court of appeals of the york - nyu of appeals of the state of new york in the matter of an article...
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COURT OF APPEALS OF THE STATE OF NEW YORK
In the Matter of an Article 78 Proceeding
DEBORAH GLICK, ET AL. ,
Petitioners-Respondents-Appellants,
-against-
: APL-2015-00053
: NOTICE OF MOTION : TO FILE A BRIEF : AMICI CUEIAE
ROSE HARVEY, ET AL. ,
Respondents,
VERONICA M. WHITE, ET AL. ,
Respondents-Appellants-Respondents,
and
NEW YORK UNIVERSITY,
Necessary Third-Party-Appellant-Respondent. :
PLEASE TAKE NOTICE that, upon the Affirmation of Charles S. Sims and
the accompanying amicus brief, New Yorkers for Parks, The Association for
Neighborhood and Housing Development, The New York Housing Conference,
Phipps Houses, Greater New York Hospital Association, The Healthcare
Association of New York State, and The Commission on Independent Colleges
and Universities will move this Court, on May 4, 2015 at 9:30 a. m. , or as soon
thereafter as counsel may be heard, at 20 Eagle Street, Albany, New York, for an
order granting them leave, pursuant to Rule of Practice 500. 23(a), to file a brief in
this appeal, amici curiae, in support of affirmance of the First Department's
judgment, which correctly identified and applied the applicable rule of law in cases
such as this.
Pursuant to CPLR 2214(b), answering papers, if any, are required to be
served upon the undersigned so as to be received at least two (2) days before the
return date of this motion.
April 24, 2015 PROSKAUER ROSE LLP
By:
Charles S. Sims Celia V. Cohen 11 Times Square New York, New York 10036 (212) 969-3000 (212) 969-2900 (fax) csims@proskauer. corn ccohen@proskauer. corn
Attorneys for Proposed Amici Curiae New Yorkers for Parks, The Association for Neighborhood and Housing Development, The New
York Housing Conference, Phipps Houses, Greater New York Hospital Association, The Healthcare Association of New York State, and The Commission on Independent Colleges and Universities.
TO:
CLERK OF THE COURT
Andrew W. Klein, Chief Clerk New York State Court of Appeals 20 Eagle Street Albany, New York 12207-1095
GIBSON DUNN k, CRUTCHER LLP Randy M. Mastro, Esq. Caitlin J. Halligan, Esq. Indraneel Sur, Esq. Gabriel K. Gillet, Esq. Sarah Vacchiano, Esq. Laura F. Corbin, Esq. 200 Park Avenue New York, New York 10166-0005
ZACHARY W. CARTER
Corporation Counsel of the City of New York Attn: Michael J. Pastor, Esq. 100 Church Street New York, New York 10007
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General Attn: Andrew G. Frank, Esq. 120 Broadway New York, New York 10271
CARTER LEDYARD K MILBURN LLP Victor J. Gallo, Esq. Two Wall Street New York, New York 10005-20001
COOLEY LLP Alan Levine, Esq. Celia Goldwag Barenholtz, Esq. Genevieve G. York-Erwin, Esq. Michael Blasie, Esq. 1114 Avenue of the Americas New York, New York 10036-7703
COURT OF APPEALS OF THE STATE OF NEW YORK
In the Matter of an Article 78 Proceeding
DEBORAH GLICK, ET AL. ,
Petitioners-Respondents-Appellants,
-against-
ROSE HARVEY, ET AL. ,
Respondents,
VERONICA M. WHITE, ET AL. ,
: APL-2015-00053
: AFFIRMATION OF : CHARLES S. SIMS : IN SUPPORT OF : MOTION TO FILE A : BRIEF AMICI CUMAE
Respondents-Appellants-Respondents,
and
NEW YORK UNIVERSITY,
Necessary Third-Party-Appellant-Respondent. :
CHARI ES S. SIMS, an attorney admitted to practice law before the Courts
of the State of New York, hereby affirms the following to be true under penalty of
perjury:
I am associated with the firm of Proskauer Rose LLP, counsel to New
Yorkers for Parks, The Association for Neighborhood and Housing Development,
The New York Housing Conference, Phipps Houses, Greater New York Hospital
Association, The Healthcare Association of New York State, and The Commission
on Independent Colleges and Universities (together, the "amici"), and I submit this
affirmation in support of the motion for leave to file a brief, amici curiae, in
support of affirmance of the First Department's judgment, which correctly
identified and applied the applicable rule of law in cases such as this.
Largely ignoring the longstanding rule correctly identified by the First
Department as controlling in cases such as this, Petitioners contend that dedication
of municipally-owned parcels of land as parkland subject to the public trust doc-
trine rests not on an unequivocal showing of the city's intent to dedicate such
parcels as parkland, but instead on a court's assessment of whether there has been
"long continuous public use" of the land for recreational purposes such that
neighbors "expect that the parcel will stand as a park. " Pet'rs' Br. 39, 51.
3. The amici share a deep interest in preserving municipalities' control
over their land. While their ultimate goals for New York City may differ, they are
unified in thinking that the longstanding rules preserving for cities full legal
discretion to manage, repurpose and deploy their land for a myriad of purposes
best serve the public welfare and best provide for political accountability. The
change to those longstanding rules proposed by Petitioners would have disastrous
political and social ramifications and would directly, and negatively, impact the
amici's ability to pursue their various missions.
