TO BE SUBMITTED Court of Appeals State of New York IN RE DEBORAH GLICK, et al., Petitioner-Respondents-Appellants, v. ROSE HARVEY, etc., et al., Respondents, VERONICA M. WHITE, et al., ‘RespondentsAppellants-Respondents, NEW YORK UNIVERSITY, As a Necessary Third-Party, Appellant-Respondent, BRIEF OF THE NEW YORK STATE CONFERENCE OF MAYORS AND MUNICIPAL OFFICIALS, THE ASSOCIATION OF TOWNS OF THE STATE OF NEW YORK, THE CITY OF ROCHESTER, AND THE CITY OF SYRACUSE AS AMICI CURIAE NEW YORK STATE CONFERENCE OF THE ASSOCIATION OF TOWNS OF THE MAYORS & MUNICIPAL OFFICIALS STATE OF NEW YORK 119 Washington Avenue, 2™ Floor 150 State St Albany, New York 12210 Albany, New York 12207 Telephone: (518) 463-1185 ‘Telephone: (518) 465-7933 Wade Beltramo, General Counsel Sarah Brancatella, Counsel wade@nycom.org sbrancatella@nytowns.org On Behalf of the CITY OF ROCHESTER On Behalf of the CITY OF SYRACUSE, APL-2015-00053 New York County Clerk’s Index No. 103844/12TABLE OF TABLE OF CONTENTS .. TABLE OF AUTHORITIES..... PRELIMINARY STATEMENT INTEREST OF THE AMICI CURIAE. STATEMENT OF FACTS. ARGUMENT... POINT I PUBLIC POLICY DEMANDS THAT MUNICIPALITIES BE ALLOWED TO TEMPORARILY USE LAND FOR PARK PURPOSES WITHOUT MAKING THE LAND INALIENABLE... : : POINT II. THE INSTALLATION OF PARK FEATURES, INFRASTRUCTURE, AND SIGNAGE ALONE SHOULD NOT RESULT IN THE EXPRESS OR IMPLIED DEDICATION OF PARKLAND WHEN THE LOCAL GOVERNMENT HAS OTHERWISE INDICATED THAT THE LAND IS NOT BEING PERMANENTLY DEDICATED AS PARKLAND. con 15 CONCLUSION ......TABLE OF AUTHORITIES Cases Glick v, Harvey, 121 A.D.3d 498, 499 (Ist Dept. 2014). Kenny v, Village of Garden City, 289 A.D.2d 534, 534 (2d Dept. 2001)..... New York State Assemblyman v. City of New York, 85 A.D.3d 429 (Ist Dept. 2011) Pearlman v. Anderson, 62 Mise. 2d 24, 26 (Sup. Ct.) aff'd, 35 A.D.2d 544 (1970)... iverview Partners, LP v. City of Peekskill, 273 A.D.2d 455, 455-56 (2d Dept. 2000) Other Authorities “fn Community Gardens, A New Weed?”, The New York Times, February 11, 2015, ‘www.nytimes.com/2015/02/12/garden/in-community-gardens-a-new-weed html. 13,14 http://syracuselandbank.org/properties.. 13 ‘www.city-buffalo.com/files/1_2_1/ city_departments/real_estate/CommunityGarden.pdf.. www.cityofrochester.gov/ article.aspx?id=8589951709 www. greenthumbnyc.org .... 12 Treatises 11A McQuillin Mun. Corp. § 33:2 (3d ed.)... wlPRELIMINARY STATEMENT ‘The New York State Conference of Mayors and Municipal Officials, Association of Towns of the State of New York, the City of Rochester, and the City of Syracuse respectfully submit this memorandum of law amici curiae in support of the New York City Respondents, who seek a ruling from the Court of Appeals upholding the decision of the Appellate Division, First Department. INTEREST OF THE AMICI CURIAE ‘The Conference of Mayors is @ not-for-profit voluntary membership association whose members include 58 of New York's 62 cities and 523 of the State's 548 villages. Similarly, the Association of Towns is a not-for-profit voluntary membership association whose membership includes almost 900 of the 932 towns in New York State. Collectively, these org: represent the overwhelming majority of municipalities in New York State. ‘The City of Rochester is a Municipal Corporation incorporated in 1834, with a population of approximately 210,000 residents. Through tax foreclosure, strategic acquisitions for blight removal, housing, or economic development, and other means, the City has acquired many vacant lots scattered across the City, most of which it cannot turn around immediately for re-sale or for use in City neighborhood and economic development, road or infrastructure projects. As ofits last inventory in March, the City of Rochester owned 2,453 parcels of vacant land, comprising an aggregate land area of 442 acres, that are not being used for municipal purposes. ‘Where practicable, the City of Rochester wants to encourage the temporary use ofits vacant lots for the recreational and aesthetic enjoyment of the neighbors and to reduce the blighting effects of vacancy until they can be redeveloped for another purpose. For example, so far this year, the City’s real estate office has issued 64 garden permits, which are essentially seasonal license agreements for private users to use City land. In addition to those 64 permits, there are 38 7community gardens that are known to the City. However, the City Administration has been quite circumspect on the garden permit program and has refrained from allowing or providing for other temporary beneficial uses of vacant lots for fear that the City might inadvertently hit an invisible {tip wire that establishes permanently inalienable parkland by implication. Ifthe Court of Appeals overturns the First Department's decision, the City’s garden permit program will be jeopardized and the City will be prevented from promoting other publicly beneficial temporary uses of its vacant land. ‘The City of Syracuse is a Municipal Corporation Incorporated in 1848, with a population of approximately 145,000 resid If the Court of Appeals holds that a municipality's temporary use of property as a