Pavilion bistro lawsuit is back on the front burner

A rendering obtained by NYC Park Advocates showing the design for the seasonal restaurant that the city and Union Square Partnership BID would like to see in the park’s pavilion.
A rendering obtained by NYC Park Advocates showing the design for the seasonal restaurant that the city and Union Square Partnership BID would like to see in the park’s pavilion.

BY SAM SPOKONY  |  With a new appeal, park advocates are continuing their legal battle against a plan by the city and Union Square’s business improvement district to place a restaurant in the Union Square Park pavilion.

The opponents, led by the Union Square Community Coalition, believe that the pavilion, at the park’s north end, should remain public and open to recreational use — particularly for local children and seniors.

“They’re trying to seize parkland from the community, and it’s mind-boggling that the BID has been allowed to dictate public parkland policy by pushing for the restaurant,” said Geoffrey Croft, a member of NYC Park Advocates and a U.S.C.C. board member.

“Simply put, this is a universally hated plan. No one wants this restaurant.”

U.S.C.C. originally won an injunction against the proposed seasonal restaurant in January 2013, when a State Supreme Court judge ruled that the city needed state legislative approval, under the public trust doctrine, before “alienating” the public parkland to allow the restaurant.

But after an appeal by the city, that decision was overruled by the state’s Court of Appeals in June, allowing the restaurant plan to go forward.

Now, U.S.C.C. has countered with its own appeal, again claiming the city is violating the public trust doctrine.

Arguments in the case for the new appeal began Jan. 14. The lawyer representing U.S.C.C. explained that, while he doesn’t expect the court to grant a judgment in their favor, he hopes it will allow the case to be returned to State Supreme Court, where a full judgment against the restaurant plan could be achieved.

“We still believe in this, so naturally we’re following it through,” said former City Councilmember Carol Greitzer, who is also a plaintiff in the suit.

Aside from asserting the importance of maintaining public parkland, Greitzer, who was present during lawyers’ arguments before the June Court of Appeals ruling, criticized that court’s methods.

“I thought the appeals court judges asked some very peculiar questions, and they seemed more focused on the restaurant’s menu prices than they did on the alienation of parkland,” said Greitzer, who added that, at one point, one judge interrupted a lawyer’s argument to mention the price of a donut.

Previously, U.S.C.C. and its fellow advocates had also criticized that June ruling because of its unexpected brevity. The Court of Appeals’ decision for the city was only one sentence long, while the State Supreme Court’s original ruling was much lengthier and more detailed in its reasoning.

Meanwhile, as the new appeal has gone forward, the opponents are also attempting to raise the issue with Mayor de Blasio, who could potentially resolve the whole situation by simply killing the restaurant plan, which originated under former Mayor Bloomberg.

De Blasio, in his previous position as the city’s public advocate, actually opposed the plan. Last fall, after the appeals court allowed it to go forward, he sent a letter to the State Liquor Authority on behalf of U.S.C.C., urging denial of the restaurant’s request for a liquor license.

But now that he’s mayor, it looks as though de Blasio is supporting this Bloomberg-era decision — at least for now.

A source close to the situation, speaking anonymously, said there have, in fact, been some talks between the park advocates and de Blasio since he took office earlier this month, but that a face-to-face meeting about the issue has yet to occur.

“But it’s fair to say that de Blasio’s administration is well aware of the situation as it stands now,” the source said.

The Mayor’s Office did not respond to a request for comment.

The city’s Law Department, however, did respond.

“We appreciate the court weighing this important issue, and will await the ruling,” said Deborah Brenner, a city attorney, in an e-mail this Tuesday.

Later that day, after he had just finished the first day of arguments in the new appeal, the park advocates’ attorney, Sanford Weisburst, said he was confident in their case against the city.

“I think it went well today,” Weisburst said in a phone interview. “We were definitely able to make our points about why our complaint should go forward to the next stage.”

Greitzer also said the recent ruling on a community lawsuit against the N.Y.U. development project — which similarly involved the concept of parkland alienation — is giving them new hope.

“In addition to the N.Y.U. case, there has been increased activity regarding alienation suits in the city,” she said. “Another suit is pending in Nassau County. Looks like the public is beginning to assert its collective self on this issue!”