The amici take no position in their proposed brief on the particular
project that spawned this litigation; rather, they seek to provide the Court with a
perspective on the appropriate legal rule for determining whether municipal land is
dedicated parkspace, and on how calamitous the rule proposed by Petitioners
would be, unencumbered by the particularities of any single project. Accordingly,
the amici are able to identify law and arguments that might otherwise escape the
Court's consideration. Such arguments are set forth in the proposed amicus brief
submitted herewith.
WHEREFORE, the amici respectfully request that this Court grant their
motion for leave to file a brief, amici curiae, in support of affirmance.
April 24, 2015
APL 2015-00053 New York County Clerk’s Index No. 103844/12
Court of Appeals of the
State of New York
DEBORAH GLICK, individually and in her representative capacity as Assemblymember for the 66th Assembly District, BARBARA WEINSTEIN,
JUDITH CHAZEN WALSH, SUSAN TAYLORSON, MARK CRISPIN MILLER, ALAN HERMAN, ANNE HEARN, JEFF GOODWIN, JODY
BERENBLATT, NYU FACULTY AGAINST THE SEXTON PLAN, GREENWICH VILLAGE SOCIETY FOR HISTORIC PRESERVATION,
(For Continuation of Caption See Inside Cover)
BRIEF FOR AMICI CURIAE NEW YORKERS FOR PARKS, THE ASSOCIATION FOR NEIGHBORHOOD AND HOUSING
DEVELOPMENT, THE NEW YORK HOUSING CONFERENCE, PHIPPS HOUSES, GREATER NEW YORK HOSPITAL
ASSOCIATION, THE HEALTHCARE ASSOCIATION OF NEW YORK STATE AND THE COMMISSION ON INDEPENDENT
COLLEGES AND UNIVERSITIES
PROSKAUER ROSE LLPAttorneys for Amici Curiae New Yorkers for
Parks, The Association for Neighborhood and Housing Development, The New York Housing Conference, Phipps Houses, Greater New York Hospital Association and The Healthcare Association of New York State and the Commission on Independent Colleges and Universities
11 Times Square New York, New York 10036 Tel.: (212) 969-3000 Fax: (212) 969-2900
Dated: April 24, 2015
HISTORIC DISTRICTS COUNCIL, WASHINGTON SQUARE VILLAGE TENANTS’ ASSOCIATION, EAST VILLAGE COMMUNITY COALITION,
FRIENDS OF PETROSINO SQUARE, by and in the name of its President, GEORGETTE FLEISCHER, LAGUARDIA CORNER GARDENS, INC.,
LOWER MANHATTAN NEIGHBORS’ ORGANIZATION, SOHO ALLIANCE, BOWERY ALLIANCE OF NEIGHBORS, by and in the name of its Treasurer, JEAN STANDISH, NOHO NEIGHBORHOOD ASSOCIATION, by
and in the name of its Co-Chair, JEANNE WILCKE, and WASHINGTON PLACE BLOCK ASSOCIATION, by and in the name of its president,
HOWARD NEGRIN,
Petitioners-Appellants,
For a Judgment Pursuant to CPLR Article 78
– against –
ROSE HARVEY, as Acting Commissioner of the New York State Office of Parks, Recreation and Historic Preservation, THE NEW YORK STATE OFFICE
OF PARKS, RECREATION AND HISTORIC PRESERVATION, PAUL T. WILLIAMS, JR., as the President and the Chief Executive Officer of Dormitory Authority of the State of New York, and DORMITORY AUTHORITY OF THE
STATE OF NEW YORK,
Respondents,
– and –
VERONICA M. WHITE, as Commissioner of the New York City Department of Parks and Recreation, THE NEW YORK CITY DEPARTMENT OF PARKS
AND RECREATION, JANETTE SADIK-KHAN, as Commissioner of the New York City Department of Transportation, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION, MATHEW M. WAMBUA, as Commissioner of the New York City Department of Housing Preservation and Development, THE NEW YORK CITY DEPARTMENT OF HOUSING
PRESERVATION AND DEVELOPMENT, AMANDA BURDEN, as Director of the New York City Department of City Planning and Chair of the New York City Planning Commission, THE NEW YORK CITY PLANNING COMMISSION,
THE NEW YORK CITY DEPARTMENT OF CITY PLANNING, CHRISTINE QUINN, as Speaker of the New York City Council, THE NEW YORK CITY
COUNCIL and THE CITY OF NEW YORK,
Respondents-Respondents,
– and –
NEW YORK UNIVERSITY,
As a Necessary Third-Party Respondent.
CORPORATE DISCLOSURE STATEMENT
Pursuant to 22 N.Y.C.R.R. 500.1(f), the amici make the following
disclosures:
New Yorkers for Parks is a not-for-profit organization without corporate
parents, subsidiaries, or affiliates within the meaning of the rule.
The Association for Neighborhood and Housing Development is a not-
for-profit organization without corporate parents, subsidiaries, or affiliates within
the meaning of the rule.
The New York Housing Conference is a not-for-profit organization
without corporate parents, subsidiaries, or affiliates within the meaning of the rule.
Phipps Houses is a not-for-profit organization without corporate parents,
subsidiaries, or affiliates within the meaning of the rule.
Greater New York Hospital Association is a not-for-profit organization
without corporate parents. It has the following subsidiaries/affiliates: Greater New
York Hospital Foundation, Inc.; GNYHA Management Corp.; GNYHA Ventures,
Inc.; GNYHA Services, Inc.; Mobile Health, Inc.; Nexera, Inc.; GNYHA
Holdings, LLC; Essensa Ventures, LLC; Inovatix, LLC; and GNYHA Purchasing
Alliance.
