NY State Court of Appeals Agrees to Hear Case Against NYU Park Alienation Expansion Plan

The state’s highest court,  the Court of Appeals, has agreed to hear arguments regarding NYU's Greenwich Village massive expansion plan.  Plaintiffs are seeking to protect four park parcels that NYU is planning to build on as part of its  $6 billion, 20-year plan.

Last January Manhattan Supreme Justice Donna Mills ruled that the City, "alienated public parkland without approval by the New York State legislature in violation of the Public Trust Doctrine.” The decision would have spared three of the four parks plaintiffs are seeking to protect —Mercer Playground, LaGuardia Park and LaGuardia Corner Gardens—from destruction under NYU’s current expansion plan.  Under that ruling construction could not have begun until the Legislature authorized the removal of the park space.  In January NYU said they were going to appeal. 

On October 14th, the Appellate Division’s First Department overturned the lower court’s decision, ruling in NYU's favor. 

Plaintiffs are hoping to get a better outcome than last years disastrous Court of Appeals Union Square Park ruling. 

"Park advocacy" group New Yorkers For Parks supported the city and developer in both alienation cases. 

- Geoffrey Croft


Manhattan/Albany

NY State Court of Appeals Agrees to Hear Case Against NYU Expansion Plan;

Could Save Village Parks From Destruction, Affect Countless Parks and Open Spaces in the City and State; Actor and Activist Ruffalo Lauds Court’s Acceptance of Case, Warns Earlier Decision Must Be Overturned or Have Disastrous Implications for Public Commons

In the latest installment of the ongoing struggle against NYU’s huge expansion plan, the State's highest court, the New York State Court of Appeals, has agreed to hear a case that was filed by petitioners in mid-November regarding public parkland, according to a press release put out by plaintiffs.

The lawsuit has passed through two lower courts, with differing results. Those following the dispute, especially park advocates, are awaiting a verdict that could have massive ramifications on the way that the City and the State deal with public parks in the future.

On October 14^th, the Appellate Division’s First Department overturned a lower court’s decision that would have spared three parks—Mercer Playground, LaGuardia Park and LaGuardia Corner Gardens—from destruction under NYU’s current expansion plan. According to the lower court’s ruling, all three strips are public parks, and therefore entitled to protection, since the public has been using them as parks for many years, making them “implied” parkland, with the City funding, labeling and maintaining them as parks.

NYU and the City counter-argued that those parks aren't really parks, since they were never "mapped" as parks (a bureaucratic technicality), and are nominally overseen by the City's Department of Transportation. The First Department’s decision would allow NYU to raze those treasured parks to make way for its vast expansion plan, and set a precedent that could potentially threaten countless public parks throughout the City and the State.

Petitioners, NYU Faculty Against the Sexton Plan, Greenwich Village Society for Historic Preservation, Historic Districts Council,Washington Square Village Tenants’ Association, East Village Community Coalition, Friends of Petrosino Square, LaGuardia Corner Gardens, Inc., Lower Manhattan Neighbors’ Organization, SoHo Alliance, Bowery Alliance of Neighbors, NoHo Neighborhood Association, Assembly Member Deborah Glick and 10 other individuals, are represented on a pro bono basis by the law firm Gibson Dunn & Crutcher, with Randy Mastro as lead attorney. 

Their motion papers make clear that “the First Department’s decision disregarded well-established common law principles for determining when municipal land has been impliedly dedicated for parks usage.  In recognition of the unique value that public parks hold for children, families, and communities, the Public Trust Doctrine accords parkland special protection.”

“We’re glad that the Court of Appeals agrees that this case is important. These parks have been a vital part of the Greenwich Village community’s daily life for decades. Not only do we want to save these parks from NYU’s reckless, unnecessary expansion, but we want to do the same for the parks that will be threatened elsewhere if the lower court’s decision stands,” said Andrew Ross, Urbanist and Director of American Studies Program at NYU.

The petitioners are asking the Court of Appeals to consider two issues: that the First Department’s decision actually conflicts with prior appellate court decisions, and prior decisions by the Court of Appeals itself, about this kind of “implied” parkland, and that the First Department’s decision, if left intact, will have the effect of abolishing implied dedication—a consequence with widespread negative effects, not just in New York City, but throughout the State.

Parks and open spaces are protected by the Public Trust Doctrine, which maintains that the government holds the titles to certain waters and lands in trust for the people. In New York State, if an entity wishes to develop or remove a parcel of parkland from public ownership and use, it must follow a legal process called “alienation,” which, among other conditions, requires approval from the state Legislature. This was not done in the case of the Village parks that NYU wants to destroy for its ill-advised expansion plan. The First Department’s decision flies in the face of this doctrine and of its own decisions, and would imperil all kinds of public and green spaces throughout the state; it would leave ordinary New Yorkers with no protection against the removal and abuse of open spaces and parks for development.

