Monday, January 13, 2014

New York Court of Appeals To Hear Controversial Union Sq. Park Restaurant Case

Baby Yoga  - 2012 - Union Square Park Pavilion.  For more than 130 years, the park‘s pavilions have served many vital functions - a playspace for children, a bandstand, a reviewing stand, a speakers’ rostrum, and as a focal point for countless labor rallies and social protests. Despite this history, and the serious need for additional recreational and sheltered community space, since 2004 Mayor Michael Bloomberg and the Union Square Partnership — a Business Improvement District/Local Development Corporation — have attemped to sieze thousands of square feet of potential recreation and neighborhood space by turning the historic pavilion into a high-end restaurant.  The BID has been allowed to dictate public land use policy aided by an eight million dollar anonymous donation.

In doing so they have also attempted to by-pass the NY State Legislature in violation of the Public Trust Doctrine, a law that provides robust protection for parkland and dates back to the 19th century in New York, and has its roots in ancient Roman law. 

For the first time in more than twelve years The New York State Court of Appeals will consider the Public Trust Doctrine,  and will hear oral arguments on Tuesday at 2:30 and shown live on the Court's website.  

(Photos: Geoffrey Croft/NYC Park Advocates) Click on images to enlarge

From Free Children, Cultural, First Amendment and Community Park Uses To This.  Rendering of proposed high-end bar and restaurant in the historic pavilion by Chef Driven Market, owners of Five Napkin Burger chain.   

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 District 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.   

Will the de Blasio administration defend a failed Bloomberg-era privatization policy.   

— Geoffrey Croft


On Tuesday, January 14, 2014, and for the first time since Friends of Van Cortland Park v. City of New York in 2001, the New York Court of Appeals will consider the Public Trust Doctrine, which provides that once land has been acquired for use as a municipal park, it cannot be used for any other purpose without the approval of the State Legislature.  In Union Square Park Community Coalition (USCC), et al. v. City of New York, et al., the Plaintiff community group USCC — which is responsible for the rebirth of Union Square Park after decades of neglect — opposes a Bloomberg-era plan to install a high-end, commercial restaurant in the Park's historic Pavilion at the expense of children and the greater community.    

In January 2013, the Supreme Court in Manhattan in a strongly worded opinion blocked the restaurant as a violation of the Public Trust Doctrine.  Later in the year, the Appellate Division reversed the lower court's decision with a summary, one sentence decision.  On appeal, the Court of Appeals will consider the Public Trust Doctrine that dates back to the 19th century in New York, and has its roots in ancient Roman law, and provides robust protection for parkland.  

The Court of Appeals will hear this case at a critical time. Parkland alienation, the sale, lease or use of parkland for non-park purposes without legislative authorization, is a growing concern.  Increasingly, municipal governments are taking parkland from communities, using them as cash cows or as free real estate for commercial or industrial purposes in flagrant disregard of the law.  Tuesday's Court of Appeals argument comes on the heels of two decisions in the last month - Spring Creek Park in Brooklyn and NYU -  in which NY state courts found that the City violated the Public Trust Doctrine by allowing city parkland to be used for non-park purposes without approval from the State Legislature. 

Sanford (Sandy) Weisburst from Quinn Emanuel Urquhart & Sullivan LLP will be presenting oral arguments for the plaintiffs.

 “The plan for the Pavilion and the plaza threaten the historical use of the North Plaza as a public gathering place, and excludes the public from an important part of the public park," said NY State Assembly Member Richard Gottfried, whose district includes Union Square Park and is a plaintiff in the lawsuit.

"The pavilion should be re-established to its original intent as public space.  The Parks Department should open the building for free public uses as well give other organizations the opportunity to submit proposals in a fair and open process that allows for community input.” 

July 14, 2013 - Tango in the Park.   The Union Square Partnership BID has spent millions of dollars trying to prevent the public from accessing the pavilion.  The proposed restaurant would be open from the spring through the fall when the public's use and need of the park is the greatest.

From Arts & Cultural Programming to This.  Rendering of the exterior of the proposed Chief Driven Market high-end restaurant in the historic pavilion.  The proposed commercial entity would prohibited a variety of community uses in and around the building.

"The Pavilion should returned to its historic role as a recreation site for children,” said former City Council member and plaintiff Carol Greitzer.  

“We hope the new administration will now work with us to restore the too-long-idle Pavilion to its traditional historic role.”    

Ms. Greitzer also pointed out that the adjacent playground had few play features for children with disabilities, and little for older kids. She said the pavilion should be utilized to provide expanded services for these and other groups. 

 “The Union Square Partnership/Bloomberg Administration plan to build a restaurant at the expense of the children and the community is shameful,” said Geoffrey Croft, a plaintiff and board member of The Union Square Community Coalition which brought the suit. 

“No BID should be allowed to dictate public land use policies, and especially under the influence of anonymous donations.”

