As illustrated by the case study described herein, limited recreational open space in public parks, particularly in congested urban areas, is under constant threat of being diverted into nonpark uses, including private commercial use. This diversion threat can occur within the context of a public/private agreement to develop facilities that detract from the park experience in the interest of economic development and revenue production.

In response to such threats to their local parks and public open space, individual and group stakeholders in these areas often organize their own coalitions to successfully challenge the legality of such governmental action in court. In these cases, the issue before the court is typically whether a particular public/private project or concessionaire agreement constitutes a proper and legal park purpose. An appropriate park purpose should produce or enhance a unique park experience within the context of a particular parcel of land. Accordingly, the focus must be on preserving the public use and character of a particular park environment, not the potential for producing revenue for local government.

Union Square Park
In the case of Union Square Park Community Coalition v. New York City Department of Parks and Recreation, 2013 N.Y. Misc. LEXIS 81; 2013 NY Slip Op 30020U (1/25/2013), plaintiffs (Coalition) challenged the City of New York and its Parks Department’s authorization of an open-air eating and drinking establishment by a private restaurateur in the Pavilion of Union Square Park. The Pavilion is the second generation of an open-air, colonnade structure that had anchored the north end of the Park since the 1800s. The Coalition included a few long-time neighbors, lunch-hour users of the park and a member of the New York State Assembly.

Manhattan’s Union Square Park consists of 3.6 acres of dedicated municipal parkland, a small “square” of land at the union of 14th and 17th Streets and Union Square East. In 1815, by act of the state legislature, this former potter’s field became a public commons for the city, at first named Union Place. In 1872, Frederick Law Olmsted and Calvert Vaux, by then well-known as the designers of Central Park, replanted the foliage.

Union Square Park is listed on the National and State Registers of Historic Places, and is a National Historic Landmark because of its significance in American labor history. New Yorkers know Union Square Park as the City’s “soapbox,” the trans-Atlantic equivalent of London’s Hyde Park’s “Speakers’ Corner.” The Park has historically been the start or end point for many political demonstrations. The North Plaza is often used by speakers and protesters. During the 2004 Republican National Convention, the City diverted protests from Central Park (ostensibly to protect the sod) to the North Plaza by denying a permit for the former.

The Pavilion has been a park fixture at its present site for more than 125 years. In 1882, it served as the reviewing stand for the nation’s first Labor Day Parade, and since then it has been a rostrum or backdrop for political and social activists such as Emma Goldman and Paul Robeson. It has often seen service as a bandstand.

The Pavilion and its environs have long been associated with childhood and recreational, particularly playground, use. An early map of Union Square, circa 1935, quaintly labels the Pavilion as “Band Stand and Children’s Playroom.” In 1983, an official-looking sign posted on the playground’s perimeter proclaimed “This Area Reserved for Children and Guardians Only.” The Coalition submitted letters recalling the Pavilion area as a magnet for local children’s playgroups in or about the 1970s. In more recent times, the Pavilion has been used for such exotic activities as tango lessons, a Portuguese film festival, mommy-and-me yoga, and at least one rock ‘n’ roll band.

The neighborhood surrounding Union Square is largely commercial in character, but in recent decades has seen a significant residential influx. There are currently more than 150 eating establishments, bars and markets within a two-block radius of the park, including 18 facing it directly. The neighborhood is short on playgrounds, with only two in the entire Community Board 5 District.

Since about 1997, for the last six or seven weeks of every year, Urban Space Holdings, Inc., pursuant to permits granted by the Parks Department, has operated a “Holiday Market” on the park’s South Plaza.

In 2004, New York City Mayor Michael Bloomberg announced plans to convert the Pavilion into a restaurant. In a March 21, 2005, memo, the Commissioner of the Parks Department updated the co-chairs of the Coalition on the Department’s plans. On April 21, 2008, six Coalition members claimed the planned conversion was an alienation of parkland that, pursuant to the “Public Trust Doctrine,” required State legislative approval.

A state court dismissed the Coalition’s lawsuit, ruling the claim was premature since any alleged injury from the alienation of parkland was mere conjecture and speculation because the proposed project was only in the planning stage.

Subsequently, the City proceeded with a “License Agreement” that authorized Chef Driven Market, LLC (“Chef”), a private, for-profit entity, to operate a seasonal restaurant in the Pavilion and a year-round food kiosk nearby. The City claimed the kiosk and restaurant would “together occupy less than 2.1 percent of the park, and less than 8.2 percent of the North Plaza.” Since the Pavilion was “open air,” the proposed restaurant would effectively be a half-year operation in warmer weather, precluding other warm-weather uses of the facility.