“We understand that the battle is not yet over, but we appreciate that the Court of Appeals grasps the gravity of the situation. If these parks can be handed off to NYU in spite of the Public Trust Doctrine, it sets a terrible precedent, and the outcome for similar cases is bleak,” continued Ross.

Professor Mark Crispin Miller, President of NYUFASP, said, “Green spaces like these parks play an imperative role in keeping New York livable. We hope that the Court of Appeals overturns the First Department’s decision before it can do irreparable harm to the Public Trust Doctrine. Without the legal protection that provides, we could lose countless other City and State parks to greedy speculators like NYU.”

“These public parks have been a vital part of the Village for decades, and they have benefitted the public in numerous ways. Without the Court of Appeals’ intervention, not only will they be given to a private corporation for its own financial gain, but such a thing could become a common and unremarkable occurrence throughout New York,” said actor and environmental activist Mark Ruffalo.

Read More:

Court of Appeals to Hear Case Against NYU Expansion

Wall Street Journal -  February 24, 2015 - By Mike Vilensky

Court agrees to hear opponents of NYU expansion

By Bloomberg News - February 24, 2015

Judges to Review Challenges to NYU's Expansion Proposal

New York Law Journal - February 25, 2015 - By Joel Stashenko

NYU Expansion Foes Take Fight To Top NY Court
New York Post - February 24, 2015 - By Julia Marsh    

THE LATEST ON NYU’S EXPANSION PLAN WILL ALSO DICTATE FUTURE PUBLIC PARKS POLICY   
NYULocal - February 24, 2015 

Union Square Park: Mayor de Blasio Called On To Halt Controversial Bar/Restaurant & Return Historic Pavilion For Community Uses

There is nothing progressive about displacing families, children, seniors and eliminating one of the county's most historic free speech sites in a public park. On Sunday community residents and representatives from more than 50 neighborhood associations came together to call on Mayor De Blasio to void the concession agreement and give back the pavilion to the people and do what is right for New York City.   (Photos: Courtesy NYC Park Advocates) Click on images to enlarge

(from L) US Representative Carolyn Maloney,  State Senator Brad Hoylman, Manhattan Borough President Gale Brewer, former Council member Carol Greitzer,  NY State Assembly Member Richard N. Gottfried, NYC Park Advocates president Geoffrey Croft, City Council Member Corey Johnson and civil rights attorney Norman Siegel.

The new administration has an opportunity to set a very important tone concerning its public policy towards parks.

Manhattan

By Geoffrey Croft

Children, parents, seniors,  elected officials, advocates, community residents and representatives from more than 50 neighborhood associations came together on Sunday to call on Mayor de Blasio to cancel the Bloomberg - era contract to build a controversial high-end bar/restaurant in the historic Woman's & Children's Pavilion in Union Square Park. 

On Friday seven elected officials sent a letter to Mayor Bill de Blasio with the request.

The signatories included US Representative Carolyn Maloney, Manhattan Borough President Gale Brewer,   NY State Assembly Member Richard N. Gottfried, State Senators Liz Krueger and Brad Hoylman, City Council Member Corey Johnson.

For the past decade the community has been fighting to have the historic pavilion in Union Square Park restored to its former uses which include a sheltered, indoor recreation center that served a variety of year-round recreation and free public uses for children, teens, families, seniors, and the greater community at large.

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 more than 150 eating establishments, bars and markets within just a two-block radius of the park.  

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 (“BID”), have attempted to seize thousands of square feet of potential recreation and neighborhood space by turning the historic Pavilion into a high-end bar and restaurant despite vehement community opposition. The BID, run by Bloomberg's former deputy press secretary,  paid for and pushed though a plan which displaces all of the traditional community uses. 

The BID has been allowed to dictate public land use policy aided by an eight million dollar anonymous donation. 

 Assembly Member Richard Gottfried making a point.  

The City's lawyers have repeatedly argued that the contract can be canceled by the administration at no cost to the tax payers. 

“The Mayor has the legal right to cancel this contract for any reason,” said Assembly Member Richard Gottfried.  

“As the concession agreement provides and the City’s Law Department vigorously argued to the New York State Court of Appeals, the license is freely terminable “at will” at any time.

We have any number of restaurants, but we have only one park pavilion, and we want it back. Fortunately, we have a new mayor who has the power, and we hope, the will, to give it back to us. We know he has the power to give it back to us, because when the city was in court, they argued that there's nothing to worry about, because the city can breach the contract and give the pavilion back at will, at any time. Well, that's right, and we want to give it back now. That's the law, that's our right, and that's what this community needs."

