Taking aim at a lawsuit: Allan Reiver in front of his original, fully functional Mangels Coney Island shooting gallery in his own gallery, which is on Elizabeth St., just north of the Elizabeth Street Garden. Photo by Lincoln Anderson
BY LINCOLN ANDERSON | Saying the Friends of Elizabeth Street Garden “weren’t being aggressive enough” in their efforts to save the threatened Little Italy / Soho green oasis, a three-member group recently formed their own nonprofit and have taken control of the space. They include Joseph Reiver, the son of gallery owner Allan Reiver — who originally created the garden nearly three decades ago.
The new group, Elizabeth Street Garden, Inc., plans to sue the city to stop an affordable housing project slated for most of the half-acre garden site. Its board members say the Friends were unwilling to join their lawsuit.
In an interview with The Villager this week, Allan Reiver — who is not on the new E.S.G. group’s board — said he and the three board members are looking at numerous legal angles.
“We’re pursuing litigation,” he said. “I’ve retained counsel; they’re doing their research, speaking to all the local businesses that will be affected if the garden is destroyed. Many of the business owners said they would not have moved here if the garden was not here.
“Prior to the garden, the block was primarily industrial. There was a large-scale bakery, La Rosa, on the block. Frankie DeCarlo, owner of Peasant — one of the top restaurants in New York — said he would not have moved there if not for the garden. He was one of the first restaurants to open on the block.”
In addition to the garden’s positive impact on the area, Reiver said, his legal team has also discovered that the site has a very long history of public use as a community space.
“Through public research, we have found that the site was a place of public gathering for close to 200 years,” he said, “where the site was used as a school playground and another kind of school-gathering-related spot before that.”
Reiver, who operates a gallery just north of the garden lot, has held a lease from the city for the outdoor space since 1991, renting it for $4,000 a month.
As Reiver, who is in his mid-70s, told The Villager back in October 2015, when he first arrived on the block in 1989, he lived across the street from the then-garbage-strewn vacant lot, and — sick of looking at the eyesore every day — resolved to clean it up. After getting approval from Community Board 2 and the city, he landscaped the spot and added statues and monuments that he had collected from estates. He sold two or three of the sculptures per year, but says the sales were just incidental — that he really just intended to beautify the block, and by extension, the surrounding neighborhood.
‘Park statues here’
Area residents back then liked his idea, since the other alternative that the city was floating was for the spot to be a parking lot.
Reiver recalled, “There’s an old woman, over 100 years old now. She lives on Prince St. At the end of the community board hearing in 1990, she stood up — she was probably 75 then, she had a heavy European accent — and said, ‘Statues do not make noise,’ and she sat down, and everyone applauded.”
Neighbors had also opposed an earlier city plan to build a 600-seat school on the vacant lot. Previously, a school stood on the site of the current Little Italy Restoration Apartments (LIRA) affordable housing development, on Spring St., while the garden lot was occupied by the school’s playground. An even earlier plan had called for a new 1,200-seat school on both the former school and its playground.
“In the land disposition for the LIRA sale,” Reiver noted, “the other lot [where the garden is now] was supposed to be used for recreational purposes. The front part was sold to LIRA and the rear part was to be reserved for recreation.”
Fast-forward to 2012 and a new generation of local residents realized the statue-filled now-threatened lot — which Reiver most often left closed to the public — was, in fact, city-owned property. They created the Friends of Elizabeth Street Garden both to program the space and fight for its preservation as permanent parkland. With Reiver’s cooperation, they opened the garden up to public use and staffed it. Reiver previously told The Villager that, in the past, he could not really allow the public into the garden on a regular basis due to liability issues — such as people falling over the statues and hurting themselves, for example — and a lack of staffing to oversee the place.
