Union Square Restaurant Put on Hold by Judge [Update: Appellate Division Rules in Favor of Planned Restaurant]

The City was forced to halt construction on the pavilion at Union Square Park in 2011. Photo: Jonathan Reingold.

The City was forced to halt construction on the pavilion at Union Square Park in 2008. Photo: Jonathan Reingold.

See below for update.

Neighborhood coalition sued Parks over proposed plan to open restaurant in Union Square. Union Square is comprised of 3.6 acres of dedicated municipal parkland, stretching three blocks in length and one block in width. Union Square Park’s pavilion has hosted a myriad of political events and recreational activities for over a century. In 2004, the City announced its plans to open a restaurant in the pavilion. In April 2008, the Union Square Community Coalition (Coalition) obtained a temporary restraining order proscribing the City from undertaking any construction activity associated with its pavilion proposal. (See CityLand’s past coverage here). In March 2009, the New York Supreme Court dismissed the Coalition’s lawsuit. The pavilion was subsequently renovated and is currently being used by the City’s Department of Parks and Recreation as office and storage space.

In March 2012, the City signed a licensing agreement with Chef Driven Market, LLC, (Chef) authorizing Chef to open a 200-seat seasonal restaurant in the pavilion. The restaurant would operate from April 15 through October 15 and boast entrée prices topping over $30. The agreement required Chef to pay the City an annual fee of $300,000 for the first year, increasing to the greater of either $457,777 or 10 percent of its annual gross revenues in the 15th year.

In May 2012, the Coalition filed an article 63 petition seeking a preliminary injunction against the City from enforcing its licensing agreement, alleging that the agreement violated the Public Trust Doctrine for two reasons: (1) it alienated “dedicated parkland for a non-park purpose without State legislative approval”; and (2) it was a lease, which is “per se an alienation of dedicated parkland” and required legislative approval, irrespective of whether or not it served a “park purpose.”

Rendering of Union Square renovation proposal. Image: Michael Van Valkenburgh Associates.

Rendering of Union Square renovation proposal. Image: Michael Van Valkenburgh Associates.

On January 8, 2013, Justice Arthur F. Engoron, of New York Supreme Court in Manhattan, granted a preliminary injunction, holding that the City exceeded the scope of its powers by entering into the licensing agreement with Chef. With regard to the Coalition’s first claim, the Public Trust Doctrine prohibits parkland from being alienated for non-park purposes or leased for any purpose, without State legislative approval. To achieve a park purpose, a park restaurant could fall into either the “refreshment” or “dining” paradigms. The “refreshment” paradigm is a facility where one can get something to eat or drink after several hours of hiking or ball playing without having to leave the park. The court ruled that Union Square’s small size, in addition to the plethora of dining options available directly across the street, precluded the “refreshment” paradigm. The Coalition proved that the restaurant was not necessary to ensure park participants would not go hungry or thirsty. The “dining” paradigm is a facility where the aesthetic associated with al fresco dining simultaneously enhance the meal and an individual’s appreciation of the park. Here, the court determined that the City overstated its description of the park as a “tranquil” environment with “lush, verdant foliage.” Although the park’s visitors are grateful for the pastoral landscape, it is situated only half a block away from some of the City’s busiest thoroughfares. The court referred to the City’s proposal as generic, contrasting it with Central Park’s Boathouse Cafe – a restaurant within a large park which creates a unique park experience and diminishes the disturbance of traditional park purposes. The current era of retrenchment and austerity supports “modest, toned-down park uses.”

With regard to the Coalition’s second claim, even a superficial evaluation of the licensing agreement supports the assertion that it was in fact a lease requiring State legislative approval. It was clear that the goal of both the City and Chef was to transfer possession of the pavilion for a 15-year term in hopes of earning large profits.

In addition to granting the preliminary injunction against the City, the court ruled against the City’s motion to dismiss the Coalition’s challenge. The court went on to state that if they were to rule on summary judgment for either side it would not favor the City.

Union Square Park Community Coalition, Inc. v. NYC Dep’t of Parks and Recreation, 2013 N.Y. Slip Op. 30020U (N.Y. Cty. Sup. Ct. Jan. 8, 2013) (Engoron, J.).

Update: (6/19/2013) – On June 18, 2013, the First Department unanimously reversed the lower court’s decision. The court ruled in favor of the City’s appeal and stated that the “restaurant does not violate the public trust doctrine, since it is a permissible park use and the concession agreement is a revocable license terminable at will, not a lease.”

In a press release issued by the NYC Law Department, Corporation Counsel Michael Cardozo said, “this decision correctly recognizes that the City Charter gives the Parks Department discretion to include restaurants in parks and that they are appropriate uses of parkland.”

Chef Driven Market, LLC is “thrilled to move forward with serving high-quality, environmentally-friendly, and affordable Greenmarket-based food.” Jennifer Falk, of the Union Square Partnership was also gratified with the Court’s ruling, “this terrific new amenity will enliven the park, making it even more inviting and safer for all visitors.”

Geoffrey Croft, of the Union Square Park Community Coalition, commented that “this issue is a matter of public importance to all New Yorkers who care about park land. Justice Engoron’s decision was detailed, thoughtful and took into account the facts and circumstances of this particular case. So it was even more shocking that the Appellate Division reversed in a decision that is essentially just one sentence long. The brevity calls into serious question the strength of the decision. We believe the reversal is wrong on the merits.” Croft went on to add, “It is clearly not a park purpose to allow a high-end restaurant in an area with the least of amount of playground space and the highest concentration of eating options in the entire city.”

The Coalition is weighing whether to appeal but no determination has been made.

Union Square Park Community Coalition, Inc. v. NYC Dep’t of Parks and Recreation, 2013 N.Y. Slip Op. 04544 (1st Dep’t June 18, 2013).

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