 “For years this community has made it plain that it would be unconscionable to turn a part of Union Square Park, which has historically been a center of activism, recreation and other park uses, into just another high-end restaurant,"  said Congresswoman Carolyn B. Maloney.

"It blows my mind that the previous administration would consider confiscating precious park space to develop another fancy eatery and watering hole.  I strongly urge Mayor de Blasio to cancel the arrangement.  

I join my colleagues in the neighborhood by saying that this is one of the dumbest ideas that I have seen, to take parkland and turn it into a restaurant," the Congresswoman continued.

"We need to stop this, we need to stop it now. And fortunately we have a new mayor who can turn this around. We are a community that is absolutely starved for open space and parkland...Every inch is valuable to the families and the children, and we need every square inch of this park to stay a park. We have lovely restaurants all around here, and we shouldn't have to give a large chunk of this park for a high end restaurant...We can think of hardly anything that is less suited for this park than a high end restaurant," she said. 

“It's beyond ironic that the Union Square pavilion where Emma Goldman and Dorothy Day made history practicing their brand of free speech could instead become home to free-range pork," said Manhattan Borough President Gale Brewer. 

"This neighborhood already has an enormous choice of restaurants – and a shortage of park space.  To put a restaurant here, in this designated National Historic Landmark, puts a price tag on the public’s enjoyment of what should remain a public space. 

This is a community of restaurants, and all you have to do is walk around to see them all, and there's very little park space. There are millions of people in this park every single day...We need every single opportunity for public space. This is really a unique, fabulous pavilion, and we want it available to the public, and that's why I'm here. I'm for restaurants in parks, but not this one," she said.

“There is nothing progressive about displacing families, children, seniors and eliminating one of the county's most historic free speech sites in a public park, said Geoffrey Croft of NYC Park Advocates and a board member of The Union Square Community Coalition both  plaintiffs in the lawsuit.    

"The new administration has an opportunity to set a very important tone concerning its public policy towards parks.  We are requesting that the Mayor void the concession agreement and give back the pavilion to the people and do what is right for New York City. The BID has been allowed to dictate public land use policy aided by an eight million dollar anonymous donation.  This is terrible public policy.” 

Geoffrey Croft holding up a photograph and rendering of competing uses for the pavilion — mommy and me yoga and the proposed high-end bar/restaurant. 

The community is demanding that the Parks Department allow for community input in a fair and open process that gives organizations and the public the opportunity to submit proposals to be re-established to its original intent as public space.

"This shouldn't be a tale of ‘two pavilions,’ said former City Councilmember Carol Greitzer who represented the area for 21 years. 

"The Columbus Park pavilion serves the recreational needs of all age groups while this one, although designated the Children's Playroom nearly 150 years ago, has been allowed to deteriorate by the Parks Department.   A restaurant would displace families, children, seniors, and eliminate one of the county's most historic free speech sites."

Manhattan's only remaining historic park pavilion in Columbus Park was handsomely restored recently and given back to the public for community activities and is a valued neighborhood resource.

"The public space of Union Square is a civic treasure -- a place with a rich history of speeches, protests, and social movements, and a rare open space in one of the city's densest hives of activity, State Senator Liz Krueger stated.  "

We must not sacrifice this hallowed ground for another restaurant in a neighborhood full of restaurants."

New York State Senator Brad Hoylman and daughter Sylvia.

New York State Senator Brad Hoylman called on the City to cancel the restaurant contract and restore the pavilion as part of a unified and non-commercial public space.

"With dozens places to eat within blocks of Union Square, it's wrong and shortsighted to place yet another dining establishment in the park's pavilion," Senator Hoylman said holding  his daughter Sylvia.

"I'm here as a State Senator, but also as a dad,  and a user of the park along with my daughter, Sylvia. She's been pulling at my hair throughout this entire press, conference,  saying 'I want to go play,  I want to go play, ' and that's, the principle that's really at stake here. It's the public trust, doctrine.  It dates back to Roman times, when natural resources were for the public, and whether that was rivers, or waterways, or public parks, we as a public deserve those public spaces. And that's really why we're all here. That's why we're asking Mayor de Blasio to put an end to this farce, and make certain that the pavilion is returned to the people, to make certain that the pavilion is returned to users like Sylvia."

NY State Assembly Member Deborah Glick, a passionate protector of parkland added,  “I have long held that public space should not be given over to private development. The community needs is more parkland, not another wildly expensive restaurant. I join with the local community and elected officials, to ask Mayor de Blasio, to cancel the contract and ensure New Yorkers get the open space they deserve.”

‎"Union Square is one of our city's most important public spaces. Its very name echoes the historic role it has played in New York City's history,” said Councilmember Corey Johnson.  