Backroom deal
Meanwhile, five years ago, the lot was quietly earmarked for affordable housing by City Councilmember Chin and City Hall as a stealth add-on to the Seward Park Urban Renewal project on the Lower East Side — even though the two locations are in completely different community boards and there had been no public review of the plan for Elizabeth St. C.B. 2 was only notified after the fact.
Over the past five years, F.E.S.G. has campaigned to try to save the Little Italy green space from being developed with the city-sponsored senior housing project, which, in addition to being championed by Chin, is backed by Mayor Bill de Blasio. The Friends have held several “Wake Up!” rallies — featuring a “Reveille”-tooting bugler — including outside the Department of Housing Preservation and Development’s offices and even in front of Brooklyn’s Prospect Park YMCA, buttonholing de Blasio as he entered the gym for his usual morning stretch.
Unfortunately, their efforts to save the full garden have not made headway. For the past two years, C.B. 2 has also urged the mayor to shift the housing project to an alternative vacant site at Clarkson and Hudson Sts. — where five times as many affordable units could be built, advocates say — but to no avail.
In addition, in a unified front, all the area’s local politicians — with the exception of Chin — as well as citywide elected officials, including Comptroller Scott Stringer and Public Advocate Letitia James, back saving the garden.
But the mayor and Chin are unbending. The Lower Manhattan councilmember has always been a staunch advocate for affordable housing, which also is a central plank of de Blasio’s political platform.
‘Solomonic decision’
Indeed, at a Chelsea town hall meeting last month, de Blasio answered a question by a garden member by saying he firmly supports the current plan — which would include 5,000 square feet of open space along with the housing.
“I’m very much clear that this was the ultimate Solomonic decision,” the mayor replied. “The whole site was [originally] slated for affordable housing and there was no public space. You had an active public space in the interim — and a very good use, obviously,” he said of the thriving community garden. “The decision I came to was to do a split — where there would still be public space and there would be space for activities, but we could also put in affordable housing for seniors that was desperately needed in the community.”
Yet, under the city’s current plan, only about one-quarter of the block-through lot would be preserved for open public use.
“So, right now that’s where we are, and I don’t see that changing,” the mayor told the town hall. “I believe we’re in the right place — even though I know you disagree.”
New group’s messages
Earlier this month, the three board members of the breakaway group, E.S.G., issued statements to F.E.S.G.’s members, explaining their decision to form the new nonprofit.
Joseph Reiver, who is 25, praised F.E.S.G. for their work supporting the garden and creating a burgeoning sense of newfound community around it, and vowed to keep up its community programming.
“The amount of green space and openness to the public in the midst of the romantic architectural aspects and diverse seasonal activities makes the garden the heart of our neighborhood,” the younger Reiver said. “These elements form a unique, shared sanctuary, one that I am absolutely dedicated to sustaining and protecting.
“Through my role in Elizabeth Street Garden, Inc. (E.S.G.), I will maintain the free public programming and accessibility of the garden.”
In an interview with The Villager this week, Joseph said that, basically, the five-member board of F.E.S.G. was split on whether to sue. Two members, Jeannine Kiely and Kent Barwick, were against the idea. A third member never attended meetings, while the other two members wanted to sue.
“The whole reason we started the new nonprofit was because others were not willing to join the litigation,” Joseph said.
De Blasio made his position on the garden perfectly clear at the Chelsea town hall, Joseph noted.
“The bottom line is what’s best for the garden,” Joseph said.
In her statement to her fellow gardeners, Renée Green, 85, who was one of the board members of F.E.S.G. who backed suing, said forming the new nonprofit was tough but necessary. The new E.S.G. board member said the garden is “perfect” for her as a nearby open space since she can’t walk far due to arthritis.
“It is with deep regret that I have resigned from the board of F.E.S.G.,” Green wrote, in part. “It’s a drastic step, and one that was not easy for me. That I did so was for the sake of preserving the garden.