The Healthcare Association of New York State is a not-for-profit
organization without corporate parents. It has the following subsidiaries/affiliates:
C-1
HANYS Services, Inc. d/b/a HANYS Solutions; Datagen, Inc.; HANYS Group
Purchasing Services, Inc.; Group Insurance Agency, Inc. d/b/a HANYS Benefit
Services; Healthcare Community Securities Corporation, Inc.; Healthcare Research
and Educational Fund, Inc.; and The Western New York Healthcare Association,
Inc.
The Commission on Independent Colleges and Universities is a not-for-
profit educational organization without corporate parents, subsidiaries, or affiliates
within the meaning of the rule.
2
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ..................................................... C-1
INTEREST OF AMICI CURIAE .............................................................................. 1
ARGUMENT .. ……………………………………………………………………..5
I. MUNICIPALITIES HAVE AND NEED BROAD DISCRETION TO MANAGE, REPURPOSE AND DEPLOY LAND THAT THEY OWN. ..... 5
II. MUNICIPAL LAND CANNOT BECOME PARKLAND ABSENT A SHOWING OF UNEQUIVOCAL INTENT TO DEDICATE. ...................... 6
A. Unequivocal Intent Has Been The Rule For Over 150 Years. .............. 6
B. The Unequivocal Intent Standard Makes Good Policy Sense Because It Protects Municipalities’ Needed Discretion. ....................... 9
III. UNEQUIVOCAL INTENT TO DEDICATE CANNOT BE ESTABLISHED BY PERMISSIVE PUBLIC USE OF MUNICIPAL LAND. ........................................................................................................... 11
A. Neither This Court Nor Any Lower Court Has Ever Held That Permissive Public Use Of Municipal Land Conclusively Renders That Land, Ipso Facto, Parkland. ........................................................ 11
B. Permissive Public Use Of Municipal Land Is Not Probative, Let Alone Dispositive, Of Dedicative Intent. ............................................ 18
C. A Contrary Rule Will Chill Valuable Permissive Use Of Municipal Land. .................................................................................................... 20
CONCLUSION ........................................................................................................ 22
i
TABLE OF AUTHORITIES
Page(s)
CASES
Angiolillo v. Town of Greenburgh, 290 A.D.2d 1 (2d Dep’t 2001) ........................................................................ 7, 18
Cook v. Harris, 61 N.Y. 448 (1875) ....................................................................................... 12, 16
Flack v. Vill. of Green Island, 122 N.Y. 107 (1890) ..................................................................................... 13, 14
Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 (2001) ................................................................................... 10, 11
Holdane v. Trustees of Cold Spring, 21 N.Y. 474 (1860) ............................................................................. 6, 7, 8, 9, 11
Hunter v. Trustees of Sandy Hill, 6 (Hill) 407 (1844) .............................................................................................. 15
Lazore v. Bd. of Trustees of Massena, 191 A.D.2d 764 (3d Dep’t 1993) ........................................................................ 17
Newton v. City of Dunkirk, 121 A.D. 296 (4th Dep’t 1907) ............................................................................. 8
Niagara Falls Suspension Bridge Co. v. Bachman, 66 N.Y. 261 (1876) ....................................................................................... 7, 8, 9
People v. Argyris, 24 N.Y.3d 1138 (2014) ....................................................................................... 18
People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394 (1937) ........................................................................................... 14
People v. Loehfelm, 102 N.Y. 1 (1886) ......................................................................................... 15, 16
ii
Powell v. City of New York, 85 A.D.3d 429 (1st Dep’t 2011) ..................................................................... 7, 18
Riverview Partners, L.P. v. City of Peekskill, 273 A.D.2d 455 (2d Dep’t 2000) .................................................................... 8, 17
Union Square Park Cmty. Coal., Inc. v. N.Y.C. Dep’t of Parks & Recreation, 22 N.Y.3d 648 (2014) ......................................................................................... 10
Vill. of Croton-on-Hudson v. Cnty. of Westchester, 38 A.D.2d 979 (2d Dep’t 1972) .......................................................................... 16
Williams v. Gallatin, 229 N.Y. 248 (1920) ........................................................................................... 11
OTHER AUTHORITIES
81 N.Y. Jur. 2d Parks § 37 (2015) ........................................................................... 20
56 R.C.N.Y. § 6-04 .................................................................................................. 19
11A McQuillin Mun. Corp. § 33:35 (3d ed. 2014) .................................................. 19
BLACKS LAW DICTIONARY (9th ed. 2009)................................................................ 13
iii
INTEREST OF AMICI CURIAE
Each of the amici on this brief is participating because of the great impor-
tance they all assign to the preservation of municipal control over city-owned
land. Whatever their goals for New York City – more low-income housing, more
and better parks, integrated healthcare facilities, neighborhood development – they
are united in thinking that the longstanding rules which preserve cities’ discretion
to manage, repurpose and deploy their land for a myriad of purposes best serve the
public welfare and best provide for political accountability. They are united as
well in opposing the approach suggested by Petitioners here, under which – even
though the City did not unequivocally intend to dedicate various parcels to park
use – those parcels somehow nonetheless become parkland and cannot be used for
other purposes without the express consent of the state legislature, based on some
litigious city residents’ undefined feeling that that space is a park or on some un-
specified public uses of the land for an indeterminate amount of time. That ap-
proach, a drastic alteration to the traditional rule, would be a calamity, politically,
socially, recreationally, and in terms of long-term city development and planning.
