Volume 77 / Number 29 - December 19 - 25, 2007
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Talking Point

Washington Square lawsuits: What was won and lost

By Jonathan Greenberg

It has been nearly three years since I wrote a talking point here in The Villager, asking that before the Parks Department radically redesign Washington Square Park, it first spend one-tenth of 1 percent of its proposed budget to survey what Downtowners think needs to be changed, preserved or repaired in the park.

Far from consulting the community before transforming the most uniquely successful public-gathering park in the United States, the Parks Department did the opposite. From the beginning, city officials have treated the required review process as an obstacle to the predetermined, nonnegotiable central elements of their plan. These core elements include the shrinking, by at least 23 percent, of the most acclaimed public plaza in America, the raising of it to street-level grade, the imposition of a 4-foot-high fence for the first time in the park’s modern history, the narrowing of the park’s walkways, the removal of every one of the park’s quiet seating areas, and the unnecessary three-year closing of much of the park for a redesign, instead of leaving it open during much-needed repairs.

I have now been the lead plaintiff in two rounds of lawsuits with the Parks Department over the redesign of Washington Square Park. The reason this went to a court of law instead of remaining in the court of public opinion, at the community board, or at our City Council, is because through their refusal to disclose specifics of their plan to the public, our Parks commissioner and billionaire mayor let us know that they could not care less about what We, the People — remember us, “public officials”? — wanted to do with Washington Square Park.

This plan has been sold through a deceptive marketing plan that portrays transformative redesign as repair, and argues that Village crazies like me are holding them back. In an attempt to rewrite history, the city’s latest statements are that the city won all four lawsuits against it, and that the plan has been twice approved by Community Board 2.

This is far from the truth, and it now seems like a good time to make clear what these lawsuits have achieved.

It was only in response to the two rounds of lawsuits — the first, over Parks’ process and disclosure, the more recent one, about impact on the environment and functionality of the park — that the city disclosed in writing what its intentions were for the park. In its response to our first suit, one year after the presentation of the redesign plans to C.B. 2, Parks stated that it measured the change in size of the central plaza for the first time, and found that it would be 23 percent smaller than the current size. Similar disclosures about plans were first made during the second round of environmental lawsuits.

It was these disclosure of facts that led members of C.B. 2 to overturn the board’s approval. Last May, in a staggering 39 to 5 vote, C.B. 2 reversed its initial approval. Parks continues to pretend this never happened.

And then there have been some important points in the judicial decisions that have not been reported, but which will help protect some traditions in the park, and could also serve as precedent for other community-based lawsuits for decades to come.

In response to our first lawsuit, the city trotted out a legal argument that as an executive branch city agency, the Parks Department had discretion as to how much to tell the community board about its plans for the park, or even, to tell it nothing (in essence, to deceive it — see our short Web video proving this at www.openwsp.com), because a community board’s power is merely “advisory.”

In her July 2006 ruling, State Supreme Court Justice Emily Jane Goodman found that not only did the city have an obligation to disclose its plans, but that it did not fulfill that obligation, and had to re-present real plans to C.B. 2. Goodman wrote: “I conclude, on the basis of this record, that essential aspects of the Parks Department’s plans for the fountain and the fountain plaza, which could have a substantial impact on the historic role of Washington Square Park, were not adequately revealed to Community Board 2 or the Landmarks Commission, precluding the exercise of their roles in the oversight process…”

Many months later, New York State’s Appellate Court, in an unusual and, in my view, political move, overturned Goodman’s findings of fact and said that vague, unmeasured drawings presented to C.B. 2 somehow constituted adequate disclosure. But even the Pataki-appointed Appellate panel came out strongly against the city’s disregard of C.B. 2, ruling, “Initially, we reject the city’s threshold argument that the Parks Department was not legally required to submit the renovation plan to Community Board 2 for review,” and ruled in our favor that the City Charter requires a review for a plan like this.

Also unnoticed in the coverage of State Supreme Court Justice Joan Madden’s denial of our environmental lawsuits were the unusual terms with which she conditioned her decision. Madden ruled: “In finding that the E.A.S. (Environmental Assessment Statement) is rationally based, this court presumes that the Parks Department’s clear and unambiguous representations, both in the E.A.S. and in this proceeding, that the adjacent lawn areas are to be used as grassy extensions of the fountain plaza and will be open and accessible for political protest and artistic expression are true, and that both the Parks Department and the City will be bound by these representations in the future.” Madden continued: “Prohibiting access to the lawn areas would be directly contrary to the Parks Department’s representations in the E.A.S. and to this court that the lawns will be ‘open’ and that ‘open space’ in the park includes the lawns.”

Unlike Judge Goodman’s ruling, Madden’s conditions will not be overturned on appeal. So, in order to win this case, the city has had to make assurances in writing that it has not previously been willing to make to our community board or our City Council officials. Should Parks deny such open gatherings in the park in the future, Madden’s ruling leaves open the recourse of taking the city to court. As a result, our new park is likely to be a more open space than it would have been without our lawsuits.

So what has been won in these lawsuits? A judicial pronouncement that the Parks Department is legally obliged to submit its plans to the community; the disclosure of information previously withheld; and a legal edict that Parks might maintain the open and accessible nature of Washington Square for political and artistic expression.

What will be lost? At the very least, two or maybe four years’ use of our park while it needlessly becomes a construction zone, time when thousands of songs will not be sung, during which time some of our children will grow past playground age. In addition, I fear that our park will be transformed from the heart of bohemian Greenwich Village into a picture-postcard park, a park that looks pretty from a few Fifth Ave. penthouses and to people passing by, but which fails to achieve that quintessential experience of the greatest of public spaces: It will cease to be a magical place to hang out.

 
Greenberg, a local parent, was lead plaintiff in two Greenberg vs. City of New York lawsuits and is founder of Open Washington Square Park Coalition. He has lived near Washington Square Park for more than 30 years.


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