New York State’s Court of Appeals is scheduled to hear a challenge today to New York University’s plan to build new academic buildings. The outcome could jeopardize the way open space is used throughout the state.
The challenge centers on four narrow strips of city-owned land now functioning unofficially as parks that the city would allow N.Y.U. to use for construction access to build four towers in its Greenwich Village neighborhood.
Opponents argue that these strips are, in effect, parks, and that the city cannot legally dispose of parkland without permission from the State Legislature. But these strips are not official parks and never have been, even though the city has allowed them to be used temporarily as parks and open space.
The challengers’ argument is nothing other than an effort to slow down or stop the N.Y.U. project. But the outcome has implications beyond N.Y.U. If the court rules for the opponents, it would threaten open spaces in communities throughout the state that are now used for community gardens and green and recreational space but are not officially designated as parks.
I’m talking about parcels of government-owned open land that municipalities might ultimately need for other purposes — for a school, perhaps, or for affordable housing or some other local priority. In essence, municipalities hold these spaces in reserve for when or if they are needed.
But if the Court of Appeals opens the way for such spaces to become parks by implication, based on their temporary use, then municipalities are going to be far less likely to open them up to the public in the first place.
The self-styled park protectors are actually threatening green and open spaces around the state.
In the N.Y.U. case, the parcels in question were never designated by the city as parks and in fact are under the jurisdiction of the city’s Department of Transportation. They had been intended as streets that would connect to the long-dead plan for a Lower Manhattan Highway.
But the challengers argue that they are parks because they have been used for years for parklike purposes — as a playground, a community garden, a tiny park and a dog run. They are parks by implication, according to the N.Y.U. opponents. Parks by default.
They aren’t.
There are a lot of properties like the ones at issue in this case in the city’s portfolio of open space. In fact, many of the approximately 4,000 properties managed by the city’s Department of Parks and Recreation are not official parkland. Many are city-owned properties under the jurisdiction of other agencies — transportation, administrative services, education or housing. They include several hundred GreenThumb community gardens and properties in the Greenstreets program.
The city could have simply let these spaces — a lot, a sidewalk, an unused street — remain as eyesores. Instead, New York and other communities have sought to beautify such spaces, or allowed them to be used temporarily for recreation or other outdoor uses.
But the key word is “temporary.” Municipalities allow these uses with the understanding that the land may later be used for other priorities.
Over the 16 years I served as either the Manhattan parks commissioner or the city’s parks commissioner, we received requests from people to designate as parklands the strips of land at the center of the N.Y.U. litigation.
Each time, we said “no.”
Every year, new parks are created in New York by design. But for over 150 years, the law in New York State has held that property not designated as parkland can be deemed to be implied parkland by unequivocal and unmistakable intention.
That means the owner — public or private — must clearly have intended the property to become parkland, even if the official designation had not occurred. Since a piece of parkland is, essentially, parkland forever and cannot thereafter be used for other purposes except through a complex legislative process, the standard for becoming parkland by implication was carefully set.
The Appellate Division of the State Supreme Court concluded that opponents of the N.Y.U. plan had “failed to meet their burden of showing 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.”
Were the Court of Appeals to overturn that decision, not only New York City but town and city governments throughout the state would be confronted with a dilemma: Give up much-cherished temporary uses of municipal land for community gardens or recreational space, or lose the option of using these lands in the future for other important municipal needs.
Municipal governments, concerned that they will need those properties, will logically choose the former course, rather than lose control over the use of the land.
I helped to create more than 800 acres of new parks in New York City when I worked in the parks department. I’m all for more parks in this city and others. And the N.Y.U. plan, in fact, would lead to the creation of great new parks on the school’s campus, open to all and for the benefit of all city residents, along with the permanent protection of the strips of land at issue in this litigation.
For more than a century and a half, New York State has had a clear legal standard for implied parkland. It has functioned well, and allowed municipalities to create more green spaces and recreational spaces for their citizens with the security that they could use it for some other pressing municipal need in the future.
Every city is a mix of the permanent and the ephemeral, infrastructure and human interaction, buildings and green oases. A change to the implied parkland standard would imperil some of the green spaces we love best in cities.
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