Amici are not here opposing (or supporting) the particular project by NYU in
Greenwich Village that spawned this litigation. They take no position here on that
project. But they are united in seeking to defend the well-established rule –
applied by New York courts for more than 150 years – that protects and preserves
1
municipal discretion to manage municipal land until and unless there has been an
“unequivocal” dedication to parkland. They are united, too, in believing that aban-
doning the longstanding rule looking to unequivocal dedicatory intent – and focus-
ing instead on whether some members of the public have felt that the land they use
is parkland – would disserve the vital interests of all New Yorkers. It would
deprive cities of the traditional and necessary powers to plan and manage for the
long term; and impair (if not entirely preclude) temporary beneficial use of city-
owned land for recreational or other short-term uses as longer-term projects that
require more significant investments are explored and pursued.
New Yorkers for Parks is a citywide independent organization championing
quality parks and open spaces for all New Yorkers in all neighborhoods. Its
guiding principles are that open spaces, and the resources to support them, should
be equitably distributed citywide; existing parks and open spaces should be pre-
served and well-maintained; parks are an essential public service and should be
primarily funded by public dollars; and innovative financing strategies for creating,
improving, and maintaining open space should be explored to augment public
funding.
The Association for Neighborhood and Housing Development (“ANHD”)
was founded in 1974 with the mission to help low-income communities thrive and
to ensure that all New Yorkers can live in decent, affordable housing and
2
neighborhoods. It is a membership of 99 of the City’s leading community devel-
opment and neighborhood-based not-for-profit affordable housing organizations,
using grassroots advocacy strength, bricks-and-mortar development skills, and
focused neighborhood-level services to work for more decent, just, and equitable
communities. It and its member groups have built over 100,000 affordable units in
New York City in the past 25 years. ANHD’s policy activism has directly lever-
aged over $1.3 billion in new resources for affordable housing in the past 10 years.
The New York Housing Conference is a broad-based coalition that
advocates for decent affordable housing for all New Yorkers. It promotes strong
housing policies, adequate funding, practical regulations, and increased public
awareness of the need for, and benefits of, affordable housing.
Phipps Houses is the oldest and largest not-for-profit developer, owner, and
manager of affordable housing in New York City. Its social services affiliate,
Phipps Neighborhoods, provides children, youth and families in low-income
neighborhoods the opportunities they need to thrive through comprehensive
education and career programs, and access to community services.
Greater New York Hospital Association (“GNYHA”) is a trade association
comprising nearly 250 hospitals and continuing care facilities, both voluntary and
public, in the metropolitan New York area and throughout the State, whose core
mission is helping hospitals deliver the finest patient care in the most cost-effective
3
way. Preserving the discretion of municipalities to acquire and manage property
with a view to the best use over the long run – so as, for example, to be able in
future years to change, move and develop new sites for health care delivery in
response to community needs without having the temporary use of such parcels for
recreational purposes preclude such decisions – is important for GNYHA’s
member hospitals.
The Healthcare Association of New York State (“HANYS”) is a trade
association that represents and advocates on behalf of all New York’s hospitals and
health systems at all levels of the federal and state government. HANYS works
with policy leaders, regardless of political affiliation, communicates members’
concerns and positions to New York and national media in support of the
Association’s legislative and regulatory initiatives, and works to advance the health
of individuals and communities by providing leadership, representation, and
service to healthcare providers and systems across the state and the entire
continuum of care.
The Commission on Independent Colleges and Universities (“CICU”) is a
statewide association representing more than 100 independent colleges and
universities in New York State. Its mission is to develop consensus among a
diverse membership and to advance higher education public policy. CICU’s
members have a strong interest in preserving municipal discretion over land use
4
decisions so that municipally-owned land remains available to colleges and
universities as they strive to provide their students with a superior education in
today’s changing world.
ARGUMENT
I. MUNICIPALITIES HAVE AND NEED BROAD DISCRETION TO MANAGE, REPURPOSE AND DEPLOY LAND THAT THEY OWN.
A duly elected municipal government is a reflection of the citizens it serves,
responsible for achieving the community’s priorities and accountable at the ballot
box for decisions made in pursuit of that objective. Of course, not all citizens
articulate their community’s priorities in the same way. Municipal governments
are thus charged with balancing their citizens’ varied and sometimes conflicting
interests.
Land use decisions are among the most difficult choices municipalities need
to make, and they need to be made with a view to the long term – a decision to
acquire in one decade, leading to percolating disputes about what to do with the
land eventually when conditions permit or money is in hand. Should the land be
used as a street or a railroad in order to improve the city’s infrastructure? Should it
be used to add needed capacity to the city’s public schools? Should it be used to
build affordable housing and ease a housing crisis? Should it be developed to help
spur economic growth in a lagging neighborhood? Should it be open recreational
space, or be conveyed to a hospital for a new, expanded emergency room? Should
5
it be sold to raise additional funds for essential government services? Municipali-
ties need broad discretion in making land use decisions precisely because these
decisions require the balancing of diverse interests and constrained resources over
time. No formula can determine the “right” answer; instead, municipal officials
elected by, and therefore accountable to, the people most impacted by local land
use decisions are entrusted with the task. If residents are unhappy with the
ultimate balance that is struck, they can compel change with the casting of a ballot.
II. MUNICIPAL LAND CANNOT BECOME PARKLAND ABSENT A SHOWING OF UNEQUIVOCAL INTENT TO DEDICATE.
A. Unequivocal Intent Has Been The Rule For Over 150 Years.
Contrary to Petitioners’ assertion, Pet’rs’ Br. n.12, this Court recognized
over a 150 years ago that dedication of any sort will not be found absent a showing
of the owner’s unequivocal intent to dedicate. Implied dedication is, first and
foremost, a question of the owner’s intent proved through the owner’s acts.
