New York Court of Appeals to Address Public Trust Doctrine in Connection With Challenge to NYU Expansion Plan

On February 24, 2015, the New York Court of Appeals granted appellants’ motion for leave to appeal in Glick v. Harvey, 2015 WL 753795 (N.Y. Feb. 24, 2015), which should result in a significant ruling by New York’s highest court concerning the parameters of the implied public trust doctrine.  The public trust doctrine provides that public parkland is impressed with a public trust, and requires the consent of the State Legislature before parkland can be alienated or used for non-park purposes. The Glick case concerns an Article 78 proceeding challenging a New York City Council resolution approving an expansion plan for New York University which seeks to use four land parcels that had been used as New York City parks since the 1980’s and 1990’s, to be used for non-park purposes.  The New York State Legislature has not consented to the use of this parkland for non-park purposes.  NYU’s expansion plan called for the construction of four new buildings, and the use of the following four parcels of parkland for non-park purposes: Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens (a community garden), and the Mercer-Houston Dog Run.  Accordingly, petitioners, a series of individuals and citizens’ groups, sought to enjoin the implementation of NYU’s plan unless and until they obtained the consent of the State Legislature to use the parkland for non-park purposes.  The respondents in the case are various agencies and authorities of the State and the City of New York that had approved NYU’s plan.

Pursuant to the public trust doctrine, land can become parkland either through express provisions, such as restrictions in a deed or a legislative enactment, or by implied acts such as continued use as a park.  See Glick v. Harvey, 2014 WL, at *14 (N.Y. Sup. Ct. Jan. 7, 2014). It was undisputed that at least three of the four parcels of parkland at issue did not constitute express parkland.  See id.  The issue posed to the court was whether any of the parcels had been impliedly dedicated as parkland. Id.

 

Petitioners were successful before the trial court, which found that there had been an implied dedication of parkland with respect to the parcels based, among other things, upon decades of continuous use as public parks, and the trial court enjoined NYU from engaging in any construction without first obtaining the consent of the State Legislature.  See Glick v. Harvey, 2014 WL 96413 (N.Y. Sup. Jan. 7, 2014).  The trial court further held that the City of New York’s interpretation of the law governing the implied public trust doctrine “would effectively superimpose the requirement of express dedication on the doctrine of implied dedication.” See Glick, 2014 WL 96413, at *15.

 

However, in October 2014 the First Department reversed the trial court, and held that petitioners had failed to meet their burden to show “that the City’s acts and declarations manifested a present, fixed and unequivocal intent to dedicate any of the parcels at issue as public parkland.”  Glick v. Harvey, 121 A.D.3d 498, 499, 994 N.Y.S.2d 118, 119 (First Dept. 2014).  While the First Department’s ruling was somewhat cursory, it was persuaded that petitioners had not met their burden of proof, because, in its view: (i) any management of the parcels was understood to be temporary; (ii) the parcels had been mapped as streets since they were acquired by the City, and not as parks; and (iii) certain of the parcels had not been used exclusively as parks, but also as pedestrian thoroughfares.  Id., 121 A.D.3d at 499-500, 994 N.Y.S.2d at 119-120.  The First Department did not address the argument raised below that the City’s interpretation of the public trust doctrine would effectively superimpose the doctrine of express dedication of the doctrine of implied dedication.  See Glick, 121 A.D.3d 498, 994 N.Y.S.2d 118 (First Dept. 2014).

 

It is likely that the Court of Appeals’ ruling in Glick will clarify the scope of implied dedication under the public trust doctrine, and its relationship with the express dedication doctrine. More specifically, the court will probably address whether the use of land as a public park for a substantial period of time, even when the municipality has not explicitly designated the land as a park, is sufficient to invoke the implied dedication doctrine.  The Court of Appeals will also likely clarify whether the test for express dedication is properly superimposed on the test for implied dedication, or whether the tests for the two doctrines are separate and distinct.  That is, if there are facts that suggest that a parcel has not been expressly dedicated as parkland, does that prevent a finding of implied dedication even when a a parcel of land has been used continuously as public parkland for a substantial period of time.  A ruling by the Court of Appeals on these issues should provide municipalities with guidance regarding when they may alienate parkland that was not expressly dedicated as such, for non-park purposes without having to obtain the consent of the State Legislature.