May 18, 2015

If it looks like a park, and people sit in it like a park...

"[New York state's highest court] is making a big mistake even hearing the crazy anti-NYU lawsuit to designate strips of village streets as parkland," says The Daily News.
Hoping to block development, opponents focused on four strips of land... Owned by the city Department of Transportation... DOT let the Parks Department manage the properties on the condition that DOT could reclaim them. Now, the city plans to give NYU use of the strips to get into and out of the construction site — then rehabilitate them with full park designation.

Here is where the opponents’ loony claims enter the picture. They say that, because the land looks like a park, and because people like to sit on the benches, it became a park with the full legal protections afforded to parkland. Although DOT holds title, although the law classifies the strips as streets, although the city repeatedly refused requests to convert them formally into parkland, the opponents say the parcels became parks simply because dogwalkers cleaned up after their animals there.

A unanimous Manhattan Appellate Division threw out the case by affirming that a property owner cannot lose control over land just because someone else likes to relax on it. Unbelievably, the Court of Appeals saw grounds to question such common sense.
Loony claims?

15 comments:

rhhardin said...

Isn't that just adverse possession?

The encroacher gains ownership after long enough.

rehajm said...

Loony claims? If a loon claims it you won't won't be able to do anything there ever.

Tank said...

@rh

Adverse possession must be adverse.

virgil xenophon said...

This has some echoes of the techniques Robert Moses used (described in Caro's ground-breaking work "The Power Broker") in which Moses managed to get many thru-ways designated "Park-ways" and gain control of much of city development/expansion because they ran thru city parks and were seen/justified as extensions of the Parks (over which Moses held domain and absolute power as Parks commissioner.)

Michael McClain said...

Squatting. Simple observation not requiring years in a law school.

Xmas said...

Frame this in Kelo terms: Designating the strips of land as parks increase the property values and overall economic value of the area. Turning the parks into access ways for a construction project that will take private, economically productive land and give it to a private, non-profit institution that does not pay taxes would not be in the best interest of the city.

paminwi said...

This reminds me of a similar situation in Madison. A developer let the community use a space as a community garden for years as he was holding the land to develop when the time was right. He got all the requisite zoning in place when the time came (if you live in Madison you know that in and of itself can be challenging). Then told the community garden folks they were out of luck the next planting season. "No, it's a garden, you can't do this. We've had these gardens for years. Etc, etc., etc."
He got his land back but not without a lot of weeping and gnashing of teeth.

And besides, just because your dog shits somewhere regularly does not mean it's park.

Abdul Abulbul Amir said...

It's called adverse possession IIRC.

Aussie Pundit said...

Unfortunately actions like this discourage landholders from allowing land to 'temporarily' be used as parkland.

Put up meshwire if you want to develop it in the future.

Pettifogger said...

Tank is correct t. Adverse possession must be adverse. Aussie Pundit is also correct about the incentives arising from saying the land magically became a park.

I don't know a thing about NY law, but in Texas limitations does not run against the sovereign or its political subdivisions.

Even as to private parties, I am familiar with more than one situation in which a private land owners let's the public use property by written agreement with the city. One day a year or so the owner closes off public access as an assertion of dominion. Pulling the rug out from under such landowners would ultimately hurt the public.

Pettifogger said...

Aargh! The apostrophe in "lets" is an artifact of autocorrect.

Michael K said...

Would this qualify as "adverse possession ?"

Michael K said...

Ooops. Missed the earlier comments on that.

tim maguire said...

Just to keep the sub-thread going, there is no agreement in the courts as to what "adverse" means in this context. To be safe, the DOT would have to have have given actual permission.

On another note, NYU is a blight on lower Manhattan, a bad neighbor, and destructive member of the community. A lot of people will oppose its growth plans just for the sake of giving the administration a headache.

Sayyid said...

The "law school law" (i.e., the view sufficiently dominant that it can be assumed to be true in any hypothetical jurisdiction used in an exam) of adverse possession, at least where I attended, was that adverse possession cannot be used against the government.

So either that was wrong, or New York is an extreme outlier, or the Court of Appeals was indeed questioning the legal equivalent of common sense.