Holdane v. Trustees of Cold Spring, 21 N.Y. 474, 477 (1860). As this Court
expressly held in Holdane – a holding Petitioners blithely propose to abandon:
The owner’s acts and declarations should be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use. If they be equivocal, or do not clearly and plainly indicate the intention to permanently abandon the property to the use of the public, they are insufficient to establish a case of dedication.
Id. at 477-78 (emphasis added).
6
Applying this standard in Niagara Falls Suspension Bridge Co. v. Bachman,
the Court rejected a claim of dedication despite a map filed by the original owner
demarking the land at issue as a street because “the owners, by their acts and dec-
larations, negatived the intention of dedicating the locus in quo, absolutely and
irrevocably, to the public use, and thus destroyed the force and effect usually given
to maps and plots of land made under similar circumstances as evidence of an
intent to dedicate or of an actual dedication of land to the public.” 66 N.Y. 261,
269 (1876). In particular, the owners had retained the right to control and to direct
the use of the land – “a power entirely repugnant to, and destructive of, any
supposed dedication.” Id. at 270. Because “[t]he acts and declarations of the land
owner” were not “unmistakable in their purpose and decisive in their character,”
there was no dedication. Id. at 269.
Consistent with Holdane and Niagara Falls, lower courts routinely and
consistently apply the unequivocal intent standard when asked to determine if a
dedication has been made. See, e.g., Powell v. City of New York, 85 A.D.3d 429,
431 (1st Dep’t 2011) (“[I]mplied dedication may exist when a municipality’s acts
and declarations manifest a present, fixed, and unequivocal intent to dedicate.”
(internal quotes and citation omitted)); Angiolillo v. Town of Greenburgh, 290
A.D.2d 1, 10 (2d Dep’t 2001) (“To establish that property has been dedicated for
public use, there generally must be an unequivocal express or implied offer by the
7
owner and, where required, an express or implied acceptance by the public.”);
Riverview Partners, L.P. v. City of Peekskill, 273 A.D.2d 455, 455 (2d Dep’t 2000)
(“[I]mplied dedication may exist when a municipality’s acts and declarations
manifest a present, fixed, and unequivocal intent to dedicate”).
Petitioners’ refusal to recognize unequivocal intent as the controlling
standard is hard to understand, except as avoidance of a central point for which
they have no response. Tellingly, it is not until a footnote on page 44 of their brief
that they even attempt to articulate an argument against the unequivocal intent
standard, and even then they make no mention of the unequivocal intent standard
articulated by this Court in Holdane and Niagara Falls. Pet’rs’ Br. n.12. The most
they can muster is a citation to Newton v. City of Dunkirk, 121 A.D. 296 (4th Dep’t
1907), which Petitioners claim allowed for a finding of dedication in the face of
equivocal evidence. Not so. In Newton, the Fourth Department in fact recognized
that dedication is a question of the owner’s intent, determined by acts on the part of
the owner that are “unequivocal in their character.” Id. at 298. According to the
court, the evidence showed “very conclusively” that the owner intended to dedicate
the street as a public thoroughfare because he had mapped the land as a street and
had described it as a street in conveyances of adjacent parcels – acts considered
“indisputable” evidence of intent – and because there was no credible evidence to
8
the contrary. Id. at 298, 299. Thus, Newton is in fact wholly consistent with the
unequivocal intent standard dictated by this Court in Holdane and Niagara Falls.
B. The Unequivocal Intent Standard Makes Good Policy Sense Because It Protects Municipalities’ Needed Discretion.
Unequivocal intent is not just the long-controlling standard, it is the right
standard. First, it is a clear test that preserves decision-making power in the most
democratically accountable branches of government. Any lesser standard would
require courts, rather than elected officials, to engage in the complex balancing of
varied interests that inform municipal land use decisions. Not only would making
those decisions in the context of litigation rather than in the context of holistic city
planning improperly insulate such decisions from the democratic process, but it
would also make them more susceptible to manipulation by a single, vocal interest
group. That is no way to make important land use decisions for cities, large or
small.
Second, an implied dedication standard other than unequivocal intent would
interfere with municipal decisions concerning temporary use while longer-term use
is being decided (or percolating), rendering any park-like use of municipal land
sufficient to take decisions about the future use of that land out of local control. It
would therefore privilege park purposes over other equally important city
purposes, including providing affordable housing, jobs and economic development,
and health care facilities and schools in underserved neighborhoods. Providing
9
greenspace for recreation and environmental preservation is a worthy objective, but
worthy does not mean paramount. Indeed, no single use of public land can claim
“trump” value, lest cities be replete with hospitals but no schools, housing but no
businesses to provide jobs, parks but no infrastructure.
Of course, once land is in fact established as parkspace, the public trust
doctrine raises the bar for modifying that use. See, e.g., Union Square Park Cmty.
Coal., Inc. v. N.Y.C. Dep’t of Parks & Recreation, 22 N.Y.3d 648, 654 (2014)
(“Under the public trust doctrine, dedicated parkland cannot be converted to a
nonpark purpose for an extended period of time absent the approval of the State
Legislature.” (emphasis added)). But, contrary to Petitioners’ suggestion, Pet’rs’
Br. 32-33, 38-39, the fact that the public trust doctrine restricts the usage of land
once it is already established as parkland says nothing about the conditions under
which municipal land becomes dedicated parkland in the first place – the central
issue in this case. The myriad public trust doctrine cases cited by Petitioners are
therefore inapposite to the question before the Court: how to determine in the first
instance whether land owned by a city (or other municipality) is parkland to which
the public trust doctrine applies. See Union Square Park Cmty. Coal., Inc., 22
N.Y.3d at 654 (challenge to lease of Union Square Park pavilion to restaurant
group on the grounds that the restaurant did not serve “park purposes”); Friends of
Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 629 (2001) (challenge to
10
placement of water treatment plant under Van Cortlandt Park on the grounds that
the plant would create a substantial intrusion on parkland for “non-park
purposes”); Williams v. Gallatin, 229 N.Y. 248, 250 (1920) (challenge to lease of
Central Park’s Arsenal Building to the American Museum of Safety on the grounds
that the museum did not serve “park purposes”).