park, playground, or garden makes that land inalienable, the City of Syracuse would be much more cautious and averse when considering establishing such temporary park, playground, or garden uses, uses which would otherwise beautify, connect, and enrich its communities and neighborhoo Such pause could be deleterious to community prosperity and create unnecessary internal legal hurdles for City employees (e.g., Department of Parks) rationally pursuing their ministerial objectives. ‘The very notion that appointed officials who innocently create a space for the City’s almost 145,000 citizens to recreate could bind the City to such temporary and fleeting uses flies in the face of reasonable governance, municipal autonomy, and progressive public-first policies. ‘A reversal of the Appellate Division's decision would deter any municipal acquisition of land in Syracuse from being used for public use at its outset. In the City of Syracuse, dozens of residential properties are acquired annually, and a decision adverse to the amici could cause such properties to lie fallow, becoming a blight on the community and a liability to the City's constituents.Unless the City of Syracuse can unrestrictedly and without worry of inalienability temporarily establish these properties for the good of the publie while alternative development is later considered for the greater good of our community (e.g., the use of a vacant lot for a community garden), they become a risk not worth investing in. This not only creates a sense of insecurity and safety concems for neighbors of such lots, but the result of temporary uses impliedly becoming inalienable under such a scenario would stifle the economic prosperity of the City, deleting its taxable base and straining the burden on other property owners. ‘This case involves a matter of statewide concern to all cities, towns, and villages. If the “Appellate Division’s decision is reversed, it will not only reduce the number of temporary parks, playgrounds, and gardens that local governments create and allow throughout the State, but it will ‘also negatively impact local governments” long-term, permanent development goals and plans by subjecting them to costly and time-consuming litigation over the issue of inalienability. “The fact that parkland is inalienable presents local government officials with a unique set of challenges, requiring them to be ever vigilant that they do not dedicate parkland, either expressly or implicitly, unless they are certain that parkland is their desired permanent use for the property. Complicating the issue of parkland alienation further is the question of temporary parkland use. ‘This brief argues that public policy demands that local government officials be allowed to temporarily use land for parkland without making the land inalienable, STATEMENT OF FACTS ‘The amici adopt the statement of facts presented by the New York City Respondents.ARGUMENT POINT PUBLIC POLICY DEMANDS THAT MUNICIPALITIES BE ALLOWED TO TEMPORARILY USE LAND FOR PARK PURPOSES WITHOUT MAKING THE LAND INALIENABLE From a public policy standpoint, New York’s municipalities must be allowed to temporarily use municipally-owned property for park purposes without the threat of inalienability. ‘Temporary parks enrich the communities where they are located and make efficacious use of property while keeping the door open for development and economic opportunities. Instituting a rule wherein local officials cannot use and allow residents to use property temporarily for park purposes without that property becoming inalienable would create a system that disincentivizes the creation of temporary public parks to the detriment of the community. Thus, the Conference of Mayors, the Association of Towns, and the Cities of Rochester and Syracuse ask that the Court of Appeals affirm the First Department's decision. Clearly, local officials’ formal and clear declarations to permanently dedicate real property as parkland, such as by acquiring the property “by condemnation solely for public and recreational uses” (Kenny v, Village of Garden City, 289 A.D.2d 534, 534 (2d Dept. 2001)), purchasing property specifically “for park purposes” (see Riverview Partners, LP v. City of Peekskill, 273 A.D.2d 455, 455-56 (2d Dept. 2000), or recording deed restrictions or enacting legislation (see ‘New York State Assemblyman v. City of New York, 85 A.D.3d 429 (1st Dept. 2011)), remove any doubt as to the intent of the local officials, clothing the land in the public trust and making it inalienable. However, absent evidence (a) that the municipality acquired property specifically to be used as parkland or (b) that the officials empowered to dedicate property via legislative enactment 10or administrative action did in fact do so, Courts must determine whether the property was dedicated as parkland by implication. Petitioners argue that because New York City allowed the land in question to be used as parkland for a long, continuous period, the City impliedly dedicated the property as inalienable parkland, The City’s assertions and actions indicate otherwise, however; the facts at bar