Can a Community Garden Stop the NYU Expansion?

Neighbors and advocates argue that the university can't build on what should be considered official parkland By Nora Bosworth Greenwich Village and Soho are brimming with individuals who lead wildly different lifestyles, and who oppose New York University's gargantuan development project for reasons as distinct as their own personalities. Yet whether these people are managers of local liquor stores, self-pronounced "old hippie" gardeners, or brazen Soho residents who want to see more Armani suits and fewer "I love New York" t-shirts, they all feel an imminent threat to their quality of life in light of NYU's expansion plan. The construction, should it come to pass-which looks increasingly likely since its approval in the City Council in July 2012-will mark one of the greatest landscape shifts that the Village or Soho has seen in decades. Neighborhood organizations, politicians, incensed neighbors, and 39 faculty departments of NYU have united to resist the development. In September 2012, the eleven groups filed a lawsuit against New York City, accusing the City Council and the City Planning Commission, among other governmental agencies, of violating a number of City and State laws.The petitioners are being represented by Gibson, Dunn & Crutcher LLP.

The groups' case falls under Article 78 of the New York Civil Practice Law and Rules, which states that anyone may appeal a public agency's written decision if he or she believes the agency has acted illegally. One of the petitioners' primary claims centers on the assertion that the City agencies illegally alienated dedicated parkland without the approval of the State legislature.

Last Tuesday, February 26, petitioners against the city's approval of the expansion plan had their first court hearing, marking a pivotal moment in a development battle that has been boiling over since the university unveiled its proposal in 2010. The petitioners include Assemblywoman Deborah Glick, NYU Faculty Against the Sexton Plan, Greenwich Village Society for Historic Preservation, Historic Districts Council, LaGuardia Corner Gardens, and the Soho Alliance.

At the heart of the parkland alienation debate is whether or not four areas which the City gave NYU permission to build on - Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens, and the Mercer-Houston Dog Run - constitute "parkland."

If the Judge determines these spaces to be parkland, as the petitioners assert, then under New York's Public Trust Doctrine, the City violated State law by handing over the lands to NYU without first obtaining the State's approval.

In its defense, the City maintains that because the strips of land were never mapped as parks - meaning they were under the Department of Transportation's jurisdiction as opposed to the Park Department's - they did not count as parkland.

But a scathing affidavit from former Parks Commissioner Henry Stern throws the City's defense into serious question, calling their argument "shocking."

Stern writes that as Parks Commissioner he "repeatedly requested the transfer of these sites to Parks and to officially list them as such on the City Map."

He also asserts that, "There is one reason, and one reason only, why these parcels were not formally mapped: NYU obstructed the process through the efforts of its lobbyists and emissaries."

Moreover, Stern entirely rejects the City's assumption that a park must be "mapped" as parkland in order to be protected as such. He cites Central Park as a prime example of obvious parkland that was not mapped for many years.

"There is no need to specifically map such sites as parkland in order to demonstrate the intent to dedicate them as such," he writes.

Instead, he argues, a park's designation "flows from the publicly-accepted, continuous use over a period of time." Under this logic, the four spaces in question would clearly fit the requirements of parkland, as the neighborhood has used them as such for many years. He also cites the Parks Department's signage at the sites, its regular maintenance of the property, and its identification of the land on its website as parkland, as additional proof of its being parkland.

"These are parks, plain and simple," he says.

But NYU administration disagrees. "Just saying a site is parkland does not make it so," said Philip Lentz, the Director of Public Affairs at NYU in an email.

The two opposing sides of the lawsuit perceived the outcome of Tuesday's hearing quite differently. The plaintiffs requested both that a separate hearing be held focusing solely on the parkland alienation issue, and that the defendants procure documents, ("discovery," in legalese), that could prove Stern's assertions. Or rather, disprove the City's.

"[We] need expedited discovery to belie the Respondents' false claims that the City never intended or even attempted to treat these four sites as parks," the petitioners explained in their complaint.

In court, on February 26, the Judge decided that the City must '"show cause" why the petitioners' request for a hearing and expedited discovery on their "parkland alienation" claim should be dismissed, according to a press release issued by Gibson Dunn's public relations team.

While NYU issued a subsequent statement saying, "Nothing changes as a result of Tuesday's hearing," the petitioners hailed it as their "first legal victory."

Bo Riccobono, who is at once a member of NYU Faculty Against the Sexton Plan, Vice President of the Soho Alliance, and the Vice Chair of Community Board 2, explained the "victory" in its legal context.

"Most of the time discovery is not allowed, under article 78," he said in a phone interview.

Daniel Chirlin, J.D., one of the attorneys representing the petitioners, confirmed Riccobono's assertion in an email, explaining that such legal actions are "special expedited proceedings under New York law." Chirlin also celebrated the Judge's order, adding, "Our firm has had excellent success in obtaining discovery in these sorts of lawsuits.We are confident that the Court will grant discovery in this matter when it reviews all the arguments," at the next hearing.

The Village Backyard

One effect of the plan, if executed, is certain: the LaGuardia Corner Gardens, the longest running community garden in the City, will be no more. The building that would go up on Bleecker Street would cast the garden into shadow, killing off most, if not all, of its plants.

"While the remaining sunlight could support shade-tolerant species, the proposed Bleecker Building adjacent to the garden would cast between four and five-and-a-half hours of new shadow on the garden during morning hours throughout the growing season, jeopardizing the viability of shade-intolerant species," states the Environmental Impact Statement that the Department of City Planning composed.

It goes on to explain, however, that such a loss would not damage the neighborhood's character as the garden is not, "a defining feature ? with respect to uniqueness or overall characterization of the area."

Sara Jones, Chairwoman of LaGuardia Corner Gardens, begs to differ. A florist by trade, she has spent nearly twenty years tending to her community garden and is now steeling herself for the death of most of her plants, including her one hundred rose bushes--she counted them recently-- her vegetables and herbs, and the apple tree that is older than the garden itself. It has dozens of members and is open to the public seven days a week.

In his affidavit, Stern speaks fondly of the gardens, adding that as Parks Commissioner he told Community Board 2 that he "would embrace a formal transfer of LaGuardia Corner Gardens to Parks." He says it never happened because NYU, who he calls the "800-pound-gorilla in the room," pushed against it.

"We've made it a park for older people who are afraid to go into Washington Square Park," Sara tells me, pants smudged from a morning of tending to her plot.

"Where else can you go on a school trip to a garden farm? Not in this neighborhood," Sara says. In warmer weather she does school tours.

"It's like the Village backyard," another member, Susan Taylorson, chimes in.

But whether the "Village backyard" is also a park is still up in the air. The decision may very well determine the future for both Greenwich Village and Soho.

The next hearing will be held on March 15th, at the Manhattan State Supreme Court