The restaurant would seat some 200 people and operate from April 15 through October 15, 7 a.m. until midnight. After dinner hours the restaurant would become something of a nightclub. An “outbuilding” would house restrooms, and underground space, complete with electricity, running water and ventilation ducts, would house the kitchen. The restaurant and bar would spill out onto the North Plaza, where some or all of the tables would be for paying patrons only. The operator would have the right to host “special events” (i.e., private functions), closing the Pavilion even to members of the public willing to pay for food and drink.

Moreover, as a practical matter, the proposed restaurant was also contingent upon Chef’s obtaining a liquor license for the establishment. In the proposed restaurant, the bar area was envisioned for the south side of the Pavilion, adjacent to the children’s playground.

Under the agreement, Chef would be obligated to pay the City an annual fee, starting at $300,000 for the first year and rising annually to $453,777 in the 15th year, or 10 percent of annual gross receipts, whichever was greater. As required by the City Charter, this money would go to the City’s general fund, rather than to any particular or general park purpose.

In light of the Concession Agreement, the Coalition renewed its claim that the City’s action “alienates dedicated parkland for a nonpark purpose without State legislative approval.” In so doing, the Coalition argued “the Concession Agreement violates the Public Trust Doctrine because it is a lease, and thus per se an alienation of dedicated parkland, whether or not for a park purpose, without State legislative approval.” The Coalition, therefore, requested a court order “restraining defendants from altering the Pavilion to accommodate a restaurant and/or bar, from granting any further approvals for the project, and from actually operating such an establishment, all unless the State Legislature approves the plan.”

Park Purpose
In general, the court noted that “[t]he antecedents of legal protection of parkland have been traced at least as far back as ancient Rome.”

A park is a pleasure ground set apart for recreation of the public, to promote its health and enjoyment. Parks facilitate free public means of pleasure, recreation and amusement and thus provide for the welfare of the community. They must be kept free from intrusion of every kind which would interfere in any degree with their complete use for this end.

Moreover, in New York, the court acknowledged that the “municipal sale of public parkland without State legislative approval has long been prohibited.” Under the “Public Trust Doctrine,” the court noted that “parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for nonpark purposes.” Accordingly, without “State legislative approval,” the court found “parkland cannot be (1) converted to any nonpark purpose, or (2) leased for any purpose, even a park purpose.” As a result, since the property at issue was “a park impressed with a trust for the public,” Union Square Park “could not without legislative sanction be alienated or subjected to anything beyond a revocable permit.”

According to the court, “[t]he letting of park property for restaurant purposes does not in and of itself constitute an improper use of such property.” On the contrary, in determining “whether a particular restaurant at a particular location in a particular park serves a park purpose,” the court would consider “the choice of location and type of facility.”

“Park purpose” is an esoteric concept rather than a set formula, and divining it is an art rather than a science. Some uses are obviously more “park” than others, but on what side of the “park-versus-nonpark” dividing line does a particular use fall?...[S]ome uses clearly are proper; some uses clearly are not; and some uses depend on the particulars. Furthermore, all uses could be plotted on a spectrum, from, at one end, unvarnished, pristine nature, undisturbed by civilization, to, at the other end, private pecuniary interest and common-denominator commercialism.

In making this determination, the court stated further that one “obvious criterion” would be whether “the use is open to all” in reality, or as a matter of law. In other words, municipally-owned property that has been dedicated to use as a public park is held in trust for the public at large. As a result, absent an expressed legislative authority to do so, the court would prevent a municipality “from taking action which operates to exclude the public at large from such a public park” or allow the park to be “diverted to other uses.” Moreover, the court found an “exclusionary policy is as much a diversion of use as would be the case if the municipality changed the use of the park or sold it.”

Park Restaurant
According to the court, a park restaurant could fulfill a park purpose as either a “refreshment” facility or a “dining” facility. A refreshment facility would be one in which “one can quench thirst and/or hunger after several hours of ball playing or hiking or just soaking up the sun, without having to leave the park’s environs.”

[I]n the control and management of the public parks of a great city it is perfectly proper to furnish not only such innocent amusements as may enhance the pleasure of those who resort to the parks, but such opportunities for rest and refreshment for themselves and their animals as may be required.

In contrast, a dining facility would fulfill a park purpose under circumstances in which “one can dine al fresco [i.e., outdoors] in a pastoral setting, simultaneously enhancing the meal and one’s appreciation of the park.”