demonstrate that City only ever intended for the land to be used temporarily for park purposes. ‘The Appellate Division correctly acknowledges that municipal property may be temporarily used for parkland without making it inalienable, noting that “any management of the parcels by the Department of Parks and Recreation was understood to be temporary and provisional, pursuant to revocable permits or licenses.” Glick v. Harvey, 121 A.D.3d 498, 499 (Ast Dept. 2014). ‘The short and long-term health of New York’s communities demands that local governments be allowed to temporarily use municipally-owned land for park purposes without making the land inalienable. Local governments throughout the State of New York currently have thousands of parcels of municipally-owned real property which are not needed for immediate use, When local officials manifest their intent that park use is only to be temporary, such use should not make the land inalienable. To find otherwise would dissuade local officials from allowing ‘municipally-owned land to be used temporarily for park purposes. Certainly, even Petitioners must concede that if the choice had been between (a) having the properties in question used as a playground, park, garden, and dog run for a short period of time or (b) not having those improvements and facilities at all installed for the benefit of the public, the community was better served by the temporary uses. Given the high value New York’s courts and the New York State Legislature have placed on parkland, it strains credulity that New York should uhave a policy in place that serves as a disincentive to create parkland on a temporary basis. In fact, ‘New York’s courts have already recognized this public policy argument: This Court's determination is that 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. This certainly would not be in the public interest. [emphasis added] Pearlman v. Anderson, 62 Misc. 2d 24, 26 (Sup. Ct. afd, 35 A.D.2d 544 (1970) To establish a rule that park uses which local officials design and install with the intention of being temporary nevertheless result in the parkland being inalienable is clearly not in the public interest. Local governments throughout the State of New York currently have thousands of parcels of real property for which they do not have an immediate need or use but which they do not desire to convert into inalienable parkland for any number of reasons. Whether the land is a mapped street, is ideal for a future municipal infrastructure project such as department of public works facilities or a water or wastewater treatment system, or is suited for future private sector development that is currently not viable due to economic conditions, local governments should be allowed to temporarily use such land for park purposes without making the land inalienable until such time as the democratically-clected local officials determine the land should be put to a permanent long-term use. Such temporary park uses and long-term permanent municipal development scenarios are not merely hypothetical. For example, New York City runs its own community garden program called GreenThumb (www.greenthumbnyc.org), which provides programming and support to over 600 community gardens throughout the City, Such gardens are temporary as was recently highlighted in a project involving New York City’s Department of Housing Preservation and Development: Eric Bederman, the press secretary for H.P.D., said in a press statement: “We recognize the value remporary gardens add to our neighborhood, which is why 12there’s a process for groups to use H.P.D. lots until we're ready to build affordable housing,” “Now, the department asserted, gardeners may have to abide by the “interim” part of their agreements, On demand, they would need to vacate their gardens and make way for new housing. “This is not the first time — or the 100th time, probably — that community gardens have faced the risk of losing their land, GreenThumb counts more than 600 community gardens, and almost all of them started out as vacant city lots. In the beginning, these green spaces generally had few official protections. But then no one else wanted them. It was the community gardens, Ms. McPherson said, that ‘made the city’s land worth developing, [emphasis added] “In Community Gardens, A New Weed?,” The New York Times, February 11, 2015, www nytimes.com/2015/02/12/garden/in-community-gardens-a-new-weed.htm! ‘This is not a New York City only practice however. Cities across New York have demolished tens of thousands of vacant and abandoned buildings in recent decades, creating tens of thousands of vacant lots. Instead of leaving these lots vacant to become overgrown with weeds and dumping grounds for trash, municipal officials and residents frequently turn the open space into community gardens or parks. Buffalo (see www.city-buffalo.com/files/1_2_1/ city’ departments/real_estate/CommunityGarden.pdf), Rochester (www-cityofrochester.gov/ article.aspx?id-8589951709), and Syracuse (hitp:/syracuselandbank.org/properties/) are just some of the communities that have established community garden