The unequivocal intent standard preserves for municipalities the discretion
to allow for temporary park-like use of municipal land without jeopardizing their
ability to balance the full range of vital community needs over time.
III. UNEQUIVOCAL INTENT TO DEDICATE CANNOT BE ESTABLISHED BY PERMISSIVE PUBLIC USE OF MUNICIPAL LAND.
A. Neither This Court Nor Any Lower Court Has Ever Held That Permissive Public Use Of Municipal Land Conclusively Renders That Land, Ipso Facto, Parkland.
Petitioners have failed to identify a single authority for their radical
proffered rule, i.e., if the land in question is ever used for park-like purposes, then
the land becomes, absolutely and irrevocably, parkland regardless of evidence of
contrary intent. Petitioners craft this rule only by misleadingly merging the issue
of dedicative intent with that of public acceptance – two separate considerations in
determining whether land has been irrevocably committed to public use. See
Holdane, 21 N.Y. at 477-78 (recognizing the separate elements of dedication and
acceptance). In fact, not one of the cases cited by Petitioners holds that public use
11
is the “touchstone” for dedicative intent, and certainly not where there is contrary
evidence of the owner’s intent. See Pet’rs’ Br. 32-40.
In Cook v. Harris – the centerpiece of Petitioners’ argument – this Court
distinguished between the owner’s intent to dedicate, as determined though the
owner’s acts and declarations, and the public’s acceptance of the owner’s
dedication, which acceptance can be manifested by long public use:
The dedication and acceptance may be proved by the acts of the parties, and the circumstances of the case. The owner’s acts and declarations should be such as to manifest an intention to abandon or devote his property to the specific public use. In the case of a highway, the public must accept the highway, and before such acceptance the dedication may be revoked. Such acceptance may be proved by long public use, or by the positive acts of the public authorities in recognizing and adopting the highway.
61 N.Y. 448, 454 (1875) (emphasis added).1 Petitioners therefore misrepresent the
holding in Cook when they claim that the Court emphasized public use as “a sine
qua non in establishing . . . dedication to public purposes.” Pet’rs’ Br. 34. To the
contrary, the Court identified as undisputed facts “show[ing] an unequivocal
dedication” the owner’s agreement to convey the land to the commissioners of
highways and a bond making this conveyance and specifying that the land was for
a public highway. 61 N.Y. at 454. The public’s usage of the land as a public high-
way was evidence of acceptance and certainly not dispositive of dedication. Id.
1 It is worth noting that in Cook this Court applied the unequivocal intent standard. 61 N.Y. at 454 (“The facts in this case showing a dedication are quite unequivocal.”).
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Petitioners’ reliance on Flack v. Village of Green Island, Pet’rs’ Br. 35, is
similarly misplaced given that in Flack this Court noted on three separate occa-
sions that public use constitutes evidence of acceptance. See 122 N.Y. 107, 114
(1890) (“[I]t did not become a street or highway until there had been an
acceptance, either by formal act of public authority or by common user, under such
circumstances as to show an intention to accept it.” (emphasis added)); id. (“To
complete the dedication of a highway, if there has been no formal act of acceptance
by public authority, the acceptance may be made by common user as a highway of
the land dedicated.” (emphasis added) (internal quotations omitted)); id. at 115
(“Acceptance . . . may be implied . . . from long user by the public.” (emphasis
added) (internal quotations omitted)).
While it is true that in recounting the state of the law this Court wrote
“[l]ong continued and uninterrupted use of land by the public . . . furnishes strong
evidence of dedication,” id. at 114, that statement did not purport to jettison the
requirement that dedication is permissible only on an unequivocal showing of
dedicatory intent, and is best understood as referring to the entire process of
converting private land to public land and not to the first donative step of that
process. See BLACKS LAW DICTIONARY (9th ed. 2009) (defining “common law
dedication” as “[a] dedication made without a statute, consisting in the owner’s
appropriation of land, or an easement in it, for the benefit or use of the public, and
13
the acceptance, by or on behalf of the land or easement.”). Any other reading
cannot be harmonized with this Court’s repeated acknowledgements, detailed
above, that public use is evidence of acceptance.
Moreover, given the factual record in Flack, this Court had no occasion to
hold that public use was, in and of itself, sufficient evidence of dedicative intent,
nor did it have occasion to hold that public use established unequivocal intent in
the face of contrary evidence. The land owner in Flack had both made and
received numerous conveyances of land based on a map that identified the land at
issue as a public street – a fact considered “indisputable” evidence of dedicatory
intent, 122 N.Y. at 114, and one on which this Court relied in determining that the
land had been dedicated to public use, id. at 115-16.
One other decision by this Court deserves particular discussion because of
the way in which it is explained in Petitioners’ papers. Petitioners write that in
People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394 (1937), “this Court
again emphasized ‘long public use,’ occurring without any ‘objection’ from the
owner, as the central basis for implied dedication.” Pet’rs’ Br. 36. This statement
simply is not true.