In the opinion of the court, the proposed restaurant was not a “refreshment” facility, given “the small size of Union Square Park, considerably too small for ballfields or hiking trails, and the ready availability of refreshment right across the street.” As a result, “based on the general ambience to which the proposal aspires,” the court would characterize the proposed restaurant as a “dining” facility. In this particular instance, the court found the proposed restaurant facility would not enhance “the appreciation of the park.”

Nobody seated at a table or bar in the Pavilion would be “surrounded by trees.” Rather, they would be surrounded by the columns and walls of the Pavilion, and outside diners would be surrounded by the North Plaza pavement. Even Chef’s dramatic “artist’s renditions” and floor plans show a setting that is not bucolic, unless a few trees off in the distance makes a setting bucolic…

At best, by craning their necks, patrons might see some treetops. Inside diners looking north would see a paved plaza, beyond which would be traffic and the high-rise commercial buildings fronting the north side of 17th Street. Diners looking east or west would not see much of anything, other than the Pavilion’s thick rectangular supports, with a slice of green in between, beyond which would be typical Manhattan buildings. Diners on the plaza part of the proposed restaurant would see hardly any foliage at all.

Moreover, the court noted that the propriety of a dining facility in a public park would be doubtful “if the restaurant was intended to provide food and drink at luxury prices and thus be restricted to the elite, rather than open to broad segments of the public.” According to the court, under the Concession Agreement, at least “in theory, paupers, as well as plutocrats, could patronize the place” based upon the following pricing scheme:

Initially, food prices would top out at $33.95 for entrees, $14.95 for appetizers and desserts, and $17.95 for eggs at brunch, with increases tied to the Consumer Price Index (or Parks Department approval). Plaintiffs claim that a full meal could easily cost $100 per person. At the low end, breakfast and brunch bagels and croissants (or would it just be coffee or tea?) would be available for as little as $1.95 or $2.95.

That being said, the court found “plaintiffs have proved beyond a peradventure of a doubt that a restaurant is not necessary to insure that park participants do not go hungry or thirsty.” Further, given the surrounding urban environment, the court found the characterization of the “one block wide” Union Square Park as a “tranquil” park to be “dubious.”

Unique Park Experience?
As noted by the court, both sides agreed that one test of “park purpose” is “whether the facility concerned offers substantial satisfactions to the public, which would only be possible in a park setting.”

Most people would say that eating dinner in a restaurant within a park offers “substantial satisfactions.” Of course, eating dinner in a restaurant anywhere offers “substantial satisfactions.” So the key phrase is, “only be possible in a park setting.”

Accordingly, as characterized by the court, the specific issue was, therefore, “whether this particular restaurant, in this particular setting, in this particular park, offers a ‘park meal,’ or just ‘a meal in a park.’” In the opinion of the court, if this case was allowed to proceed to trial, the Coalition would likely be able to demonstrate that “a meal in a restaurant in the Pavilion, however lovely, would be a generic experience, not a unique park experience.”

Even assuming Pavilion diners could see trees, which is questionable, the oxymoronic “semi-unique” would be a more accurate description; diners at outdoor cafés across Union Square Park West have a fine panoramic view of the park’s wonderful foliage, albeit at a somewhat greater distance and separated by a lane or two of traffic.

In contrast, the court found the Coalition’s vision of “a Pavilion sans restaurant” to be highly “persuasive” as a more appropriate “park purpose.”

[T]he Pavilion could be used for ping pong, chess, checkers, craft and art work, table games, dancing and practice for the presentations to the community, community meetings, holiday and special programs, film screenings, tutoring, musical programs, or perhaps an information resource center for young and older residents related to health and financial issues, and other special needs support for senior citizens and people with disabilities.

As a result, if the Pavilion restaurant became a reality, the court found “all of these possible community uses will be displaced by a commercial bar and restaurant operating from 7 a.m. to midnight every day of the week” during the six-month proposed restaurant operating season.  Moreover, the court characterized as “problematic” the City’s assertion that “the community-based activities can be moved elsewhere in the park are problematic, given the lack of other sheltered space and the multi-faceted resources that a building can provide.”

Based on “all the available evidence,” the court found some truth in the Coalition’s contention that the City was “attempting to create a high-end destination restaurant, as opposed to a public amenity that will serve ordinary park visitors.” In so doing, the court noted further that “Pavilion restaurant’s proposed prices would make broad swaths of the public think twice before entering.”  As a result, the court held the proposed restaurant would not serve a “park purpose.”

