Showing posts with label The Union Square Community Coaliltion. Show all posts
Showing posts with label The Union Square Community Coaliltion. Show all posts

Thursday, January 16, 2014

No Limits On Restaurant Space Or Prices In Parks - City

"I'm asking if a restaurant wanted to charge $100 for appetizers – and of course proportionally more for entrees and so on – it’s still a park purpose, so it’s OK even though only maybe very few people would be able to eat there?"  - New York State Court of Appeals Judge 

"I would say that is correct, your honor," City attorney Deborah A. Brenner

The City argued there is virtually is no limit on the amount of space a restaurant can occupy in a public park, or prices they can charge that are to high even if the vast majority of people would be prohibited from affording it  - a restaurant would qualify as a "park purpose" under the law.

The City also incorrectly argued in New State Court of Appeals on Tuesday that no matter what the circumstances the decision to install a restaurant is solely at the discretion of the Parks Commissioner. The Public Trust Doctrine, which provides that once land has been acquired for use as a municipal park, it cannot be used for non-park purposes without the approval of the State Legislature.  

The area around Union Square Park has the lowest amount of playground space but the highest concentration of restaurants in the entire city.  Since 2004 Mayor Michael Bloomberg and the Union Square Partnership — a Business Improvement District/Local Development Corporation — have attempted to seize 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.

City - Wide

By Geoffrey Croft

Talk about a tale of two cities.

In a first court appearance under the new administration of Mayor Bill de Blasio, city lawyers argued that luxury restaurants belong in public parks – and it doesn’t matter how much they charge to eat there, how many people can't afford it or how much land they take away.

In fact, the city said, these eateries can take up to “98 percent” of a park. 

Under this scenario, the public would have no say in private businesses swallowing 826 acres of Central Park.

The city also argued the parks commissioner has unlimited power in making such decisions, once again completely eliminating the checks and balances system required by the Public Trust Doctrine.    

The controversial comments were made during oral arguments Tuesday in the state’s highest court, which is considering a lawsuit by residents around Union Square to stop a high-end restaurant from taking over the park’s historic pavilion. Courts have long ruled that parks are held in the public trust, and state law requires the alienation of parkland by the Legislature before the property can be used for non-park purposes.

The suit says the city violated the public trust doctrine in attempting to bypass the state Legislature to install the high-end restaurant in Union Square. The surrounding neighborhood has the city’s highest concentration of restaurants and the least amount of public play space.

For almost a decade, the community has been battling the plan, promoted by the area's business improvement district, the Union Square Partnership and the city.  The city has allowed the BID to dictate public land use policy aided by an $8 million anonymous donation.

The state's top judges repeatedly tried to get the city's lawyer, Deborah A. Brenner, to address why this particular restaurant would qualify as a "park purpose,” but she could not.

"How is this restaurant a park purpose?" asked Chief Judge Jonathan Lippman.

"Restaurants historically have been held to be,said Brenner, arguing on behalf of not only the city but the proposed restaurant concessioner, Chef Driven Market.

"'What about this restaurant?" interrupted Judge Robert S. Smith.
"Well.” Brenner replied, “restaurants in general . . . ”

"You say that's the end of the inquiry -  it's a restaurant, good-bye?" asked Judge Smith interrupting.

"Generally, yes, your honor,” Brenner said.

“I mean, I could envision a case where if 98 percent of a park were being turned into a food court that might be a problem," she said.

The judges also wanted the city's lawyer to commit to financial parameters in considering a potential restaurant's legal appropriateness.

"You said, ‘What the restaurant charges is not really important. If a restaurant charged $100 for appetizers — and of course entrĂ©es and everything else would be a lot more than that – [it] would be OK because?" asked Justice Sheila Abdus-Salaam.

"Well, there are some park restaurants in the city that have substantially higher prices than that," said Brenner, who failed to provide even one example.

Judge Abdus-Salaam was undeterred. 