“The private takeover of public spaces is unacceptable. We need to create more public green space, not give away what is already rightfully ours," he said.

Critics also charge that the proposed new seasonal restaurant and its outdoor seating area will also dramatically alter the Parks' historic first amendment and free speech role by prohibiting these uses in the pavilion and in the North end of the park year-round. Union Square was designated as a National Historic Landmark in large part because of these important uses which began in 1882 in the park' s first pavilion.   

"We call upon Mayor DeBlasio to cancel the contract to create a high-end restaurant in Union Square Park and return the historic Pavilion for community uses,"  said Civil rights attorney Norman Siegel. 

"In this controversy, a "progressive" mayor should place the community's needs, wishes and rights over the establishment of and the development of business profits.

“So,  Mayor de Blasio,  this is a test for you, ” Siegel exclaimed,  “to see whether your actions will meet your rhetoric.”

Council Member Mark Levine said he also opposes the use of Union Square Park Pavilion for bar/restaurant and called for the preservation of this historic open space for the community and a safe playground for children.

"In a neighborhood already densely populated with restaurants and bars and lacking in public parks, it is essential to preserve Union Square as an open space pavilion," Council Member Levine, the newly appointed Chair of the Committee on Parks and Recreation Committee said in a statement.  

"For over a hundred years, Union Square has been the central ground for community activism and engagement. I stand with the community in their calls to rescind the contract put forth by the former administration and the Union Square Partnership - BID. We need to prioritize the needs of this community for recreational and gathering space over the interests of private development and ensure that this historic location continues to be the focal point for special events and programming that will benefit residents of all ages regardless to their income level."

The day brought out representatives from numerous neighborhood and community groups including, Union Square Park Community Coalition,  The Council of Chelsea Block Associations,  Tilden Democratic Club,  and several plaintiffs fresh off their victory in NYU park land alienation case. 

Sign of the Times. U.F.T. co-founder George Altomare calling out the Union Square Partnership BID. He recalled using the Union Square pavilion as a free-speech platform in the 1960s and ’70s.  Mr. Altomare, along with Eadie Shanker and Carol Greitzer were among the first group of people who helped raise awareness of the BID/Bloomberg pavilion privatizing scheme in the park beginning in 2004.  (Photo: Sam Spokony/The Villager)

For more than 130 years, the historic Pavilion in Union Square Park has served many vital functions to all New Yorkers - a covered playspace for children and mothers, a bandstand, a reviewing stand, a speakers’ rostrum, and as a focal point for countless labor rallies and social protests.  Recently the pavilion has also been used for wonderful new uses like free arts and film programs as well as for dance classes. 

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, elected officials and a broad-based labor coalition, the campaign succeeded in defeating an irresponsible 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.

In March 2012 the city quietly approved a fifteen-year deal with Chef Driven Market, LLC. – the owner of a number of high-end restaurants – to build a restaurant at the expense of the children and the community. 

Plaintiffs including the Union Square Park Community Coalition sued claiming the City violated the Public Trust Doctrine which says that municipal park land can not be used for non-park purposes without the consent of the State Legislature. 

Comments made by the City's lawyer in January before the New York Court of Appeals were shocking and park and open space advocates hope they are not indicative of the new administration.

The City argued that there is virtually no limit to the amount of space a restaurant can occupy in a public park, or a price they can charge too 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. 

In fact, the city argued the only scenario where a resturant might not be a park purpose would be if it took 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 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.   

Last month the Court of Appeals ruled that the restaurant could go forward. 

Sign of the Times.  New Yorkers for Parks, a partner organization of the Parks Department filed an Amicus Brief,  written by a board member,  supporting the irresponsible restaurant plan.   In what is clearly a conflict of interest the group has repeatedly failed to disclose to the media that restaurateur Danny Meyer was the co-chair of  the Business Improvement District (BID) which created and paid for the Union Sq. restaurant plan while simultaneously serving on NY4Parks Board.  He also made at least a $ 25,000 donation to the group.  

In several instances NY4Parks has actively worked against communities trying to protect parks and have provided cover for bad park policy issues. 

The public is encouraged to contact the Mayor and the Speaker.  