“F.E.S.G. had done such a remarkable job of turning a magical space into a major focal point for the community, yet we weren’t getting any closer to changing the minds of people that matter. We had to get more aggressive and, if necessary, take legal action to save the garden. I realized I could no longer stand by, knowing that the mayor, like Councilwoman Chin, has dug his heels in and angrily said that the best we could hope for is a 50/50 split of the property. While this may sound like a great compromise, to those of us who truly want to preserve the garden, it is totally unacceptable.
“I have become a member of the board of the new Elizabeth Street Garden, Inc. (E.S.G.) because I feel that, with them, we stand a better chance of preserving the garden.”
‘Any means possible’
The third board member of the new group is Aziz Dehkan, executive director of the New York City Community Garden Coalition.
“This community garden is a vital asset to the Little Italy neighborhood, one of the last few green spaces available to the residents, and we should use any means possible to preserve this space as it currently exists,” Dehkan said in his letter to the rest of the gardeners.
“Through the city, the Department of Housing Preservation and Development has targeted community gardens as a place to build what they deem affordable housing. The trade-off of destroying community gardens to build affordable housing is unacceptable. There are better ways to achieve making the city more affordable and livable.
“Despite the public outrage, despite C.B. 2’s condemnation of this project,” Dehkan continued, “City Councilwoman Chin, the mayor and H.P.D. are intent on bulldozing Elizabeth Street Garden to make way for a building that would be better suited at another location, a site that would create more units and save the community garden.
“Friends of Elizabeth Street Garden (F.E.S.G.) has been working to solve this issue through the political process and public demonstrations. Clearly,” Dehkan said, “that has not been enough to stop H.P.D. and the destruction of Elizabeth Street Garden. The only viable next step to stop the loss of this important neighborhood space is through legal action, and at this critical point in time it appears that F.E.S.G. is not willing to take that action. And action must be taken immediately. There is no time for indecision. No time to lose.
“I am also certain that E.S.G. will continue to work with F.E.S.G. to ensure that programs remain, that support in the community remains and that together, E.S.G. and F.E.S.G. will form one powerful coalition to save Elizabeth Street Garden.”
‘Effective immediately’
Not surprisingly, leaders of the first nonprofit group were shocked by the move to create the second one and wrest away control of the garden.
“Allan sent us a letter that said, effective immediately, we should no longer be programming the garden,” said Kiely, who was the initial organizer of efforts to save the garden five years ago. “This new organization will program the garden and staff it.
“We had a great lineup,” Kiely said, reflecting on the events they had planned for this season. “Last year, we did 203 public events. Most of them were organized by our volunteer members.”
Kiely noted they had a “seed-bomb workshop” — set up through a third party — for Earth Day last Saturday, which had been planned three months earlier.
“We actually had a full day of programming,” she said.
While the Earth Day event was co-sponsored by the Department of Sanitation’s Compost Project and the Lower East Side Ecology Center, other events that F.E.S.G. volunteers planned to hold apparently are all now kaput.
As for F.E.S.G.’s not committing to joining a lawsuit to save the garden, Kiely said, “I can’t comment on theoretical litigation. We made a decision on a certain date.”
Basically, F.E.S.G. members studied whether a lawsuit could succeed in this case, and determined it was too much of a long shot. For example, one angle they reportedly looked at was to use the Public Trust Doctrine. Under that principle, the state Legislature must first vote to “alienate” public parkland — meaning remove it from use as such — before it can be put to other uses. But this argument notably recently failed in a community coalition’s legal fight against the New York University mega-development project on the school’s two South Village superblocks; that community lawsuit argued that the city-owned “open-space strips” of greenery with park uses along the edges of Mercer St. and LaGuardia Place had to be “alienated” first before the four-building N.Y.U. project could proceed. But in June 2015, the state’s highest court, the Court of Appeals, ruled in favor of the N.Y.U. plan.
‘Different from N.Y.U.’
However, Reiver said, “Our research indicates there are a lot of differences from the N.Y.U. case — such as the public-use history, the land-disposition agreement.”
