The Union Square Park Pavilion. The Union Square Partnership BID and the Bloomberg Administration are pushing a plan to convert the historic building into a high-priced restaurant while the community is fighting for it to be used for desperately needed play space for children and other free community uses. (Photos: Geoffrey Croft/NYC Park Advocates.
A New York State judge issued a preliminary injunction that prevents the City and Parks Department from moving forward with plans for a controversial high-priced restaurant in Union Square Park without State legislative approval.
“…defendants are hereby restrained from altering the Union Square Park Pavilion to accommodate a restaurant and/or bar, from granting any further approvals to do so… and from actually operating a restaurant and/or bar in the Pavilion,” New York State Supreme Court Justice Arthur F. Engoron wrote in his January 8, 2013 decision.
In issuing his decision the judge ruled that the plaintiffs would likely prevail in its case because the proposed Pavilion bar and restaurant will not serve park purposes and therefore constitutes an illegal alienation of parkland.
The suit was filed in May 18, 2012.
“We hope this decision once and for all knocks out the Union Square Partnership/Bloomberg Administration’s irresponsible plan to build a restaurant at the expense of the children and the community,” said Geoffrey Croft, a plaintiff and board member of The Union Square Community Coaliltion which brought the suit.
"We hope the City will accept this decision and not continue to force a non-profit to spend its resources to fight this careless plan. The historic Pavilion should be returned for the purposes for which it was built and now more than ever desperately needed.”
The strongly worded opinion granted plaintiffs’ motion for a preliminary injunction and denied the City's motion to dismiss. The judge took into consideration the small size of the park and the high number of dining choices available in the area.
“Here, plaintiffs have proved beyond a peradventure of a doubt that a restaurant is not necessary to insure that park participants do not go hungry or thirsty,” Justice Engoron wrote.
“…on all the available evidence, plaintiffs’ claim that defendants ‘are attempting to create a high-end destination restaurant, as opposed to a public amenity that will serve ordinary park visitors,’ rings true. The Pavilion restaurant’s proposed prices would make broad swaths of the public think twice before entering.”
“All things considered, including the small size and large crowds of Union Square Park; the commercial character of the encircling neighborhood; the plethora of nearby restaurants of every description just beyond its perimeter; the prominence and importance of the Pavilion; the restricted views therein; and the operating hours and prices to be charged by the proposed restaurant, and based on the record at this stage of the litigation, this Court finds that plaintiffs likely will succeed in proving that the proposed restaurant would be ‘in’ the park, but not ‘of’ the park, would be a ‘park restaurant’ in name only, and would not serve a ‘park purpose.’”
June 28, 2012 - Mommy & Me Yoga inside the historic pavilion.
The community has long fought to use the covered Pavilion as it was originally intended, for children and community uses. The community wants the Pavilion renovated and restored to its former uses which include a sheltered, indoor recreation center that serves a variety of year-round recreation and free public uses.
In March the city quietly approved a new fifteen-year deal with Chef Driven Market, LLC. – the owner of a number of high-end restaurants – to build a controversial restaurant with upscale prices in the Children's Pavilion in Union Square Park. A previous deal collapsed in September.
Critics of the plan say despite vehement community opposition, Mayor Michael Bloomberg and the Union Square Partnership (a Business Improvement District or “BID”) are attempting to take away thousands of square feet of potential recreation and community space for six months of the year in order to accommodate a seasonal restaurant.
The area around Union Square Park has the lowest amount of playground space but the highest concentration of restaurants in the entire city. In Community Board 5 there are only two playgrounds, but there are more than 150 eating establishments, bars and markets within just a two-block radius of the park.
Critics also charge that allowing the Pavilion to be converted into a seasonal restaurant will dramatically alter the Park's historic first amendment and free speech uses.
“We are very pleased with the Court's decision recognizing that USCC is likely to prevail on all of its main arguments,” said Reed Super, of Super Law Group, LLC, lead counsel for the plaintiffs. “In denying the City's motion to dismiss and granting provisional relief, the ruling allows our lawsuit to proceed and blocks the restaurant concession in the interim. We look forward to a final decision in this public trust case and to the return of the community's Pavilion to park use.”
"This is great news," said New York State Assembly Member Dick Gottfried and plaintiff in the suit.
"The community has fought long and hard to have this unique pavilion restored and returned to the people. Moving forward we hope the administration finally abandons its commercial restaurant plans and allows this historic space to be used exclusively for free public uses for children and the greater community."
“Great news. This decision recognizes the Pavilion's historic use as a recreation site for children,” said former City Council member and plaintiff Carol Greitzer. “We hope the Parks Department will now work with us to restore the too-long-idle Pavilion to its historic role.”
“Hooray! Judge Engoron’s decision to grant a preliminary injunction against the city in our litigation is a victory for our children and community,” said plaintiff Eadie Shanker.
“The community's eight-year campaign to fight against the city’s effort to privatize the historic Pavilion in Union Square Park is energized by Judge Engoron’s larger view of the ‘crass’ commercialism that already exists in the park and the use of the Pavilion for dining and a bar when an excess of such ‘refreshment’ establishments surround the park. He found ‘highly persuasive’ our vision for multiple community uses of the Pavilion that would be displaced by a commercial restaurant operating from 7 a.m. to midnight every day of the week. His point-by-point arguments in favor of our case validates why we fight.”
The judge also questioned whether the City's 15-year license with Chef Driven Market was legal; “In the final analysis, the Concession Agreement appears to be a lease masquerading as a license,” the court wrote.
The judge also suggested that the plaintiffs would also likely prevail in its claim that the Holiday Market, which takes park land in the Southern part of the Park must also get State legislative or court approval, stating that the Holiday Market is “more like an outdoor Walmart on Black Friday than dedicated parkland.”
The judge also called former Parks Commissioner Adrian Benepe’s description of the park as tranquil “dubious.” “When one thinks of Union Square Park, ‘tranquil’ is not the first word that comes to mind,” the judge wrote.
New York Times - January 10, 2013 - By Marc Santora
New York Observer - January 9, 2013 - By Jane Gayduk
New York Daily News - January 9, 2013 - By Barbara Ross and Ginger Adams Otis
New York Post - January 10, 2013 - By Julia March
gothamist - January 9, 2013 - By Garth Johnston
The Wall Street Journal via Associated Press
A Walk In The Park - March 14, 2012 - By Geoffrey Croft