N.Y.U. to appeal superblocks decision as Johnson praises judge’s ruling
- Melissa Mark-Viverito, left, with her City Council supporters — including Corey Johnson, rear right, and Ydanis Rodriguez, front right — marched toward City Hall on Jan. 8, chanting, “Si, Se Puede!” (“Yes, We Can!”) and “Treinta Y Uno!” (“31!” as in the number of votes she had secured), before she was sworn in as the new Council speaker. Photo by Tequila Minsky
By LINCOLN ANDERSON | ORIGINALLY PUBLISHED JAN. 10, 2014 | After initially saying last week’s stunning legal setback on its South Village development plans was “very positive for N.Y.U.,” the university now plans to challenge the court decision.
Meanwhile, the office of City Councilmember Margaret Chin — whose district contains the superblocks, where N.Y.U. hopes to build — this week offered a statement indicating that, despite the judge’s unequivocal verdict, they still support the entire project going forward.
Corey Johnson — who succeeded Christine Quinn in the Council — is wholeheartedly championing Mills’s decision, declaring that it calls into question the entire “N.Y.U. 2031″ plan.
And new Manhattan Borough President Gale Brewer said the ruling “has the potential to change the project significantly.”
Last Friday, Crain’s New York Business reported that New York University will appeal Judge Donna Mills’s Jan. 7 ruling, in which she agreed with a community lawsuit’s contention that several open-space strips on the university’s two South Village superblocks are indeed parks. Mills said the park strips cannot be used for construction purposes unless the state Legislature votes to “alienate” them — meaning to remove them from being public parkland.
Although the city and N.Y.U. argued the strips are technically under the Department of Transportation’s jurisdiction, the properties have been used as parks for decades, and there has never been any plan to use them as actual streets. Mills agreed with the plaintiffs’ argument that the parcels — which sport official Parks Department signage — are implicitly parks.
“We are appealing because we disagree with the court’s designation of three of the strips as ‘implied parkland,’ ” N.Y.U. spokesperson John Beckman told Crain’s. He reiterated the university’s claim that Mills’s decision still allows the university to proceed with the first part of its proposal — the 1-million-square-foot, mixed-use “Zipper Building.” A spokesperson said N.Y.U. would not be commenting further, for now, beyond the Crain’s article.
Mills’s ruling was in response to a landmark lawsuit filed by a unique coalition including dozens of local residents and community groups, plus N.Y.U. faculty members, Assemblymember Deborah Glick and the Greenwich Village Society for Historic Preservation.
Jim Walden, who along with Randy Mastro, both of the law firm Gibson Dunn, argued the case for the plaintiffs, said N.Y.U. is wrong to think it can now proceed with just half of the 2-million-square-foot 2031 plan while the status of the rest of the project is in doubt.
Walden gave the example of whether a project that was approved because it had an affordable-housing component would be allowed to go forward if the affordable housing were later removed.
“It would be a terrible precedent,” Walden told The Villager last Friday, “if a developer were permitted to proceed with a development plan after part of it was ruled to be illegal. Can you imagine if variances were granted and deed restrictions lifted by the City Planning Commission and City Council specifically based on the inclusion of affordable housing in a development plan, and, upon challenge in the courts, only the affordable-housing component was determined to violate some law? Would the commission and City Council be satisfied with a developer who was determined to charge ahead? I doubt it.
“Because the City Planning Commission and City Council approvals in this matter were based on a plan now declared illegal in part, the approvals themselves must be null,” Walden asserted.
“We are hopeful,” the attorney concluded, “that, rather than having this dispute fester in the courts toward an inevitable result given the clarity of the court’s ruling on parkland protection, N.Y.U. will come together with its faculty, the community, the new borough president, the new City Council speaker and the new administration to explore other alternatives.”
The community plaintiffs’ lawsuit was filed against the city and state. Since N.Y.U. was central to the case, it joined as a so-called “necessary party” in defending against the suit.
According to a source, N.Y.U. can appeal the ruling on its own.
However, asked if the city — now under a new mayoral administration and with a new City Council speaker — would join N.Y.U.’s appeal, a Law Department spokesperson said it’s not clear yet.
Chris Reo, lead attorney of the Law Department’s Environmental Law Division, told The Villager on Friday, “We are still continuing to review the decision.”
Assemblymember Glick said of N.Y.U.’s plans to challenge Mills’s ruling, “Well, that’s not surprising, but I believe that the ruling was appropriate and will be upheld on appeal. And I’m confident that the land grab of parkland will be rejected once again.”
Andrew Berman, executive director of G.V.S.H.P., said of the university’s latest move, “It’s ironic because when the decision came down, N.Y.U. tried to spin it as an affirmation of their position and that it was a good thing for the university. But, obviously, their plan to appeal is an admission that the decision was a defeat and a rebuke of the plan.”
Mills, however, did rule that the strip with the Mercer-Houston Dog Run (plus the sunken playground and seating area that N.Y.U. has failed to maintain and which are fenced off) is not a park because it lacks official Parks Department signage and because N.Y.U., not Parks, has maintained it (well, at least the dog run).
