In the latest installment of the ongoing struggle against NYU’s huge expansion plan, the State’s highest court, the New York State Court of Appeals, has agreed to hear a case that was filed by petitioners in mid-November regarding public parkland. The lawsuit has passed through two lower courts, with differing results. Those following the dispute, especially park advocates, are awaiting a verdict that could have massive ramifications on the way that the City and the State deal with public parks in the future.

On October 14th, the Appellate Division’s First Department overturned a lower court’s decision that would have spared three parks—Mercer Playground, LaGuardia Park and LaGuardia Corner Gardens—from destruction under NYU’s current expansion plan. According to the lower court’s ruling, all three strips are public parks, and therefore entitled to protection, since the public has been using them as parks for many years, making them “implied” parkland, with the City funding, labeling and maintaining them as parks.

NYU and the City counter-argued that those parks aren’t really parks, since they were never “mapped” as parks (a bureaucratic technicality), and are nominally overseen by the City’s Department of Transportation. The First Department’s decision would allow NYU to raze those treasured parks to make way for its vast expansion plan, and set a precedent that could potentially threaten countless public parks throughout the City and the State.

Petitioners, NYU Faculty Against the Sexton Plan, Greenwich Village Society for Historic Preservation, Historic Districts Council, Washington Square Village Tenants’ Association, East Village Community Coalition, Friends of Petrosino Square, LaGuardia Corner Gardens, Inc., Lower Manhattan Neighbors’ Organization, SoHo Alliance, Bowery Alliance of Neighbors, NoHo Neighborhood Association, Assembly Member Deborah Glick and 10 other individuals, are represented on a pro bono basis by the law firm Gibson Dunn & Crutcher, with Randy Mastro as lead attorney.

Their motion papers make clear that “the First Department’s decision disregarded well-established common law principles for determining when municipal land has been impliedly dedicated for parks usage. In recognition of the unique value that public parks hold for children, families, and communities, the Public Trust Doctrine accords parkland special protection.”

The petitioners are asking the Court of Appeals to consider two issues: that the First Department’s decision actually conflicts with prior appellate court decisions, and prior decisions by the Court of Appeals itself, about this kind of “implied” parkland, and that the First Department’s decision, if left intact, will have the effect of abolishing implied dedication—a consequence with widespread negative effects, not just in New York City, but throughout the State.

Parks and open spaces are protected by the Public Trust Doctrine, which maintains that the government holds the titles to certain waters and lands in trust for the people. 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 was not done in the case of the Village parks that NYU wants to destroy for its ill-advised expansion plan. The First Department’s decision flies in the face of this doctrine and of its own decisions, and would imperil all kinds of public and green spaces throughout the state; it would leave ordinary New Yorkers with no protection against the removal and abuse of open spaces and parks for development.