OPINION OF THE COURT
Plaintiffs challenge an agreement by the New York City Department of Parks and Recreation to allow the operation of a restaurant in Union Square Park. We conclude that plaintiffs fail to state a claim for a violation of the public trust doctrine and therefore affirm the Appellate Division order dismissing the complaint.
Union Square Park occupies approximately 3.6 acres in Lower Manhattan. Dating back to the early 1800s, the park has been the site of various public gatherings, protests and marches, and was designated as a national historic landmark by the United States Department of the Interior. A colonnaded pavilion, the structure at issue on this appeal, stands in the paved plaza at the northern end of the park. In 2008, as part of a citywide restoration initiative, the New York City Department of Parks and Recreation (the Department) renovated portions of the park, including the pavilion area. The project included the future use of the pavilion as a restaurant to replace Luna Park, a café that had operated in a space adjacent to the pavilion from 1994 until 2007.
In 2012, the Department executed a written "License Agreement" with Chef Driven Market, LLC (CDM), which permitted CDM to operate a seasonal restaurant in the pavilion for a term of 15 years. The restaurant would be open from mid-April to mid-October each year, from 7:00 a.m. until midnight on a daily basis. In return, CDM agreed to pay the City an annual license fee of $300,000 in the first year (increasing to about $450,000 in the final year) or 10% of annual gross receipts, whichever amount was greater. The agreement further obligated CDM to outlay at least $700,000 in specified capital improvements.
The Department retained extensive control over the daily operations of the restaurant under the terms of the agreement. For example, the Department "must approve in advance and in writing all plans, schedules, services, hours of operation, menu items and prices as well as all changes to services, menu items,
Plaintiffs Union Square Park Community Coalition, Inc. and several individuals brought this action against the Department, its Commissioner, the City of New York and CDM (collectively, the Department) seeking a declaratory judgment and injunctive relief restraining the Department from altering the park pavilion to accommodate the restaurant under the public trust doctrine. As relevant to this appeal, plaintiffs asserted two claims: (1) the restaurant constituted a nonpark purpose and was unlawful absent legislative approval and (2) the agreement between the Department and CDM constituted a lease, not a license, thereby amounting to an improper alienation of parkland.
Under the public trust doctrine, dedicated parkland cannot be converted to a nonpark purpose for an extended period of time absent the approval of the State Legislature (see Friends of Van Cortlandt Park v City of New York, 95 N.Y.2d 623, 630 ).
Plaintiffs' position, however, is inconsistent with 795 Fifth Ave. Corp. v City of New York (15 N.Y.2d 221 ), our most recent precedent involving a challenge to the placement of a restaurant in a city park under the public trust doctrine. In that case, plaintiffs brought suit to enjoin construction of a restaurant in Central Park, asserting that the public trust doctrine would be violated because the new structure would result in the destruction of 22,000 acres of rural area; there were numerous eating and drinking establishments in the vicinity; the corner was already heavily congested; and the proposed restaurant would principally serve pedestrians entering from the adjacent street rather than park patrons. Following a bench trial, the trial court rejected plaintiffs' claims and concluded that the restaurant served a legitimate park purpose. In reaching its decision, the trial court relied on a number of considerations, including that the undeveloped area was unused and
When 795 Fifth Ave. reached us on appeal, we affirmed, but on broader grounds. We began by acknowledging that the "Park Commissioner is vested by law with broad powers for the maintenance and improvement of the city's parks" and that judicial interference would be "justified only when a total lack of power is shown" (15 NY2d at 225 [internal quotation marks and citation omitted]). In other words, although it is for the courts to determine what is and is not a park purpose, we recognized that the Commissioner enjoys broad discretion to choose among alternative valid park purposes. Observing that restaurants have long been operated in public parks, we rejected plaintiffs' public trust claim, holding that they could show only a "difference of opinion" as to the best way to use the park space and that this "mere difference of opinion [was] not a demonstration of illegality" (id.). Without showing the "type and location of the restaurant to be unlawful," we concluded, plaintiffs could not prevail (id. at 226). We therefore found it unnecessary to consider the myriad factors the trial court had relied upon, including whether the building was well-designed and would replace a neglected area of the park.
Although there are significant differences in the size, characteristics and uses of Central Park and Union Square Park, we perceive no meaningful distinction between 795 Fifth Ave. and the case before us in the application of the public trust doctrine. Plaintiffs ask us to apply a flexible standard that takes into consideration a number of fact-specific criteria in deciding whether a given restaurant serves a park purpose, yet we eschewed that approach in 795 Fifth Ave. Even accepting as true the allegations in plaintiffs' complaint, their claims are substantially similar to the ones we found insufficient in 795 Fifth Ave. Plaintiffs have a different view of the best use of Union Square Park and its pavilion in particular, but this difference of opinion, without more, does not demonstrate the illegality of the Department's plan. Put differently, plaintiffs have not demonstrated that the "type and location" of the restaurant are unlawful. While we leave open the possibility that a particular restaurant might not serve a park purpose in a future case, we conclude that the restaurant here does not run afoul of the public trust doctrine for lack of a park purpose.
We have stated that parkland cannot be leased, even for a park purpose, absent legislative approval (see Van Cortlandt Park, 95 NY2d at 630; see also General City Law § 20  [providing that "the rights of a city in and to its ... parks ... are hereby declared to be inalienable"]). The Department may, however, execute a license or permit for a park purpose without violating the public trust doctrine (see Miller v City of New York, 15 N.Y.2d 34, 37  ["Since the property was as a park impressed with a trust for the public it could not without legislative sanction be alienated or subjected to anything beyond a revocable permit"]). The decisive question on plaintiffs' second claim, therefore, is whether the agreement between the Department and CDM constitutes a lease or a license.
A document is a lease "if it grants not merely a revocable right to be exercised over the grantor's land without possessing any interest therein but the exclusive right to use and occupy that land" (id. at 38). It is the conveyance of "absolute control and possession of property at an agreed rental which differentiates a lease from other arrangements dealing with property rights" (Feder v Caliguira, 8 N.Y.2d 400, 404 ). A license, on the other hand, is a revocable privilege given "to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands" (Trustees of Town of Southampton v Jessup, 162 N.Y. 122, 126 ; see also Lordi v County of Nassau, 20 A.D.2d 658, 659 [2d Dept 1964], affd without op 14 N.Y.2d 699  ["Generally, contracts permitting a party to render services within an enterprise conducted on premises owned or operated by another, who has supervisory power over the method of rendition of the services, are construed to be licenses"]). That a writing refers to itself as a license or lease is not determinative; rather, the true nature of the transaction must be gleaned from the rights and obligations set forth therein. Finally, a broad termination clause reserving to the grantor "the right to cancel whenever it decides in good faith to do so" is strongly indicative of a license as opposed to a lease (Miller, 15 NY2d at 38).
In sum, the Department's grant of a license to CDM to operate a seasonal restaurant in the Union Square Park pavilion, without legislative approval, was lawful under our precedents.
Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.
Order, insofar as appealed from, affirmed, with costs.