A recent ruling by the Appellate Division, Second Department, Matter of Coney Island Boardwalk Community Gardens v City of New York, concerned the fate of a parcel of land located at the Coney Island boardwalk. That parcel was owned by the City of New York and had been used for several years as a community garden. When the City decided it wanted the site to be redeveloped as an amphitheater, the community gardeners objected. They claimed the site had been impliedly dedicated to parkland by the community garden use and could not be alienated to use as an amphitheater without the express consent of the state legislature. The Court disagreed, allowing the City to redevelop the site without the added burden of obtaining legislative approval.

The Public Trust Doctrine

As explained in a prior posting by Anthony Guardino, when a municipality owns land for public use as a park, the municipality holds that land “in trust for that purpose” and cannot convey that land without the approval of the state legislature. This is true regardless of whether the land is officially or impliedly dedicated as a park. While it is not difficult to establish that the public trust doctrine applies in the case of an officially dedicated park, it is not so easy when no such official dedication exists. That was the problem faced by the community gardeners, a problem they were unable to overcome.

The Boardwalk Decision

The parcel at the center of this dispute was allowed to be used as a community garden through a series of license agreements between 1997 and 2004, as part of the City’s “GreenThumb program.” As is typical of license agreements, these agreements “were terminable at will at the City’s sole discretion.” The first termination occurred in 1999, when the City was going to develop the parcel into a parking lot for the Brooklyn Cyclones baseball stadium. A separate prior action resulted in the City being temporarily restrained from interfering with all of the GreenThumb gardens, resulting in the City executing new licenses in 2000 and 2003 for the garden. That action was settled, and the settlement agreement expressly noted that this particular parcel was not designated parkland. In August 2004, the City terminated the license, and the community garden was relocated to a different parcel in accordance with the terms of the settlement agreement.

The lot was not converted to a parking lot for the stadium. Rather, the City engaged in developing a series of strategic plans over the next decade to revitalize the Coney Island Boardwalk. While the City pondered the fate of the area, community members revived the garden on the parcel without the consent of the City.

In 2013, the City finally decided to adopt a plan for an amphitheater for the parcel and other nearby parcels. The unlicensed garden was destroyed during the development of the lots.

The community gardeners brought a hybrid proceeding, seeking to invalidate the parcel’s conversion to an amphitheater. They also sought a declaratory judgment to have the parcel declared parkland and the City’ actions as violating the public trust doctrine.

Unfortunately for the community gardeners, the appellate court, (as well as the trial court), sided with the City. The appellate court discussed the requirements to establish an implied dedication to parkland. Parties seeking to challenge the alienation of land they claim is subject to implied dedication to parkland must show (1) a clear and unmistakable intent to use the land for public use, and (2) the public acceptance of that land for a public use. The appellate court further noted that although this is often a question of fact that must be decided by looking at the owner’s acts and declarations about the parcel, if those acts are equivocal or plainly do not show the “intention to permanently abandon the property to the use of the public,” an implied dedication will not be established.

Applying those principles to the facts, the appellate court found the City had not unequivocally intended to dedicate the parcel as parkland. On the contrary, the evidence showed the City allowed the community garden to exist only on a temporary basis and intended to develop the parcel for other uses. The fact that the City’s Department of Parks and Recreation exercised management over the lot, which was found to be temporary and provisional, did not raise a triable issue.