Brooklyn & Queens Transit Corp. was a criminal case in which the defen-
dant railroad was charged with maintaining a public nuisance on a public highway.
273 N.Y. at 397. It was therefore the city’s burden to prove beyond a reasonable
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doubt that the land in question in fact constituted a public highway. Id. This Court
held that the city had failed to meet its burden because, although there had argua-
bly been a dedication when the land was mapped as a street and conveyances of
adjacent parcels identified the land as a street, there was no evidence that the
dedication had been accepted before the defendant railroad took possession of the
land and exerted exclusive use over it. Id. at 398, 401; see also id. at 402. This
Court specifically held that “use alone does not make a public highway,” further
stating that “mere travel by the public over a country road not laid out or dedicated
by the owner without more has never been held to be use of the road by the public
as a highway . . . .” Id. at 400 (emphasis in original). At no time did this Court
reach the conclusion volunteered by Petitioners. See Pet’rs’ Br. 36.
The other two decisions of this Court cited by Petitioners are similarly
inapposite as neither case required the Court to determine dedicative intent.
People v. Loehfelm, 102 N.Y. 1, 3 (1886) (“The dedication . . . is not disputed.
The debate has been over the acceptance by the public and the character of the
proof necessary to establish that fact.”); Hunter v. Trustees of Sandy Hill, 6 (Hill)
407, 410-12 (1844) (private owners “[did] not deny the fact of dedication,” only its
effect: “[T]he use for which the dedication was made must determine the extent of
the right parted with by the owner of the land, and acquired by the public. Where,
as in the case of a highway, the public acquire but a mere right of passage, the
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owner who makes the dedication retains a right to use the land in any way
compatible with the full enjoyment of the public easement. But the case is widely
different here. The land in question was dedicated as a grave yard, and the ashes
of the dead should be allowed to repose in undisturbed solitude and quiet.”).
The lower court decisions cited by Petitioners, which are not binding on this
Court in any event, fare no better. Village of Croton-on-Hudson v. County of
Westchester – the other cornerstone of Petitioners’ argument – reflects the
conclusion that there was unequivocal evidence of dedication and acceptance
where the land was acquired for public park purposes by a special borrowing and
was used as such for over 45 years. 38 A.D.2d 979, 980 (2d Dep’t 1972). The
court was simply imprecise in its language when it wrote that “the long-continued
use of the land for park purposes constitutes a dedication and acceptance by
implication.” Id. This is clear from the fact that the court cited Loehfelm and Cook
for this proposition, both of which, as explained above, held that public use was
evidence of acceptance. See supra pp. 12, 15. Moreover, the court had no
occasion to hold either that public use was conclusive evidence of dedication or
that public use could trump contrary evidence; not only was the land expressly
acquired for public park purposes, but there was no evidence suggesting any other
intended purpose for the land. 38 A.D.2d at 980. At best for Petitioners, public
16
use was simply confirmation of otherwise undisputed evidence of the county’s
intent.
Anything more than a cursory read of Riverview Partners demonstrates that
it too cannot support Petitioners’ proffered rule. It is true that Riverview Partners
exhibits inexactitude in language by describing both evidence relevant to
dedicative intent and evidence relevant to public acceptance as evidence of
“implied dedication.” 273 A.D.2d at 455-56. But this imprecision aside, the
Second Department had no reason to hold, and did not hold, that public use was
dispositive of donative intent, much less in the face of contrary evidence. First, it
should be noted that unlike the instant action whereby a private group seeks to
establish the municipal land owner’s donative intent over its objection, in
Riverview Partners it was the municipal land owner that claimed the land as a
park. Id. at 455. Second, the city of Peekskill established that it expressly
purchased the property for park purposes, that the land was mapped as a park, and
that signage on the land identified it as “Fort Hill Park” – none of which the
plaintiffs rebutted. Id. at 455-56. The court therefore had no basis to hold, and did
not hold, either that public use of the land as a park, without more, establishes
unequivocal dedicatory intent, or that park-like use establishes unequivocal
dedicatory intent in the face of contrary evidence.
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Finally, Petitioners cite a cluster of cases that repeat imprecise language
from Lazore v. Board of Trustees of Massena, 191 A.D.2d 764 (3d Dep’t 1993)
but, like Lazore, do not otherwise rely on public use in determining dedicative
intent.2 Id. at 766 (land not impliedly dedicated as a park where tax roll identified
it as village-owned material storage, plans for turning the land into a recreational
facility were described as non-binding, designation of land as part of preservation
district was nonetheless consistent with non-park uses, and no zoning map listed
the parcel as a park); Powell, 85 A.D.3d at 431 (no implied dedication where land
was not acquired for park purpose and its assignment to the Department of Parks
was made under the express condition that it not be mapped as parkspace);
Angiolillo, 290 A.D.2d 1 at 10-11 (holding that “[b]ecause a parkway is not the
same as a park,” the excess parkway property could be sold).
B. Permissive Public Use Of Municipal Land Is Not Probative, Let Alone Dispositive, Of Dedicative Intent.
Not only is Petitioners’ proposed rule regarding public use unsupported by
the case law, it is also wrong as a matter of reason. Municipalities have every
incentive to ensure that their land is being used in a way that benefits the public at
any point in time – both in the short run and the long run. A city might not have a
2 Petitioners recognize that none of these cases in fact turned on public use, describing them as “affirm[ing] the importance of long continuous public use” “[e]ven when rejecting claims of implied dedication on other grounds.” Pet’rs’ Br. 39. This is the very definition of dicta. See, e.g., People v. Argyris, 24 N.Y.3d 1138, 1153-54 (2014) (pronouncements not essential to a court’s holding constitute dicta).
