A Walk in the Park: City/Lincoln Center Sued Over Illegal Takeover Of Damrosch Park

Area residents, members of environmental groups, and Damrosch family members gathered on May 21, the 44th anniversary of the Damrosch Park's opening, to announce the filing of a lawsuit. (all photos by Geoffrey Croft/NYC Park Advocates)

A coalition of area residents and environmental groups were joined by three generations of Damrosch family members on the 44th Anniversary of the park's opening to announce the filing of a lawsuit demanding the City halt its illegal handing over of Damrosch Park to Lincoln Center For The Performing Arts (LCPA) for commercial purposes including Fashion Week. The public has been prevented from accessing the park for up to approximately ten months of the year. (Photos © Geoffrey Croft/NYC Park Advocates)

The suit demands that the agreement between the Parks Department and LCPA be terminated, the uses of Damrosch Park for non-park purposes cease, the Park be restored, and any concession revenue from the Park be paid into the City’s general fund.

"It has become a cash cow for Lincoln Center, and this was not the idea," said Damrosch descendant Sidney Urquhart who attended the park's original opening in 1969.

Several Damrosch family members at the press conference attended the park's dedication on May 22, 1969 with Robert Moses. Mr. Moses named the park in honor of the Damrosch's, often referred to as America's First Family of Music - for their contribution to the musical heritage of New York City since Leopold Damrosch brought his family here in 1871.

Manhattan

An A & E Networks upfront event held in Damrosch on May 9, 2013

An A & E Networks upfront event held in Damrosch on May 9, 2013

Access Denied. A private security guard prevents the uninvited from entering the A & E Networks upfront event held in Damrosch Park on May 9, 2013.

Revenue from the city's July 2010 license agreement with LCPA is also being diverted from the city's general fund to Lincoln Center totaling more than $32 million dollars over the last four years alone. These actions constitute an illegal alienation of Damrosch Park in violation of the New York State Public Trust Doctrine and other laws.

By Geoffrey Croft

Since the late sixties, locals and tourists alike have flocked to Damrosch Park, not only to admire the noted architectural and famed landscape elements amidst the pastoral beauty and to utilize the park for the many active and passive recreational uses, but also to enjoy the free performances and take part in a uniquely New York experience.

Starting in 2010, Damrosch Park - a 2.4 acre public park owned by the Parks Department - became off limits to the general public of much of mid-August to June. In August, the producers of Fashion Week begin erecting tents for their bi-annual show which runs for eight days in early to mid-September consisting of “invitation-only shows."

The Park continues to be off-limits to the general public when the Big Apple Circus moves in after Fashion Week's exit for a four-month long residency from mid-October to January. After that, Fashion Week once again comes in for its February event. LPCA then rents out the public Park for a series of private and corporate events including fundraisers that further displace the general public for an additional four months until May/June.

Thus, these events improperly exclude the general public and displace uses of the Park for park purposes for most of ten months of the year. Only for a few weeks is the public permitted to use Damrosch Park for its intended, and legally mandated, recreational purposes. The private commercial take-over of Damrosch Park also has left a physical mark. For example, in a highly controversial move, the city allowed fifty-six London Plain trees to be destroyed to make room for Fashion Week tents in the spring of 2010 and subsequently removed another eleven trees. Further, in addition to rendering the Park unusable for the general public, the private events disrupt the neighborhood with noise and air pollution from generator’s, trucks and other equipment.

All of these private, commercial uses of Damrosch Park for non-park purposes constitute an unauthorized alienation of public parkland in violation of the Public Trust Doctrine and may not lawfully continue in the absence of State Legislative approval.

The unlawful displacement occurs pursuant to a July 1, 2010, license agreement (the “License Agreement”) between the City, acting by and through the Parks Department, with LCPA. The License Agreement’s initial term is scheduled to run until June 30, 2020 with an option for the City to renew. Although the License Agreement pays lip service to the need for LPCA’s programs in Damrosch Park to “benefit the people of the City” and “the general public,” it does not offer any restraint on the privatization of the park, and instead facilitates and encourages the private domination of the dedicated parkland.

Even the official Parks Department sign with the iconic leaf logo identifying “Damrosch Park” and the Guggenheim flagpole on 62nd Street were both surreptitiously removed.

Fashion Week occupies the park's entire 2.4 acre footprint. The lawsuit was filed on behalf of New York City Park Advocates, Committee for Environmentally Sound Development, and Friends of Damrosch Park by noted environmental law firm Super Law Group, LLC.

Diverting Revenue

City Charter section 109 requires that “[a]ll revenue of the city, of every administration, department … shall be paid into a fund to be termed the ‘general fund.’” Further, section 365 of the Charter requires that “[e]very agreement memorializing the terms and conditions of a franchise … or concession shall contain adequate provisions … to assure the maintenance of the property of the city in good condition throughout the term of the agreement, and … to provide for adequate compensation to the city.”

The License Agreement however provides absolutely no compensation to the City and instead provides for the payment of all of the revenue from Damrosch Park to LPCA in order to “provide a substantial revenue stream” to LCPA. For instance, from 2006-2010, LCPA’s Revenues and Expenses Reports show that revenues from LCPA’s “Special Events” and “Concessions” totaled more than $29 million dollars - the garage located under Damrosch Park, which is owned by the Parks Department, alone grossed more than $26.7 million, all of which was paid to LCPA and none of it to the City. The Agreement goes even further to protect the fiscal interests of LCPA at the expense of the City: “[The Parks Department] agrees that it shall not impose any fee, charge, or other imposition on either LCPA or Special Event Promoters engaged by LCPA in connection with Special Events held in the Public Areas.”

In addition to these amounts under a separate agreement, Fashion Week’s sponsor IMG Worldwide, is paying up to $17.2 million to LCPA to use the city park twice a year through 2014. This money is also being diverted from the city's general fund. Worse yet, the agreement between LCPA and IMG Worldwide, did not go through the City Comptroller’s Office.

This diversion of public funds is illegal, constitutes a waste of public resources by City officials, and should be discontinued.

Although the New York State Legislature has not authorized the use of Damrosch Park for any non-park purposes, for a vast majority of the year private interests – including Mercedes-Benz Fashion Week, the Big Apple Circus, and a host of other private events – exclude the general public from Damrosch Park and displace all free, outdoor, active and passive recreational uses.