N.Y.U. contends this means that the university can proceed with the Zipper Building — which would sit on part of this open-space strip, which N.Y.U. would purchase from the city.
Berman would not tip his hand if the plaintiffs intend to challenge Mills’s decision on this particular open-space strip.
“We’re reviewing all legal options available to us,” he said.
Meanwhile, new Councilmember Johnson — who succeeded Quinn in representing the Third District — hailed Mills’s ruling on what he, too, like Glick, called N.Y.U.’s “land grab.” And, in fact, he said it now casts the whole 2031 plan into doubt. Quinn, as the Council’s powerful speaker, supported the N.Y.U. plan, and with Chin, as the purported lead negotiator dealing with the university, pushed it through the Council to approval.
“I applaud State Supreme Court Justice Mills’s decision striking down key parts of the N.Y.U. expansion rezoning,” Johnson said. “I agree with the determination that the public park strips on Mercer St. and LaGuardia Place were alienated [removed as public parks] without approval from the state Legislature. This decision calls into question the entire N.Y.U. plan — including the proposed plans for the superblocks, as well as the Zipper Building. N.Y.U. has the right to appeal the decision, but it is my hope that N.Y.U. will not appeal and that the city explores whether or not this project should go back to the drawing board and start over.”
When she was still a councilmember, Brewer voted for the N.Y.U. 2031 project — though she admitted to Villager photographer Tequila Minsky on the floor of the Council Chambers right before the vote, that she was “doing it for Margaret [Chin].”
Asked for comment this week on Mills’s decision, Brewer broadly praised it.
“The judge’s ruling has the potential to change the project significantly, and my office is closely monitoring the case,” Brewer said. “I am particularly pleased that the judge ruled in favor of retaining publicly available open space. Protecting open space has long been a priority of mine, and I will continue to work hard on this issue as borough president.”
Meanwhile, Chinʼs office, this Tuesday, offered The Villager an expanded statement on Millsʼs decision.
Following Mills’s ruling, Chin on Jan. 9 issued a brief initial statement to The Villager.
“Preserving green space is one of my utmost priorities,” Chin said. “I am glad that [Justice Mills’s] decision creates the opportunity for the LaGuardia Corner Garden and Time Landscape to enjoy the same protections as other parks in our community. Throughout the N.Y.U. 2031 negotiations, I worked to ensure that any construction is respectful of the residents that call this neighborhood home — and minimizing impacts on community green space was and continues to be an essential part of that goal.”
(The Time Landscape is the long, fenced-in plot south of the LaGuardia Corner Gardens, and is intended to represent Manhattan’s pre-Colonial foliage in its natural state. However, N.Y.U. has never expressed any interest in using the Time Landscape for its development plans.)
The Villager, in turn, asked Chin, specifically, if she was equally glad that the open-space strips on the north superblock (which include Mercer Playground and LaGuardia Park) will now — due to Mills’s ruling — likewise enjoy park protections. N.Y.U. hoped to use these strips to help construct “infill” buildings for its 2031 project, but now cannot based on Mills’s decision.
This Tuesday, “Chin’s office” provided an additional statement indicating they still support the N.Y.U development plan in its entirety for both superblocks. In the Jan. 14 e-mail, Chin’s director of communications, Amy Varghese, specifically said the statement is “attributable to the office of Council Member Margaret Chin.” (On the other hand, the e-mailed statement sent the previous week was described in the message as “CM Chin’s quote.” Varghese did not respond to a request for clarification on why Chin did not want to be quoted directly in the most recent statement.)
At any rate, in the new statement, “Chin’s office” said: “The City Council approved the N.Y.U. 2031 plan with legislative action to ensure that the north block parcels would obtain the same protections as mapped parkland, and has been working with the Department of Parks and Recreation and the Department of Transportation to bring the remaining parcels under Parks’ protection as well. Residents, Community Board 2, neighborhood stakeholders and Councilmember Chin’s office worked together to include provisions in the N.Y.U. 2031 plan to reduce impacts on community green space in the interim, including staging construction away from these strips and requiring the use of minimally invasive construction materials. The court’s decision coincides with our continued efforts to minimize construction impacts on green space in our community.”
However, the statement does not say that Chin and/or her office no longer support giving N.Y.U. 20-year easements for use of the superblock strips during the construction, which is what the City Council approved in 2012. Under that agreement, only after the 20 years were up, would the two strips on the northern block formally be transferred to the Parks Department.
In 2012, Community Board 2 passed an “absolute NO” resolution against the N.Y.U. 2031 plan, recommending denial of the entire thing.
On Tuesday, David Gruber, chairperson of Community Board 2, said, “It’s interesting that N.Y.U. is appealing a court decision that mirrors and agrees with the community board’s resolution, as well as the position of a plethora of individuals, elected officials, community-based organizations and the ever-expanding N.Y.U. Faculty Against the Sexton Plan group, and still claims to be a good neighbor and friend. It’s time that N.Y.U. realizes that it’s a part of the Village community and not the reverse.”