"The factual record clearly establishes that the proposed pavilion restaurant does not serve proper park purposes," said Reed Super, Esq., founder of Super Law Group who have represented USCC since 2008. 

"We look forward to our day in court and to a decision that preserves the pavilion for community use and upholds the core principles of New York's Public Trust Doctrine."  

Background:  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 District 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.   Since 2004 the community around the park has been fighting an irresponsible plan by the Union Square Partnership,  a Business Improvement District/Local Development Corporation, and the Bloomberg administration to install a high-end restaurant depriving children and the community of desperately needed play space. 

The neighborhood has long fought to use the covered Pavilion as it was originally intended, for children and community uses.  The Pavilion should be 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.  

Despite vehement community opposition the plan would 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 BID is being allowed to dictate public land use policies aided by an eight million dollar anonymous donation. It has spent millions of dollars attempting to take away and privatize much needed public space from the community - unlike Manhattan's other pavilion in Columbus Park which was handsomely restored and given back to the neighborhood for community activities.  

Table For Two?  Eliminating the park's historic free speech and rally space. The proposed new seasonal restaurant including the outdoor seating area is expected to severely impede on the parks' historic first amendment and free space role in the Northern plaza as the city will be less inclined to issue permits for large gatherings in order to protect the commercial interests and the physical "improvements" of the restaurant. 

Allowing the Pavilion to be converted into a seasonal restaurant will dramatically alter the Park's historic first amendment and free speech uses. Union Square was designated as a National Historic Landmark in large part because of these uses which began in 1882.

Bloomberg-era free speach policy impacted the use of the pavilion.  On May Day 2012 marchers were kept away from the building (above) by galvanized steel crowd control barricades (below) manned by park workers.

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. Union Square is a National Historic Landmark because it was the site of the first Labor Day celebration in 1882 when the pavilion in the north end first served as the platform for speakers, as it has done on countless other occasions since. 

In March 2012 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 2011. 

In 2004, Save Union Square Park, a grass roots, community - based campaign was organized by NYC Park Advocates to advocate for the needs of the community. With the help and support of 57 community organizations, including USCC, one of the City's oldest park advocacy organizations, elected officials and a broad-based labor coalition, the campaign succeeded in defeating a controversial plan to create a year-round restaurant and greatly increased the amount of playground space, much of it recaptured from play areas lost to the previous seasonal cafe.

The plaintiffs in the lawsuit have vowed to continue to try to prevent the City and the BID from taking way potential play space from children and the community. 

State Senators Liz Krueger and Brad Hoylman and Assembly Member Deborah Glick and former Council Member (now Manhattan Borough President) Gale Brewer have joined the fight by filing an amicus curiae (“friend of the court”) brief. 

Quinn Emanuel Urquhart & Sullivan LLP is representing The Union Square Park Community Coalition (USCC) and several individual plaintiffs in the in the New York Court of Appeals.  The Quinn Emanuel team is led by partner Sanford (Sandy) Weisburst and includes of counsel Andrew Dunlap and associate Yelena Konanova.

Super Law Group, LLC has represented USCC in its efforts to return the Union Square Park pavilion to community use since 2008, and has twice obtained preliminary injunctions blocking the proposed restaurant.  The Super Law Group team is lead by Reed Super and includes associates Alexandra Hankovszky and Edan Rotenberg.  

Arte Institute's NY Portuguese Short Film Festival at Union Square Park Pavilion - 2012.  

Tango In The Pavilion. - 2013. The community has been fighting for the space to be used for desperately needed play space for children and other free community uses. 

Read More:

DNAinfo - January 15, 2014 - By Heather Holland

Court of Appeals to hear challenge to swanky Union Square restaurant 
New York Daily News -  January 13, 2014 -  By Corky Siemaszko  

New York Post - January 13, 2014 - By Julia Marsh 

Judges to Consider City Plan for Union Square Park Restaurants
New York Law Journal -  January 6, 2014 - By Joel Stashenko 

A Walk In The Park - January 9, 2013 - By Geoffrey Croft

A Walk In The Park - March 14, 2012  - By Geoffrey Croft

A Walk In The Park - November 17, 2011 

New York Daily News - April 30, 2008 - By Juan Gonzalez

New York Times - April 23, 2008 - By Timothy Williams

NY1 - April 28, 2008

NY1 - October 17, 2005

Faces Chants of Protesters
The New York Sun - October 26, 2004 - By Dina Temple-Raston

1 comment:

  1. Wonderful news! Hopefully DeBlasio will simply drop the former Mayor's position against the community, and halt litigation, restoring the park to a park and not a private restauranteer's playground, thus preserving the Public Trust Doctrine without the cost of further litigation - wasted tax dollars to "defend" the flawed Bloomberg privatization schemes, and wasted civic man hours and donations to defend the people of New York and PARKS. Bravo Geoffrey for your support for parks!