BY LINCOLN ANDERSON | In the latest chapter in the community’s ongoing struggle against N.Y.U.’s South Village expansion plan, the state’s highest court has agreed to hear an appeal by a coalition of faculty, activists and neighborhood groups battling to preserve public parkland.
The lawsuit has already passed through two lower courts, with differing results. The stage is now set for a verdict by the Court of Appeals, and it could have far-ranging ramifications on how the city and the state deal with public parks in the future. The case will likely be argued later this year.
Last Oct. 14, the Appellate Division’s First Department overturned a State Supreme Court justice’s earlier decision that would have spared three green spaces — Mercer Playground, LaGuardia Park and LaGuardia Corner Gardens — from destruction under New York University’s current expansion plan.
According to the lower court’s ruling, all three of these so-called “open-space strips” are public parks, and so entitled to protection. Justice Donna Mills agreed with the argument that the public has been using these spots as parks for many years, making them “impliedly” parkland, with the city funding, labeling and maintaining them as parks.
But N.Y.U. and the city then appealed, counter-arguing that these strips aren’t really parks, since they were never technically “demapped” as streets and are nominally overseen by the city’s Department of Transportation. The strips are left over from a mid-20th-century street widening for the Lower Manhattan Expressway, an aborted cross-town speedway that would have been bulldozed through the Village. They have never been used as streets, however.
The Appellate Division’s decision, if allowed to stand, would allow the university to raze these parkland strips to make way for its nearly 2 million-square-foot expansion plan. Advocates contend this “would set a precedent that could potentially threaten countless public parks throughout the city and the state.”
The petitioners are a broad coalition including 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, Friends of Petrosino Square, LaGuardia Corner Gardens, Inc., Lower Manhattan Neighbors’ Organization, Soho Alliance, Bowery Alliance of Neighbors, Noho Neighborhood Association, Assemblymember Deborah Glick and 10 other individuals. They are being represented pro bono by Gibson Dunn & Crutcher, with Randy Mastro — a former New York City deputy mayor — as lead attorney.
In their motion papers, the petitioners’ attorney argue that “the First Department’s decision disregarded well-established common law principles for determining when municipal land has been impliedly dedicated for parks usage. In recognition of the unique value that public parks hold for children, families and communities, the Public Trust Doctrine accords parkland special protection.”
Andrew Ross, an urbanist and director of the American Studies program at N.Y.U., is one of the many faculty backing the lawsuit. Many of the school’s faculty live on the two superblocks — between Houston and W. Third Sts. and Mercer St. and LaGuardia Place — and cry their lives would be turned upside down by the “20-year construction project.
“These parks have been a vital part of the Greenwich Village community’s daily life for decades,” Ross said. “Not only do we want to save these parks from N.Y.U.’s reckless, unnecessary expansion, but we want to do the same for the parks that will be threatened elsewhere if the lower court’s decision stands.
“If these parks can be handed off to N.Y.U. in spite of the Public Trust Doctrine, it sets a terrible precedent, and the outcome for similar cases is bleak.”
The petitioners warn that the First Department’s decision, if upheld, would have the effect of abolishing “implied dedication” — a consequence with widespread negative effects, not just in New York City, but throughout the state.
Parks and open spaces are protected by the Public Trust Doctrine, under which the government holds title to certain waters and lands in trust for the people. In New York State, if a developer — or a university, in this case — wants to build on or remove a parcel of parkland from public ownership and use, either permanently or temporarily, the state Legislature must “alienate” the property.
However, the petitioners argue — and Justice Mills agreed with them in her initial ruling — that no “alienation” was done regarding the South Village open-space strips along the superblocks’ edges.
N.Y.U. needs use of the strips to facilitate construction of its megaproject, which includes a total of four buildings.
Under Mills’s ruling, two new “infill” buildings slated for the northern superblock were blocked. The so-called “Zipper Building” — which N.Y.U. hopes to build on its current Coles gym site — could have been built, though. The university maintained it could also still have built on the Morton Williams supermarket site by “coming in” from Bleecker St. rather than through the LaGuardia Corner Gardens.
But the Appellate Division’s ruling cleared the way for all four buildings to be constructed.
Professor Mark Crispin Miller, president of N.Y.U. FASP, said, “Green spaces like these parks play an imperative role in keeping New York livable. We hope that the Court of Appeals overturns the First Department’s decision before it can do irreparable harm to the Public Trust Doctrine.”
Actor Mark Ruffalo, an outspoken environmentalist, said letting the Appellate Division’s ruling stand would open the floodgates to using park spaces for green — as in cash.
“These public parks have been a vital part of the Village for decades, and they have benefitted the public in numerous ways,” he said. “Without the Court of Appeals’ intervention, not only will they be given to a private corporation for its own financial gain, but such a thing could become a common and unremarkable occurrence throughout New York.”
However, the school’s spokesperson expressed confidence that, at the end of the day, the university will prevail in court.
“This project — indispensable to meeting N.Y.U.’s pressing academic space needs — was approved 44 to 1 by the City Council, and was strongly and unanimously upheld by the Appellate Division,” said John Beckman. “N.Y.U. continues to believe fully in this project and in the strength of our case, and we are optimistic about another positive outcome when the Court of Appeals ultimately rules.”