18
present use for a vacant lot it owns or might have a desired use but no presently
available funds to action that use. Under those circumstances, the city might well
allow local residents to use the lot as a community garden, for example, rather than
insist that it lie fallow, unless to do so would be to risk surrender of the lot to the
public trust doctrine and the state legislature’s control.
The simple fact is that permitting recreational or other park-like uses does
not indicate the city’s intention to abandon control over the property and irrevoca-
bly dedicate it as parkspace. To the contrary, such permissive use is entirely
consistent with the intent to maintain control over the property and later deploy it
to different ends as either the city’s needs change or its financial ability to meet
those needs changes. New York City in fact has enacted a rule regarding its
community gardens in order to avoid precisely the kind of argument Petitioners
make here. See 56 R.C.N.Y. § 6-04 (“Lots are not dedicated as, and will not be
deemed to be dedicated as, parkland unless they have otherwise been mapped as
parkland by the City.”).
Indeed, “[t]he leading treatise on the powers of New York municipalities,”
as Petitioners dub it, Pet’rs’ Br. 40, squarely rejects the rule they defend, warning
that “mere permissive use of land . . ., where the user is consistent with the
assertion of ownership by the alleged dedicator, does not, by itself constitute a
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dedication nor demonstrate a dedicatory intention.” 11A McQuillin Mun. Corp. §
33:35 (3d ed. 2014).
C. A Contrary Rule Will Chill Valuable Permissive Use Of Municipal Land.
If permissive public use of municipal land is dispositive of dedicative intent,
thereby automatically divesting municipalities of control over their land, then
municipalities will be forced to leave that land closed to the public in order to
preserve the discretion that is essential to city management. Indeed, Petitioners’
argument seems to say that the only way to prevent an implied dedication is to lock
the public out of municipal lands and to prevent stewardship of such properties by
any public or private entity that is in any way connected with outdoor recreation or
the preservation of open space. Worse public policy can hardly be imagined. As
legal commentators have recognized, this is not in the public interest:
Ordinarily, the rule that land acquired, restricted, or dedicated to park use may not be used for any other purpose absent legislative authority is not applied to land acquired for general municipal purposes and used for a park. In other words, land acquired in fee for general purposes without any restriction, even though used for a park, may be used for other municipal purposes. To hold otherwise would cause public officials to bar the use as a park of land acquired for future needs, and this would not be in the public interest.
81 N.Y. Jur. 2d Parks § 37 (2015) (emphasis added).
New York City’s community gardens illustrate the importance of enabling
cities to allow temporary park-like uses of city-owned land without fear of
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abandoning all control over future uses of that land. During the fiscal crisis of the
1970s, the city became the owner of more than 10,000 vacant city-owned lots
acquired as a result of unpaid taxes, many of which contained decrepit abandoned
buildings. In 1978, recognizing that such lots were harming surrounding neighbor-
hoods, New York City began providing materials and services to community
groups that received interim leases for these lots in order to turn them into places to
beautify the neighborhoods, grow food, and gather as a community. When the
City regained its financial footing in the following decades, it looked to convert
certain of these properties to other uses, including development of much needed
affordable housing (a need that remains pressing today). Had Petitioners’ rule for
implied dedication governed, the City likely would not have allowed many of those
gardens to exist, for fear of losing control over future land use decisions; and such
long and continuous use would have effectively given neighbors permanent rights
to their new-found gardens. Writ large, Petitioners’ proposed rule – a kind of “if a
city-owned parcel feels to some neighbors like parkland, and is used for some
park-like purposes, then it is parkland, subject to the control of the state legislature
rather than the city itself” – would impair long-term planning and staged develop-
ment, and, even more damagingly, force the city to leave parcels fallow and locked
up in order to preserve any opportunity for future development.
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Moreover, and notably, the eventual arrangements made by the City for such
properties, which entailed payments by (or on behalf of) neighbors or not-for-profit
groups to purchase some of those lots from the City notwithstanding their then-
“long and continuous use” as public gardens confirms that those lots were
understood to be City property – notwithstanding exactly the kind of “long and
continuous use” that, in Petitioners’ insupportable argument, should have rendered
such purchase payments unnecessary.
CONCLUSION
This Court should reject Petitioners’ attempt to turn 150 years of law on its
head and thereby deprive municipalities of much needed discretion in determining
how best to serve the needs of their citizens over time. Local land use decisions
are best made by the municipal officials elected by, and therefore accountable to,
the people most impacted by those decisions. Any standard less than unequivocal
intent would take the responsibility of balancing communities’ varied interests out
of the hands of these officials and place it in the hands of courts and litigants.
What is more, a standard that looks to public use as the exclusive determinant of
dedicative intent would chill short-term permissive use that indisputably benefits
communities. For these reasons, amici respectfully request that this Court reject
Petitioners’ proffered rule and affirm the First Department’s judgment.
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Dated: April 24, 2015
Respectfully submitted,
PROSKAUER ROSE LLP
By:
Charles S. Sims Celia V. Cohen 11 Times Square New York, New York 10036 (212) 969-3000 (212) 969-2900 (fax) csims@proskauer. corn ccohen@proskauer. corn
Attorneys for Amici Curiae New Yorkers for Parks, The Association for Neighborhood and Housing Development, The New York Housing Conference, Phipps Houses, Greater New York Hospital Association, The Healthcare Association of New York State, and The Commission on Independent Colleges and Universities.
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