programs for vacant lots. While community gardens and other park-like uses are preferable to weed-infested, trash- strewn vacant lots, the long-term health of these communities frequently demands redevelopment ofthe lots. Invariably, decades of population loss in most of New York’s upstate cities has resulted in a current lack of demand for new housing, making immediately replacing the demolished structures with new, modem buildings impractical. However, local governments long-term redevelopment strategies do not necessarily include permanently using those vacant lots as community gardens or parks 3For example, the City of New York plans to convert the community gardens highlighted in the previously referenced New York Times article into affordable housing: Aziz, Dehkan, the coalition’s executive director, seemed to recognize the new landscape. “The mayor has been working to try to make more affordable housing throughout the city, and it’s certainly something we absolutely agree on,” Mr. Dehkan said. “The membership of New York City Community Garden Coalition: Most of them would qualify for affordable housing.” “In Community Gardens, A New Weed?,” The New York Times, February 11, 2015, www.nytimes.com/2015/02/12/garden/in-community-gardens-a-new-weed.html. If the Court finds that even intentionally temporary use of Jand for park purposes nevertheless makes real property inalienable parkland, many local officials will invariably decline to create temporary parks in order to avoid making the land inalienable, Such an outcome is not unlikely, as the process for obtaining legislative authority to alienate parkland is cumbersome and time-consuming, with no guarantee that the State Legislature will approve the alienation, particularly if the issue is highly politicized. Moreover, even the New York State Legislature has long recognized that the establishment of park uses such as community gardens may be limited in duration and improved by the municipality using municipal resources without making the land inalienable. General Municipal Law § 96. “Municipal community garden activities” provides in relevant part: 1, A municipality is authorized to hold land, however acquired, either in fee or of lesser interest, or by lease, contract or agreement with the owners and to allow same to be used for community gardening under the terms and conditions established in article thirty-cight of the executive law, as applicable, for such period of time and under such further conditions as may be authorized by local law. Such use of land is a valid exercise of municipal powers. A municipality may encourage individuals, community organizations and groups to use vacant lands and municipal facilities for such period of time and under such conditions as the municipality may determine for use in community garden programs, including but not limited to, a condition that users possess liability insurance and accept liability for injury or damage resulting from use of the vacant public land for community gardening purposes. A fee related to preparation of assigned lots may be charged participants. 14ee 3. A municipal corporation may assist the development of a community garden by contributing, or providing at cost, from resources under the control of the ‘municipality, upon agreement with the user of such land as approved pursuant to the local finance law: initial site preparation, including top soil and grading; water systems; perimeter fencing; storage bins or sheds, and other necessary appurtenances or equipment. [emphasis added] In the present case, it seems unlikely that Petitioners would rather have had the parcels in question fenced off or merely maintained as paved lots during the time in question, rather than the used as beneficial parkland. In essence, Petitioners’ argument that parkland is highly prized and imbued with the public trust but that alienable temporary parkland may not be cteated. Such reasoning is inherently contradictory and untenable. POINT IL THE INSTALLATION OF PARK FEATURES, INFRASTRUCTURE, AND SIGNAGE ALONE SHOULD NOT RESULT IN THE EXPRESS OR IMPLIED DEDICATION OF PARKLAND WHEN THE LOCAL GOVERNMENT HAS OTHERWISE INDICATED THAT ‘THE LAND IS NOT BEING PERMANENTLY DEDICATED AS PARKLAND Petitioners’ argument hinges almost entirely on two grounds: (1) that the public was led to believe that the four parcels in question had become dedicated parkland (Petitioner’s Motion for Leave to Appeal, p. 2) and (2) that the park uses were “long and continuous” (Petitioner's Motion for Leave to Appeal, pp. 3, 14, and 15). While such factors are clearly relevant to the determination of implied parkland dedication, they are by no means dispositive of the issue, particularly in light of the City’s other actions which indicated that the park uses were not permanent, and that the City had not relinquished its rights to use the property for non-park purposes in the future. Obviously the City did intend for the public to understand that the parcels were open for their use as parks. Petitioners contend that the infrastructure improvements to the land, the ceremonies opening the property