Appeals to consider is that the Appellate Division’s decision conflicts with prior precedent-setting decisions by both the Appellate Division and Court of Appeals, and that, if the Appellate Division’s October ruling is left intact, it will have the effect of abolishing “implied dedication” — not just in New York City, but throughout the state.
A press release announcing the appeal explained, “The [Appellate Division] First Department’s decision flies in the face of the Public Trust Doctrine and of its own decisions, and will imperil all kinds of public and green spaces throughout the state; it will leave ordinary New Yorkers with no protection against the removal and abuse of open spaces and parks for development.”
Added Andrew Berman, executive director of G.V.S.H.P., “We cannot allow the courts to take away our public green spaces to give to a private entity. What will be left for the public to enjoy? It will change the nature of our Village neighborhood and will potentially turn it into a concrete jungle.”
Enid Braun, a founding member of LMNO(P), said, “Mercer Playground was created through the nine-year effort of LMNO(P), a community group founded in 1992, in partnership with Community Board 2, elected officials and city agencies. The destruction of this much-needed public space would send a message to all New Yorkers collaborating with government to improve their communities that the city doesn’t always keep its word, and deep pockets always win.”
Added Mark Crispin Miller, a leading member of N.Y.U. FASP: “N.Y.U. continues to ignore the will of its own faculty, along with the entire community, while seeking to invalidate the crucial laws protecting public property. As they will not stop pushing that mad project — a giant threat to N.Y.U. itself as well as our historic neighborhood — we have no choice but to fight on.”
Glick emphasized that this case will set a precedent for all public space in New York State.
“This case is about the protection of public space from private greed or administrative neglect,” she said. “All public space is at risk in this case.”
Along with Glick, most of the area’s politicians support the opponents’ struggle, including Congressmember Jerrold Nadler, state Senators Brad Hoylman and Daniel Squadron, City Councilmember Corey Johnson, Manhattan Borough President Gale Brewer and Public Advocate Letitia James.
On the other hand, Councilmember Margaret Chin, whose district includes the superblocks, supports the N.Y.U. 2031 plan.
Chin notes that, after the 20-year-long project is over, what remains of the strips will be mapped as public parkland.
Rosie Mendez, a close ally of Chin’s in the Council, has offered only partial support of the opponents’ argument that all the open-space strips are public parkland.
As for whether the Court of Appeals will deign to hear the appeal, Miller admitted it’s not guaranteed. When there are two dissenting opinions on the Appellate Division panel, the Court of Appeals is obligated to hear an appeal. But in this case, the October decision was unanimous.
“However, when a case concerns a legal question involving significant public interest, they’re inclined to take the case,” Miller said. “There’s a lot at stake here. We’re asking that they settle the question of whether the doctrine of implied dedication will still have any influence — or whether it’s been nullified.”
The opponents are asking for an expedited decision, since N.Y.U. is raring to start building the “Zipper.”
“They want to tear Coles down in June,” Miller said. “We’re hoping that the court decides quickly and that they decide to take the case.”
