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

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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

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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).

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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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