Contacts: 

Mayor Bill de Blasio  

City Hall 

New York, NY 10007

Email:  http://www.nyc.gov/html/static/pages/officeofthemayor/contact.shtml

City Council Speaker

Melissa Mark-Viverito

City Hall -   New York, NY 10007

(212) 788-6960

mviverito@council.nyc.gov

Read More:

Rally blasts pavilion bistro as mayor remains mum

The Villager - March 13, 2014 - Sam Spokony 

Protesters of fancy restaurant in Union Square Park call on Mayor de Blasio to halt project 

New York Daily News  - March 9, 2014 -   BY Erin Brodwin  

De Blasio to Review Restaurant Plan at Union Square

Epoch Times -  March 9, 2014 - By Ivan Pentchoukov

Park Advocates Urge Mayor to Block Union Square Restaurant

DNAinfo -  March 9,  2014 - By Dana Varinsky

Community Reps Plead With De Blasio To Block High-End Union Square Bar

WCBS - March 9,  2014 

1010 WINS

Plan Offers No Picnic for Union Square Park

New York Times -  February 26, 2014 - By Michael Powell

Only Bill De Blasio Can Save Union Square Pavilion From Brunchers

NYU Local - February 25th,  2014 - By Kevin Beerman 

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

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

Judge Stops Union Square Restaurant Plan

A Walk In The Park - January 9, 2013  

Bloomberg Unveils Redesign Plan for Union Square Park

NY Sun -  October 26, 2004 - By Dina Temple-Raston 

Judge Strikes Down NYU Plan Over Illegal Taking Of Park Land - 2nd Ruling Against Bloomberg in Weeks

“NYU’s massive expansion project now cannot go forward, absent State Legislative approval, and that is never going to happen. End of story. “This is a huge victory for the Greenwich Village community, preserving this historic neighborhood and protecting its cherished, precious parkland.”  -   Attorney Randy Mastro 


NYU 2031 Massive Two Million Square Foot $ 6 Billion Expansion Project.  The plaintiff's lawsuit contends that the Bloomberg administration gave NYU rights over public parkland, in violation of state law, which requires, under the Public Trust Doctrine, that parkland cannot be given away without the approval of the State Legislature. The judge agreed.

Manhattan Supreme Justice Donna Mills ruled that the City, "alienated public parkland without approval by the New York State legislature in violation of the Public Trust Doctrine.”  Construction on the $6 billion, 20-year plan can not begin until the Legislature authorizes removal of the park space.

The City Council rubber stamped the project in July 2012.  In September 2012,  eleven groups filed suit against City for illegally approving NYU Sexton expansion plan for Greenwich Village.

The City and NYU had attempted to argue that because the four parks in question were never officially, "mapped" they were not legal parkland and as a result they do not require State Alienation approval.  

Former NYC Deputy Mayor Randy Mastro argued that the parkland had been used for decades and the absence of official mapping does not afford the parks any less legal rights for protection under state law. 

This is the second time in two weeks a judge has ruled that the Bloomberg administration broke the law by illegally alienating parkland.  On December 20th a Brooklyn judge ruled that the Parks Department and NYS DEC by issuing a permit allowed 20 acres in Spring Creek Park near Jamaica Bay to be used by the Department of Sanitation for a solid waste facility.

- Geoffrey Croft 

Manhattan

A Manhattan judge all but halted New York University’s controversial expansion plan Tuesday, ruling that the city broke the law by giving away public parkland without state approval, accordong to the New York Post.

The case, brought by Greenwich Village activists in 2012 drew support from local celebrities including Matthew Broderick, Susan Sarandon and Padma Lakshmi.

“NYU’s massive expansion project now cannot go forward, absent State Legislative approval, and that is never going to happen. End of story,” crowed the neighborhood advocates’ attorney, Randy Mastro.

“This is a huge victory for the Greenwich Village community, preserving this historic neighborhood and protecting its cherished, precious parkland.”

Manhattan Supreme Justice Donna Mills said construction on the $6 billion, 20-year plan that alters the green space cannot begin until Albany lawmakers OK the removal of the park space.

About 20 Greenwich Village residents including NYU faculty sued the city and the university in September 2012 to stop the plan, claiming that the university did not obtain required approvals for the construction on two “superblocks” between W. 3rd, Houston and Mercer streets and LaGuardia Place.

Mercer Playground, one of two playgrounds NYU had hoped to tear down and replace with skyscrapers in its $ 6 billion dollar expansion plan  The plan also included removing a community garden (photo below) and a dog run. (Photo:  Terri Cude) 

Residents like Matthew Broderick, who lives on Charles Street with his “Sex & the City” actress wife Sarah Jessica Parker and their kids said the plan will change the character of the Village.

“I’m very interested in this whole change that’s potentially going to happen to the Village,” Broderick told The Post outside court last February.

“I grew up on Washington Square. NYU has just taken more and more of what I think of as a unique and important part of the Village where a huge amount of creativity has come from,” Broderick said.

Sarandon donated two hours of free ping pong at her club SPiN to raise legal funds for the case.

The LaGuardia Corner Garden has been at it's current location at the corner of Bleecker Street and LaGuardia Place since 1981. Neighbors of LaGuardia Place Park paid for landscaping and raised funds for a new toddler park themselves. Under NYU's plan, residents would have also lost the Mercer-Houston Dog Run. (Photo: Elisabeth Robert/The Villager)

The City Council greenlighted the project in the summer of 2012.