In the meantime, the Friends members are not banned from using the garden, but now cannot run activities there.
“I’m glad that they’re going to continue to open the garden to the public,” Kiely said. “The more support there is for the garden, the more likely it can be saved.”
If Reiver’s lawsuit is ultimately successful, Kiely said, “that’s wonderful news.”
Cude: ‘It’s not good!’
Meanwhile, Terri Cude, chairperson of C.B. 2, blasted the move by Reiver and Co. to create the new nonprofit and seize control of the space — and urged that F.E.S.G. be restored as the garden’s stewards.
“This breaches Allan Reiver’s agreement with C.B. 2 to support independent management and returns this essential public amenity to private control,” Cude said, apparently referring to the board’s 1990 recommendation that he be given control of the lot.
“We condemn the eviction of the Friends,” Cude added, “the nonprofit community organization that has expended a tremendous amount of energy and effort to beautify the space, provide extensive public access, and offer successful programming in a part of our area severely underserved by park space.
“C.B. 2 remains steadfast in its strong support of making Elizabeth Street Garden a permanent public park,” Cude said. “Ongoing independent control of the space is vital to this goal. We call on the leaseholder to immediately rescind this unilateral action, which is contrary to the public open-space needs of the community and the city.”
In an interview with The Villager, Green, one of the new nonprofit’s three board members, reiterated that she had decided a different course needed to be taken.
“I felt very strongly that we weren’t being aggressive enough,” she said. “Allan hired an attorney and he asked the Friends of Elizabeth Street Garden if they would join the suit, and they never said they wouldn’t or they would.”
Green’s last job was as mayor of Livingston, N.J., for one year. Before that, she was on the town’s Council for three years, after being town clerk for 26 years. Since retiring, for the last 10 years she has lived near the Little Italy garden.
Asked when they will sue, Allan Reiver declined to provide a date, but assured they will. He added that other plaintiffs will likely join the suit, including businesses and individuals.
The full nine yards
Recalling, the O.K. he got from C.B. 2 27 years ago to fix up the crummy lot, Reiver said he went beyond what was asked of him.
“The city only required that I fence it and clean it up,” he said. “The community board recommended that I create a park-like setting. I put in sod, magnificent trees. …”
Using a forklift, Reiver personally installed all the sculptures in the garden. They were primarily to beautify the space, not for purchase — though he admitted he used to sell two or three a year, though not many lately.
“Everything was put there for aesthetic purpose,” he noted of the sculptures, “totally aesthetically.”
As soon as the garden was created, the impact on the gritty area was felt.
“It changed immediately,” he said. “Peasant moved in, retail moved in.”
Reiver noted that, in his earlier life as a developer, he specialized in fixing up spots in downtrodden neighborhoods.
“I had the same desire to change this neighborhood,” he said. “I wanted to improve the neighborhood — and more than that, create a neighborhood. The area lacked a gathering place for the community.”
‘Keep building support’
Kiely of F.E.S.G. said her group will continue to try to save the beloved space.
“Our greatest asset is the extraordinary level of public support for the garden,” she said. “The Friends will continue building on this support, and continue fighting until the mayor and Councilmember Chin recognize that there are multiple alternative sites available that would enable the city to create more affordable housing while saving the park.
“Friends continues to explore every option to preserve the garden as a permanent public park, and is fully committed and has the strong backing to do so.”
Meanwhile, Joseph Reiver said the garden’s programming has been going well.
“The Easter egg hunt was great, with 200 eggs,” he said. “The kids found them all in 40 minutes.
“We had the Lower East Side Ecology Center workshop. We had meditation. We’ve had a lot of events since we started.”
The garden’s new “Call to Art” is exciting, he said, with an online gallery where anyone can post photos of artwork they have made that was inspired by the garden.
The gallery and other garden events can now be found at elizabethstreetgarden.com .
