Posted by Linda Gross | July 15, 2015 | Under LCG Blog

We’ve been working with the many groups and people opposed to NYU’s ridiculous, bloated and unneeded expansion plan for some time now. Our main client, NYUFASP, represents hundreds of professors and faculty within NYU who are also against the plan; this, in itself, speaks volumes about what an awful plan it is: one that will crush the Village and abolish some much needed green and open spaces with it.

There was a lawsuit filed in 2012 against the plan. One of the main aspects of the lawsuit was that the green spaces that would be bulldozed by the plan are public parks, and, therefore, under the tenets of the Public Trust Doctrine, cannot be simply “given away” for development. That doctrine, which dates back to the time of the Roman Empire, is a crucial part of America’s common law tradition. According to the Doctrine, the government holds the titles to certain waters and lands in trust for the people; this has evolved to extend protection to scenic resources, open space in general, energy generation, preservation of ecosystems and historical sites.

In New York State, if an entity wishes to develop or remove a parcel of parkland from public ownership and use, it must follow a legal process called “alienation,” which, among other conditions, requires approval from the state legislature.

This lawsuit wound its way through the court system and, ultimately, came before the state’s highest court, the NYS Court of Appeals. A few weeks ago, we found out that we’d lost the case.

Reading the Court’s decision left me wondering whether we had somehow travelled to the “doublespeak”-laden parallel universe of Orwell’s 1984. Although it’s true that some of the parks in question never “formally” became part of the Parks Department, at least a couple of them did, in fact, have parks department signage, were maintained by the Parks Department, and were listed on the Parks Department’s website. In addition, one of the parks was actually dedicated – about two decades ago – by the Parks Commissioner at that time, Henry Stern (who, by the way, gave our side an amicus brief detailing the fact that, yes, that’s really a park). This would mean that they were, quite obviously, implied parkland, and that they’d be protected under the Public Trust Doctrine. Not only would they be protected, but they couldn’t be given away for development unless approved by the state legislature. Even then, the developer would have to “give back” to the community the same amount of open space as was taken.

Importantly, the whole community has used those spaces as parks, some for decades. But, apparently, if it looks like a parks, acts like a park, and is used like a park it’s….not. Here’s just part of what the court said, “That a portion of the public may have believed that these parcels are permanent parkland does not warrant a contrary result.” This means that although the public (and, really, not just a part of the public, but ANYONE passing by these parks would think they’re parks) actually thought these were parks, it does not mean that they were/are. Huh? If the Public Trust Doctrine is there to protect public lands, including parks, and if the public has used those lands as parks, and believed them to be parks – for decades – how could they be declared NOT parks? This is a scary precedent.

In better news, however, the folks in Queens fighting the erection of a shopping mall in Willets Point, next to Citifield (home stadium of the Mets), successfully used the Public Trust Doctrine in a lawsuit to stop the mall. The land that developers wanted to build on is public land that was specifically slated to be used only for stadium purposes; clearly, a shopping mall is not consistent with that usage. The lower court ruled in favor of the petitioners – Willets Point shop owners, the City Club of New York and State Senator Tony Avella (D-Queens). “Today’s decision sends a message loud and clear — our parks are not for sale,” said State Senator Avella. You can read the full story here.

We wish that Senator Avella’s words were true. Apparently, in the rush toward unfettered development in this city, public lands are, indeed, in jeopardy, and the courts can’t be counted on to side with the public. What’s worse is that, although many elected officials sided with the public in both the NYU case and the Citifield/Willets Point case, the City of New York itself, in both instances, sided with the developers. In the NYU case, the City continued to oppose the public’s stance even when the suit went to the Court of Appeals. Now the question is whether or not the City will be part of the inevitable appeal that developers will file in the Citifield/Willets Point case.

Under the guise of “controlling” City owned property, the City is clearly attempting to violate the Public Trust Doctrine, and is taking away one of the few protections that the public has to save public spaces, parks, and waterways in a time of rampant development. To say that it’s disappointing is an understatement.

Meanwhile, more evidence has arisen that even when developers are ordered to keep their hands off public spaces, they don’t always comply.

In Monday, July 14th’s NY Times column, “The Appraisal,” journalist Matt Chaban uncovered how Donald Trump is now selling Trump wares in a part of his Trump Tower in Manhattan that is supposed to be a dedicated public space. Mr. Chaban explains that, as part of a deal to let developers build larger buildings back in 1961, the City required that a certain amount of the developed space be open to the public. If Trump is in violation of his deal, I wonder how many other developers have done the same. Advocates have tried for years, to get the Trump situation fixed, but clearly, there is no real enforcement against these kinds of encroachments onto public spaces. Trump was fined $2500 for the infringement back in 2008 (a trifling price for Trump), but no other action ensued. You can read Chaban’s excellent piece here.

What does this all mean? I think it’s clear that public spaces are increasingly up for grabs. This is especially true now, when developments – mostly for the wealthy – are overtaking just about every neighborhood in the City. It’s also obvious that the City is clearly disinterested in angering developers, since the City is hoping it can persuade developers to build more affordable housing. (And that’s a subject for another day…)

While, of course, all developments aren’t bad, this slow erosion of the Public Trust Doctrine – with the City’s hearty assent – coupled with little or no enforcement when developers fail to comply with public space agreements, potentially adds up to fewer parks, gardens, and green and open spaces for the people of New York City. In a city where developments are rising higher and higher, blocking out the sun and dwarfing other buildings, and where the ratio of open space to people is among the worst of America’s big cities – 4.6 acres per 1,000 residents (Trust for Public Land 2014 City Park Facts), we can ill afford to let this trend continue.

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