But Justice Mills ruled in a 78-page decision that the city “alienated public parkland without approval by the New York State legislature in violation of the Public Trust Doctrine.”

City lawyer Chris Reo said, “We just received and are reviewing the decision.”

A spokesman for NYU downplayed the loss, saying that the ruling still allows the university to move forward on an initial project — building a new academic space on a site that currently houses athletic facilities.

“Once we have a chance to thoroughly review the decision with our planning team and determine the precise impact of the ruling on our ability to implement other elements of the plan, we will work with the City, as lead respondent, to determine our next legal steps,” said spokesman John Beckman.

Sticker distributed by Andrew Berman, Executive Director of Greenwich Village Society for Historic Preservation at the court hearings. 

Read More:

Judge says NYC broke the law in NYU expansion plan

New York Post - January 7, 2014 - By Julia Marsh  

NYU/City In Court Over Attempted Illegal Parkland Swipe

A Walk In The Park -  February 26, 2013 - By Geoffrey Croft

NYU, City, State Sued Over NYU's Massive 2031 Expansion Plan  

A Walk In The Park -  September 26, 2012  

NYU's Mega-Expansion Plan Presses Forward With Park/Open Space Destruction

A Walk In The Park - January 28, 2012 

NYU Expansion Plan Presses Forward With Park Destruction

A Walk In The Park - September 17, 2011 

Residents Fight NYU Over Parkland Destruction

A Walk In The Park -  November 1, 2010 

NYU Expansion Plans Include Destruction of Beloved Parks

A Walk In The Park - May 18, 2010

New Park "Vendor" Rules Won't Affect Performers - City. Commish Lies Over Responsibility For 2011 Crack-Down

"Although those rules are written, you're saying that none of those rules is going to be enforced on us. Excuse me but that's a contradiction and that confuses the entire room."  

 - Joe Mangrum to Manhattan Borough Parks Commissioner William Castro.  

Colin Huggins playing in the Washington Square Park over the weekend. In 2011 he received numerous summonses from Park Enforcement Patrol officers in a crackdown on performers carried out by the Parks Department. Under new rules adopted by the agency, the city classifies "entertainers" who solicit donations in parks as "vendors," requiring licenses and special permits. Yet at a Community Board 2 meeting last week, Manhattan Borough Parks Commissioner William Castro said the new rules won't be enforced, leaving many people scratching their heads in confusion. (Photos: Geoffrey Croft/NYC Park Adovocates)  Click on images to enlarge

Castro blamed the 2011 summons crackdown against performers and musicians on a single PEP officer, an assertion vehemently denied by those involved. The ticket blitz generated a public outcry and considerable media attention.

The revised park rules for performers and musicians go into effect on May 8th. There are two PEP officers and one supervisor assigned to cover 59th Street to the Battery in Manhattan.   

Manhattan

By Geoffrey Croft

The Parks Department spent last week backpedaling from its 2011 ticket-blitz on musicians and performers in Washington Square Park, pinning the blame on one overzealous Parks Enforcement Patrol officer – yet it refused to reverse the rule changes that led to the crackdown, and in fact added more restrictive language.  

Confusion and disbelief reigned at a meeting of Manhattan Community Board 2’s Parks Committee, as a senior Parks official vowed the new rules, which go into effect May 8, won’t stop musicians and other performers from playing in Washington Square Park.

The City is attempting to classify performers and musicians "providing entertainment" who solicit donations in parks as "vendors" under new rules adopted by the agency.

On April 2, the department quietly held a public meeting that finalized the changes.

The new rule is aimed at controlling revenue production in parks, and cracking down on long-protected rights critics say, and violators face fines of up to $250 for a first offense and up to $1,000 thereafter.

According to Parks however, the purpose of the new rules is to "clarify the Department’s original intent that individuals providing entertainment, such as musical performances, juggling, dance, or other performance arts in exchange for a fee or for a donation are considered vendors.”

§ 2. Section 1-05(b) of Title 56 of the Official Compilation of the Rules of the City of New York has now been amended to read as follows: "No person in or on any property under the jurisdiction of the Department shall sell, offer for sale, hire, lease or let anything whatsoever, including, but not limited to goods, services, or entertainment, or provide or offer to provide services or items, or entertainment in exchange for a donation (hereinafter ‘vend’), except under and within the terms of a permit, or except as otherwise provided by law.”

Steven Goulden, acting corporation counsel in the city's Law Department, signed this amendment dated December 28, 2012.  On January 29, 2013 Hunter Gradie from the Mayor’s Office of Operations, analyzed the proposed rule Pursuant  to Charter section 1043(d). 

