Urban Parks and the Public Trust Doctrine: A Pending New York Lawsuit and Its Implications

by Joel Mintz

April 22, 2015

Urban parks are a much-prized resource. They provide city dwellers with safe places to relax, walk their dogs, supervise their children at play, plant gardens, contemplate nature, pursue recreational activities, and escape the multiple stresses of urban life. At the same time, however, particularly in prosperous cities where open land is scarce and real estate values are high and growing ever-higher, some urban parks are under threat. Where they feel they can find legal avenues to do so, developers who wish to acquire land on which to construct new structures for private use often target parcels of parkland for purchased and development.

The conflicts and controversies that surround urban parks are epitomized by a legal dispute now pending before the New York Court of Appeals. The case, Glick v. Harvey, involves an effort by New York University to expand its current facilities in Greenwich Village onto three parcels of land in Lower Manhattan that have been used as park spaces, under the oversight of the City’s Department of Parks, for several decades. Although the parcels in question were never formally dedicated as parkland, New York City invested large sums of money to improve and manage them, and Parks Department signs and/or insignia were used to identify each of them.

At the trial court level, the court found that all three parcels had been dedicated as parkland “by implication.” As a result, the trial court ruled, the land in question is protected by New York’s public trust doctrine. This important principle provides that parkland and other property is held “in trust” by its municipal custodians for the benefit of the public. New York City could thus not allow the land to be used for the NYU project without the approval of the New York State Legislature.

However, an intermediate appellate court, the Appellate Division of the New York Supreme Court, reversed the trial court’s decision. Notwithstanding compelling evidence to the contrary, the Appellate Division held that the plaintiffs who had challenged the destruction of the parks had failed to demonstrate that the City’s actions manifested an intent to dedicate any of the parcels at issue as public parkland.

 Earlier this month a group of environmental law professors—which included several CPR scholars like me—signed their names to an amicus curiae brief to New York’s highest court urging reversal of the Appellate Division’s flawed ruled. Citing numerous judicial precedents, our brief explains that both the doctrine of implied dedication and the public trust doctrine are sound and long-recognized common law principles. We then argue that both of those doctrines squarely apply to the facts of the Glick case. Since the parcels at issue have been used for decades for the kinds of recreational purposes that parks traditionally provide, under the auspices of the New York City Parks Department, our brief contends that they have clearly been dedicated by implication under the common law. As such, we assert, they are fully entitled to the protections afforded by the judicially fashioned public trust doctrine.

The final outcome of Glick v. Harvey remains to be determined. Clearly, however, the decision of the New York Court of Appeals in this significant case will have a profound effect--both on the lives of the people who use the parks in question and on the vitality of the public trust doctrine as a safeguard against abuses of governmental power that betray crucial public interests and values.

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Also from Joel Mintz

Joel A. Mintz is a tenured full professor at Nova Southeastern University Law Center in Fort Lauderdale, Florida.

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