to use by the public for park purposes, and the park signage all amount to a 15dedication of the real property in question as inalienable parkland, Assuming arguendo that local officials may allow land to be temporarily used for park purposes without making it inalienable, it is unclear what Petitioners would have local officials do to create a temporary park use without making it inalienable. Petitioners would have this Court craft a policy whereby local officials may create temporary parks only so long as they are not foo park like, only so long as local officials do not lead “the public to believe” that the land is parkland (Petitioner’s Motion for Leave to Appeal, 2), only so long as local officials do not create an environment that the public would confuse with being a park or at least not a permanent park. Petitioners are unclear as to how such a policy would work. Petitioners fail to offer any guidance as to how the City may manifest its intent to use the disputed property only temporarily for parkland, If the City’s signage had read the “Temporary Mercer Playground,” the “Temporary LaGuardia Park,” the “Temporary LaGuardia Corner Gardens,” and the “Temporary Mercer-Houston Dog Run” would that satisfy Petitioners’ proposed standard? Should the City have periodically closed the parks to the public so that the park use was neither too long nor continuous? Should the City have periodically removed the park features to manifest its intent that the land in question was a mapped street and may at some future date be constructed as a street, only to then reconstruct the park infrastructure for the benefit of the public in the short-term? It seems highly unlikely that Petitioners in particular or supporters of parkland in general would argue that it is better public policy to have temporary parkland periodically closed to the public to make it manifest that it is not permanent parkland, Key to this action and all parkland dedications is that the dedication, whether it be express. or implied, must be made by the public officials empowered to make such dedications, Here, the property in question was a mapped street under the control of the New York City Couneil and the 16New York City Department of Transportation. The City's Parks Department merely provided a maintenance and operations role and had no legal authority to control ownership of the Iand. “Allowing individuals or public officials who have no legal authority over property to determine its dedication as parkland, particularly when the officials who do have such authority over the land have repeatedly refused to dedicate the property as parkland would open up a Pandora’s box of political wrangling and costly litigation. Nonetheless, Petitioners seek to have the Court create a standard for parkland creation that ismore analogous to prescription of municipal land by the public in defiance of the intent or actions of the democratically-elected local government officials. As is noted in McQuillin The Law of ‘Municipal Corporations, the actions of the user of the property are not dispositive of the question of whether parkland is dedicated: Dedication is to be distinguished from prescription in that, in the latter case, a user for a prescribed number of years fixes the right without regard to the intent of the landowner. Conversely, intent on the part of the landowner to transfer the property is critical to a finding of dedication. 11A MeQuillin Mun, Corp. § 33:2 (¢ ed.) Redefining the process of determining implied parkland dedication to focus on the actions and beliefs of the public and users of the park instead of the actions of the democratically-clected officials who have been entrusted as stewards of the municipal property would be an invitation to every individual or minority group who is opposed to a project or government action to claim parkland dedication in an attempt to thwart the project. Invariably, such claims will have to be litigated by New York Courts, costing local and State tax payers dearly and adding to the State's already over-taxed judicial system.CONCLUSION ‘Municipal parkland is an invaluable resource, and its alienation should never be taken lightly, But prohibiting local governments from temporarily using real property for park purposes without making the land inalienable is not in the public’s interest. Where, as here, local officials have manifested an intent that park uses are only intended to be temporary, such land should not be inalienable. For the foregoing reasons, the amici respectfully request that this Court uphold the findings and decision of the Appellate Division, First Department. Dated: Albany, New York April 22, 2015 Respectfully Submitted, Wade Beftramo, General Counsel ‘Sarah Brancaiella, Counsel New York State Conference of Mayors & The Association of Towns of the State of New Municipal Officials York 119 Washington Avenue, 2™' Floor 150 State St Albany, New York 12210 Albany, New York 12207 Telephone: (518) 463-1185 Telephone: (518) 465-7933 wade@nycom.org sbrancatella@nytowns.org On Behalf of the City of Rochester On Behalf of the City of Syracuse 18