In 2011, street performers were aggressively targeted by the Bloomberg administration under the new rule’s prohibition against collecting donations near landmarks or monuments in parks under the Parks Department's Expressive Matter vending rules.  PEP officers were instructed to ticket performers and musicians for unlawful vending and unlawful assembly. Several performers were threatened with arrest.

Joe Mangrum making one of his signature sand creations in Washington Square Park on Friday. During the initiative in 2011 he received six tickets over several weeks, five in Washington Square Park and one in Union Square Park totaling $4,750 in fines.  

On Thursday April 25th,  DEP employees accompanied by a captain and plain clothes officers from the 6th Pct,  and Parks Department personnel surveyed the noise conditions  created by musicians playing in Union Square Park.  It was was quiet according to city sources.  

"The park is for everyone, for the general public, not for (a performer) whose sole purpose is making money," William Castro told the Daily News in 2011. He was referring to the street performance group Tic & Tac, who had been doing shows in Washington Square Park for more than 25 years.

Public outcry forced the city to eventually back down. Legal action was threatened but not before PEP officers wrote dozens of tickets. Within weeks of a December 2011 press conference held in Washington Square Park to denounce the crackdown, the city agreed to dismiss all summonses. Many of the performers and musicians who attended the news conference, organized by NYC Park Advocates with attorneys Norman Siegel and Ron Kuby, spoke of being harassed, some since the spring.

In a highly controversial move earlier that year, the city had attempted to prohibit performing near Central Park's Bethesda fountain as well.  A legally blind a cappella singer was threatened with arrest after the singer received multiple summonses. 

However in a 180-degree turn at last week’s meeting Manhattan Borough Parks Commissioner Castro claimed performers would in fact be allowed to do many of the things they had previously been ticketed for in 2011.

Castro insisted nothing will change. This "slight adjustment to the rules," he said, “is not going to affect the musicians to come to the park to play." 

Most people at Wednesday's meeting understood Mr. Castro's explanation as the city was not going to enforce the rules that the Parks Department just passed.  And Mr. Castro's assurances did little to allay the fears of many in the audience.

"It can be confusing, I understand that," he said.

"It's gotten some attention through confusion, which we understand."  

"If you come to play music, the guys and gals who sit on the benches who play, they sit on the grass, wherever, they stand right by the Garibaldi statue and play – all those places, the piano – you can play under the arch, you're fine," Castro explained.

"You don’t need a permit. You are not going to be told to leave the park. You're not going to get a ticket. You're fine. You can do that – that's not going to change.  You don't have to be x feet away from this or that or any of that jazz – you don't have to do that.

If you're putting the hat out and your case is open and people traditionally put money into it, you're fine. That's not a problem at all," Castro said.

He also stressed that performers were allowed to sell CDs without a permit, as long as they didn't have a display stand that people could trip over.

Castro said the rule change had nothing to do with Washington Square Park in mind though the distance restrictions would effectively put the park off-limits. "It's not because Washington Square was a problem, and we wrote this change or something," he said.

On December 19, 2011, Community Board 2 had convened a very well attended meeting where not a single person spoke in favor of the Parks Department's crackdown on performers, except for Castro. At the time he claimed the new rules were not meant to ban performers from soliciting donations.

So why have the new rule then? On Wednesday Community Board members asked Castro to explain why the 2011 crackdown occurred and who was responsible.

Following the well-worn path created by his ex-boss, former Parks Commissioner Adrian Benepe, Castro would not accept responsibility for the screw-up and instead offered an elaborate explanation that obfuscated the reality.

"I think it would be helpful to clarify what happened then," said former Parks Committee chair – and former Parks Department employee – Tobi Bergman.

"Someone went off basically and enforced the strict letter of the law or whatever – it's not even clear to me. It's been a few years, and I'd have to go back and take a look at it," Castro replied.

"Who was this somebody?" another board member asked. "Was it a PEP officer or . . . "

"A PEP officer, a PEP officer, yes, that's right," he said.

Instead of answering the question honestly, Castro portrayed the campaign by several city agencies against “expressive matter vendors" as the actions of a lone rogue PEP officer. Yet at the time, the most senior Parks Department officials were involved on this issue and included coordinating with the NYPD's 6th Precinct, according to several Parks employees intimately aware of the operation.

They say the crackdown had been sanctioned by then Parks Commissioner Adrian Benepe with the department’s General Counsel, Alessandro Olivieri, and it was implemented by multiple Parks officials, including Castro and senior Park Enforcement Patrol personel Mike Docket and Raymond Brown as well as PEP Inspector Robert Reeves, Deputy Inspector Edwin Rodriguez, and others – all of whom personally went down to Washington Square Park to supervise and survey the situation at various times during the initiative.