Positioning a restaurant within a large park increases the uniqueness of the experience and decreases the disruption of more traditional park purposes. Here, that equation is reversed…

All things considered, including the small size and large crowds of Union Square Park; the commercial character of the encircling neighborhood; the plethora of nearby restaurants of every description just beyond its perimeter; the prominence and importance of the Pavilion; the restricted views therein; and the operating hours and prices to be charged by the proposed restaurant, and based on the record at this stage of the litigation, this Court finds that plaintiffs likely will succeed in proving that the proposed restaurant would be “in” the park, but not “of” the park, would be a “park restaurant” in name only…

According to the court, “[t]he threatened alienation or alteration of parkland in and of itself is recognized as irreparable injury warranting the grant of temporary injunctive relief,” i.e., a court pre-trial order prohibiting the project. Moreover, the court found an injunction is an appropriate remedy because “[m]oney could not adequately compensate plaintiffs and other park users; you do not lose money by losing parkland.” The court, therefore, concluded that the Coalition was “entitled to a preliminary injunction” blocking the proposed restaurant until the issue could be resolved in a full trial.

Holiday Market
In addition, the Coalition had alleged “the Holiday Market on the South Plaza violated the Public Trust Doctrine because it alienates dedicated parkland for a nonpark purpose without State legislative approval.” Accordingly, the Coalition had also sought a court order to “enjoin the use of the southernmost area of the park for the Holiday Market.”

As described by the Parks Department’s Director of Concessions, in the Holiday Market, vendors sell “handcrafted items, art, unique gifts, fine crafted jewelry and related items, and holiday-related food and beverage items such as holiday cookies and apple cider.”

Starting a week before Thanksgiving and continuing for the next six weeks, a sizeable part of the south plaza...is turned into a shopping mall. An assemblage of booths the size of a small tent city is erected, and hawkers sell incense, scarves, ornaments, soaps, rings, bracelets, pendants, teas, candies, sweaters, hats, dresses, gloves, puzzles, toys, housewares and other merchandise…The City even removes tables, chairs and otherwise permanent park benches to accommodate this commercial activity.

While acknowledging that the “definition of a park” may have passed beyond the “pastoral vision” of traditional parks designed by Frederick Law Olmstead, in the opinion of the court, “it has never included shopping for consumer merchandise.” In this particular instance, the court found the Holiday Market was “the very antithesis of park use.”

It is pure, crass commercialism, which has as its only excuse for usurping public park space that it brings at least $1 million to the City every year…Whether the Holiday Market sells “unique gifts” or, rather, garden-variety items “sold in thousands of other places” is irrelevant; nothing in the definition of “park” encompasses a merchandise mart, whether it is selling baubles and trinkets or high-end, handcrafted handbags…Photographs of the Holiday Market in full swing depict a scene more like an outdoor Walmart on Black Friday than dedicated parkland…While the Holiday Market use of the park is temporally and spatially limited, it is hardly de minimis [i.e., insignificant].

The court, therefore, denied the City’s motion to dismiss the Coalition’s claim that the Holiday Market was an inappropriate use of Union Square Park. In so doing, the court acknowledged that the Coalition, not the City, was more likely to succeed on the merits of this particular claim if it proceeded to trial.

Conclusion
Having found sufficient evidence to indicate that the proposed restaurant was not a park purpose, the court granted the Coalition’s motion for a preliminary injunction. In so doing, the court declared that the City was “hereby restrained from altering the Union Square Park Pavilion to accommodate a restaurant and/or bar, from granting any further approvals to do so, from implementing the March 26, 2012, ‘License Agreement’ and from actually operating a restaurant and/or bar in the Pavilion, or a food kiosk nearby, all without State legislative or court approval.”

For a different perspective on a similar situation, and a different result, check out: “The Restaurant in Central Park: A Diversion Case Study” which appeared in the May 1985 Law Review column in Parks & Recreation.

See also the “Union Square Community Coalition” website.

Also, you can get an idea of Union Square Park in several YouTube public videos (search term “Union Square Park”): “Union Square Residents Threaten Lawsuit over Park Restaurant,” “Video Tour of New York City’s Union Square: ‘All Along Broadway’ Series,” “Reverend Billy: Publicizing The Privatizing At Union Square,” “SAVE UNION SQUARE — Banner Drop” and “Union Square Park, New York City.”


James C. Kozlowski, J.D., Ph.D., is an attorney and associate professor in the School of Recreation, Health and Tourism at George Mason University. Webpage with link to Law Review articles archive (1982 to present): http://mason.gmu.edu/~jkozlows.