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 entrées 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 

No comments:

Post a Comment