"I'm asking if a restaurant wanted to charge $100 for appetizers – and of course proportionally more for entrees and so on – it’s still a park purpose, so it’s OK even though only maybe very few people would be able to eat there?" Judge Abdus-Salaam questioned. 

"I would say that is correct, your honor," Brenner replied.

Brenner went on to argue that the prices for the proposed restaurant were not expensive.

"We're talking about by Manhattan standards,” she explained, claiming the restaurant would charge “some very reasonable prices on the low end." 

Though only paying customers could sit in the restaurant, Brenner pointed out, “There's no admission fee. There’s no requirement that you spend a certain amount of money."

Chief Judge Jonathan Lippman noted the plethora of available of restaurants and bars surrounding the park: 

"Aren't there restaurants all around the square where people are serving alcohol?”

"There are,” acknowledged the plaintiff’s attorney, Sanford I. Weisburst, “but not a few feet from the playground.” 

A children’s playground is immediately adjacent to the proposed restaurant and bar in the park. 

“Moreover,” Weisburst continued, “the fact that those restaurants exist totally undermines one of the factors this court should consider," he said dismissing the city's claim that the park needs a restaurant and qualifies as a park purpose.

One of the main points of contention is the use of the pavilion as a seasonal eatery takes away desperately needed recreational space at a time when the public's need is the greatest - spring through the fall.

The City lawyer argued that "heating lamps" could be used during the winter,  an idea that was long ago pointed out as being absurd in an open air building.

The City did not mention the interior space inside the pavilion the concessionaire plans to use year-round for a kitchen, at the expense of children, teens and seniors and the greater community.

The plaintiffs attorney pointed out that the restaurant would displace historic park uses including recreational and free speech.

"If you could pick the worse place to displace park activities this would be it, " argued Sanford I. Weisburst on behalf of the plaintiffs.

Judge Smith asked why would anyone sign,  including Chef Driven Market, a nominal 15 year license term, "when Mayor de blasio could kick him out tomorrow."

"Well I think Its a calculated risk,"  Deborah Brenner responded.

"If the State legislature was good enough to decide Bryant Park it should be good enough to decide Union Square," attorney Sandy Weisburst said about that restaurant which received state Alienation legislation approval.

"Ultimately all we're asking is the opportunity to have the State legislature decide this,"  Mr. Weisburst said.

"This is a very long standing doctrine,"  Weisburst said citing former New York Court of Appeals Chief Judge Judith Kaye in the Van Courtland Park water filtration case decision. 

"It requires State legislative approval as a check and balance on local city officials and for this court to say that restaurants are per se park uses would really over turn the doctrine," he argued.

"If you could pick any place in the city , in any park to put a restaurant this is the wrong place and we should have a chance to satisfy that test," he said in closing.

The Mayor's press office Ignored several requests seeking comment. 

The Court of Appeals oral argument in this case comes at a critical time. Parkland alienation, the sale, lease or use of parkland for non-park purposes without legislative authorization, was a big concern under the Bloomberg administration.  Increasingly, municipal government took parkland from communities, using them as cash cows or as free real estate for commercial or industrial purposes in flagrant disregard of the law.

Read More:

New York Post - January 16, 2014 - By Julia Marsh

Pavilion bistro lawsuit is back on the front burner 
The Villager - January 16, 2014- By Sam Spokony

A Walk In The Park - January 13, 2014 - By Geoffrey Croft 

Wednesday, January 9, 2013

Judge Stops Union Square Restaurant Plan

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."   

Tango On The Square.  Rain or shine the free summer series welcomes seasoned and beginners alike at the the newly renovated pavilion. 

“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. 

July 27, 2012 - NY Portuguese Short Film Festival annual Summer Night Series, a bi-monthly screening of Portuguese cinema presented free in the Union Square Park pavilion includes music, lectures, performances and the arts. 

Read More:

New York Times - January 10, 2013 - By Marc Santora

New York Observer - January 9, 2013 - By Jane Gayduk 

Court puts kibosh on Union Square Park restaurant and puts popular holiday market in peril 
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