"Those orders came from them, not from us," said a PEP officer familiar with the plan who spoke on the condition of anonymity for fear of retribution. "They tried everything to get these guys, but nothing would stick. (The tickets) kept getting thrown out in court."

Another option discussed in meetings with the NYPD would use the city’s noise ordinance against performers. "They talked about getting an audio meter to measure the noise levels, but they never came through with it,” said the PEP officer. 

"It's much easier to throw green shifts under the bus than to take responsibly yourself,” said another officer, referring to the uniform worn by PEP officers.  

Other sources point out the crackdown came during Occupy Wall Street, when the city was operating on heightened security and responded in a knee-jerk reaction.

"Our officers had absolutely nothing to do with initiating this," said Joe Puleo, vice president of DC37's Local 987, which represents PEP officers. "They did what they were instructed to do and did so reluctantly. They were uncomfortable. Many felt they were violating these people's rights."

Instead of directing resources to prevent crime at a time when PEP head count was at record lows and crime in parks was rising Puleo said, the Bloomberg administration choose to make stopping performers a priority. "These orders came through management and the administration," he said.  "They thought they were in Giuliani mode."

During the 2011 crackdown, pianist Colin Huggins was issued nine tickets by several different officers for playing classical music in Washington Square Park. "It felt like he was trying to cover something up," Huggins said, contesting Castro's version of events. "Did he think anyone would believe that this was done by one officer?"

Huggins was one of the musicians threatened with arrest. He was approached near the park's fountain by Ray Brown, whom he described as supervising the initiative.

"He was calling my piano my 'art stand.' He showed me an illustration of a foldout table for vending and said the piano was the same thing. It was ridiculous. We went back and forth, and finally he said, 'You know the rules.’ He said, ‘If you don't leave now, we're going to arrest you, and no one likes to get arrested.’"

Huggins said that after a while the issuing of summonses was so routine "it got to the point where it was like, ‘Here's your ticket for the day.’ They would slip it under my sheet music so as not to interrupt my playing. The officers giving the tickets themselves were very nice."

Ray Brown was upset to see Huggins playing under the Washington Square Park arch. "He didn't like that," according to a Parks Department source.

Artist Joe Mangrum has been working in the park for years.

"The rules that I saw that were passed on April 2nd include any exchange of money is considered vending and that no vending can be done within fifty-feet  of a monument, no vending can be done within so many feet (5 feet) of a bench,  which basically  makes it impossible to do any of what you just said in Washington Square," Mr. Mangrum said addressing Castro at the Community Board meeting.

"Then you're confusing the issue because that's what is written, that's what's written in the rules, and you just  contradicted everything in that in what you just said," he said.   

Mangrum, who lugs 60 pounds of sand from Brooklyn to create his brightly colored designs on the ground, said he had been issued six summonses by at least three different PEP officers over two months in 2011. Five tickets were issued in Washington Square Park and one in Union Square Park, totaling $4,750 in fines.

"It was an Oscar-worthy performance," Mangrum said afterwards, noting Castro's lack of candor. "He threw PEP under the bus and took no responsibly for who was behind it."

In December, 2011, Kareen Barnes, a member of the group Tic & Tac, said he had been slapped with nearly $10,000 in summonses in two months -- but an Environmental Control Board judge dismissed all the fines after he argued his Constitutional rights had been violated. He said they city has given him and his brother dozens of tickets over the years, and all of the tickets have been thrown out in court.

State Assembly member Deborah Glick's chief of staff, Matt Borden, echoed the feeling of the crowd when he said that relying on one commissioner’s word wasn't in the best interest of the public, when the rules say something very different.

“The next Parks Commissioner, if they don’t have the same ethos as you folks, you might have to fight this fight again.”

He said something more binding and concrete should be adopted to reflect what Castro was representing. Several members of the Community Board recommended the same thing.

Read More:

Amidst Confusion, Community and Performers to City’s Parks Department: Commit in Writing — No “Performance Crackdown” at Washington Square, and all NYC Parks
Washington Square Blog - May 2,  2013

City Backs Down On Artists & Musicians In Washington Square Park

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

Parks Dept. Performance Summonses Put On Hold In Washington Square Park

A Walk In The Park - January 2, 2012

Crowd Denounces Parks Dept. Washington Square Park Performer Crack Down

A Walk In The Park - December 22, 2011

Don’t Ban The Washington Square Park Buskers - Editorial

The Vilager - December 17, 2011 

Washington Square Park Performer Crackdown Community Board Meeting

Walk In The Park - December 7, 201

Bloomberg $ Cracks Down On Performers In Washington Square Park Ticket Blitz

A Walk In The Park - December 4, 2011 - By Geoffrey Croft