Volume 76, Number 42 | March 14 - 20, 2007

Court sinks fountain case, says Wash. Sq. renovation can start

By Albert Amateau

The Appellate Division last week dealt a nearly fatal blow to the group seeking to stop the Department of Parks and Recreation proposal to redesign Washington Square Park.

The five-member Appellate panel on March 8 unanimously reversed State Supreme Court Justice Emily Jane Goodman’s decision that part of the redesign relating to the Washington Square fountain and plaza had to go back for a new review to Community Board 2, the Landmarks Preservation Commission and the city Art Commission.

However, the plaintiffs said they intend to ask the Appellate Division for leave to appeal further to the Court of Appeals, the state’s highest court.

Goodman on Aug. 2 of last year had agreed with a group of Washington Square residents including Jonathan Greenberg and Luther Harris that the Parks Department failed to disclose complete and accurate information necessary for a review of the park redesign. Specifically, Goodman said, a decrease in size of the fountain plaza by more than 20 percent and the increased capacity of fountain jets to shoot 45-foot water plumes was not adequately disclosed.

Opponents of the Parks Department’s Washington Square redesign contended that the design compromises the fountain and fountain plaza’s long-standing use for spontaneous public gatherings and performance.

However, while the Appellate judges agreed that Community Board 2 was entitled to the information, they ruled that Parks had indeed provided it.

Speaking on Monday, Greenberg faulted the Appellate ruling, saying the city’s assertion that it provided material information on the fountain and plaza design, “was simply not true.” Greenberg and his fellow plaintiffs are planning to appeal to the state’s highest court, but must ask for leave to appeal because the Appellate panel ruled unanimously against them.

Greenberg said the Appellate judges’ finding every issue of fact in favor of the city was “unusual.” While the panel found that Parks’ presentation to the community board in April 2005 had scale drawings of changes to the fountain plaza, no specific measurements were provided.

“I was at every meeting and Parks never left its drawings to be examined. They showed them and took them away,” said Greenberg.

He insisted that the Parks Department defense of the case had a gaping hole because it didn’t present sworn affidavits from Manhattan Parks Commissioner Bill Castro and George Vellonakis, the architect of the Washington Square Park redesign, with statements that they had presented full information about the plaza and fountain design.

The case also involves an agreement in 2005 reached with Parks by Councilmembers Alan Gerson and Christine Quinn (before she became City Council speaker) that the renovated fountain plaza would be no less than 90 percent of its present size — meaning a reduction of no more than 10 percent. The actual reduction in fountain plaza size is more than 20 percent, according to the Parks Department and more than 30 percent according to opponents.

While the Appellate judges noted that the Community Board 2 Parks Committee in October 2005 opposed any reduction in the plaza’s size, they pointed out that the full board reaffirmed support for the park’s redesign without including the committee’s objections or incorporating the Gerson-Quinn agreement.

The Appellate panel agreed with the city’s position that neither the precise decrease in size of the fountain plaza nor the maximum height of the fountain stream were material aspects of the plan and that in any case, both aspects were adequately disclosed.

But the panel rejected the city argument that the Parks Department was not legally required to submit renovation plans to the community board for review because the renovation does not involve “use, development or improvement” of the park. The Appellate judges found that the renovation clearly involves use and improvement and does require review.

But the judges reaffirmed that the community board role in the review is merely advisory, and held that the plaintiffs “can point to no legal requirement that the precise measurements of the plaza or fountain strength is required.”

Arlene Boop, the plaintiffs’ attorney, said she still had hopes for the success of her case, even though appeals are “always an uphill battle.” Nevertheless, she said that the Appellate panel’s upholding the review powers of the community board was important.

In fact, Greenberg said the C.B. 2 October 2005 resolution was approved by the board with the Gerson-Quinn agreement in mind, though it wasn’t actually contained in the resolution.

“That resolution was voted on with a sense of reliance that there was a Gerson-Quinn agreement to mitigate the transformation of the central plaza,” Greenberg said. “With an Orwellian stroke of the pen, the Appellate Division substituted a fiction for what we all know happened and are the facts of the case.”

The Appellate Division also noted the Gerson-Quinn agreement “was not signed or acknowledged” — something Greenberg and others had always been anxious about.

“If Castro had signed that document, this case would have been decided differently,” said Greenberg. “Instead, they’re saying this agreement did not exist.”

Arthur Schwartz, chairperson of the C.B. 2 Parks Committee from 2005 until the present and current head of the Washington Square Park Task Force, said he was disappointed at the Appellate Division reversal.

“But I’m encouraged by the fact that the court, unlike the city, was not dismissive of the role of the community board,” Schwartz said. In any case, “The ruling is hardly the end of the public effort to monitor the design,” Schwartz said.

“The Parks Department made a commitment to Speaker Quinn and Councilmember Gerson to work through all the details of the project with the Washington Square Task Force,” Schwartz said. Schwartz added that he and C.B. 2 Chairperson Maria Derr included in the task force a broad representation of the community and elected officials.

“We intend to review all plans with the Parks Department before they go out to bid and to bring about every needed, plausible design change so that Washington Square Park can continue to exist as a people’s park,” Schwartz said. The task force will be transparent and open to allow all points of view to be heard and the details of the plan will not be kept secret, Schwartz promised.

Gerson said the Appellate Division ruling was “predictable” but called on the community to come together and insist that the Parks Department move forward in accordance with the agreement that he and Speaker Quinn reached with the department more than a year ago.

Nevertheless, Gerson noted that the City Charter gives the mayor and the Parks Department but not the City Council or the community board discretion and control over park designs. He said he and Quinn were able to use the Council’s budget leverage to reach their agreement with the Parks Department.

Gerson said that more lawsuits are not the way to go because legal delay would drive up the cost of repair and reconstruction.

Two other environmentally based lawsuits against the Washington Square Park project are pending in State Supreme Court. One was filed by Greenberg and Harris and the other was filed by ECO (Emergency Coalition Organized to Save Washington Square Park) and a group of park users including Jessie McNab, a Westbeth resident, Daniel Weinberg, a New York University student, and Jerry Sitner, 84, who lives a block east of the park. Neither of those actions has been assigned yet to a judge.

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