By Jonathan Greenberg
The closer you look at the recent decision by the Appellate Division to overturn Judge Emily Jane Goodman’s ruling on the redesign of Washington Square Park, the more it resembles a political fix.
Typically, an appeals court overturns a lower court’s ruling on issues of law. But in this case, the decision by the five-man Appellate panel (four of them Pataki-appointed conservatives) revised the facts in Goodman’s July 25, 2006, ruling, replacing reality with fiction. The Appellate Court has reconstructed what really happened during the past two years, in order to grant the Parks Department a license to radically redesign Washington Square Park.
Judge Goodman’s 19-page well-researched ruling highlights the key issue: “This litigation turns on whether two major elements of the plan, the placement and capacity of the fountain jets, and the size of the fountain plaza, were clearly revealed to both the community board and the Landmarks Commission. 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 the 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…”
Judge Goodman reviewed sworn affidavits, from myself and current C.B. 2 Parks Committee Chairperson Arthur Schwartz, affirming that during the C.B. 2 approval hearings, the Parks Department never disclosed the plan’s 23 percent reduction in size of the central plaza. Nor, she found, did Parks Department officials ever mention their intended transformation of the fountain to an ornamental fountain off limits to sitting, performing or wading without a special permit, until the Art Commission hearing in January 2006, long after other approvals had been granted. Goodman also cited our transcript from a Landmarks Commission hearing, in which commissioners were assured, by Parks designer George Vellonakis, that the central plaza would be “exactly the same” after the redesign.
The Appellate court ignored all this, relying on unsubstantiated interpretations of “fact.” Most prominently, the Appellate judges stated: “…The Supreme Court erred in finding that the Parks Department provided Community Board 2 with inadequate disclosure in this case.
The record demonstrates that…in April 2005 the Parks Department made a detailed presentation of the renovation to the community board, supported by photographs and schematic drawings of proposed changes to the fountain and the fountain plaza. Although no specific measurements were provided, the diagrams of the plaza were drawn to scale and consistent with the Parks Department’s stated goals.”
However, videotaped presentations, documents and the memory of hundreds of us who were present reveal that far from disclosing the department’s true plans, Parks representatives assured us that changes to the fountain and central plaza would be “insignificant.” Remarkably absent from both the city’s response to our April 2006 lawsuit and its October 2006 appeal is a single affidavit from designer George Vellonakis or Manhattan Borough Parks Commissioner William Castro, the two officials who presented the plans to the community board and Landmarks Commission. Nor did the city attempt to provide affidavits from any one of the 40-plus C.B. 2 members who voted to conditionally approve the plan — based on misleading information — in April 2005.
No such affidavits were presented because city officials do not want to perjure themselves. As our free four-minute Web video at www.openwsp.com reveals, in May 2005, prior to a vote by the city’s Landmarks Preservation Commission, Vellonakis told C.B. 2’s Landmarks Committee that the reduction in the size of the central plaza would be “insignificant.” When asked what he meant by “insignificant,” he responded, “about 5 percent.”
In fact, under the now-set-to-go plan, the central plaza will be reduced by 23 percent, the fountain transformation will reduce the current gathering and seating space by another 10 percent, and the removal of the contiguous blacktop to the east of the center will reduce it by another 10 percent.
The approvals the Parks Department received from C.B. 2 and Landmarks Commission members were, in fact, based upon misleading information. The reason that the city spent eight months appealing Judge Goodman’s decision instead of complying with its simple “do it right this time” instruction was that it did not believe it could win the approval of its true plan for our park through a legitimate review process.
C.B. 2 and the Landmarks Commission have never voted on the fully revealed plan, which destroys the theater-in-the-round that makes Washington Square Park one of the most unique public gathering spaces in the world. The Parks Department deliberately refused to disclose its actual plans until after receiving C.B. 2 and Landmarks approvals. Instead, they falsely marketed their redesign as a relatively minor renovation that would improve the park’s current functionality. And from the beginning, they have refused to allow the public a choice over whether our tax money is used to simply repair and improve the current design, or have the park transformed, as it may soon be, into a garden-style, pedestrian pass-through mall.
Had the Appellate court been truly interested in finding out what had been disclosed, it could have easily remanded the case back to the lower court to hear the sworn testimony of the officials who did the disclosing, as well as C.B. 2 and Landmarks representatives who voted to approve the plan. It would then have heard that despite repeated requests, Parks officials refused to leave the so-called “scale” drawings in the hands of the public or C.B. 2 members for review and measurement.
But the Appellate court had no intention of finding out what material representations Parks actually made. Its ruling exists to rationalize the removal of Judge Goodman’s obstacle to the city’s plans. Our attorneys, Daniel Alterman and Arlene Boop, are requesting permission from the state’s highest court, the Court of Appeals, to appeal this misguided decision.
Meanwhile, in Councilmember Alan Gerson’s talking point in last week’s Villager (“Forward and united on Washington Square renovation”), he seems untroubled by two years of misrepresentations and an abuse of the community approval process. Given the deceit of Parks and its legal stance officially disavowing the unsigned “Gerson-Quinn agreement,” few Villagers would agree with the councilmember’s statement that “Even if Parks’ fountain proposal proceeds, there will be no real change in Washington Square Park’s feel and character.”
To be legally binding, a contract needs to be signed by the involved parties. The Gerson-Quinn agreement is a wish list, not a contract; neither the agreement nor the new Washington Square Park Task Force have any legal standing to protect against the most important “big picture” aspects of this immensely unpopular redesign scheme. These aspects include: the significant reduction and raising to street level of the central plaza, the destruction of the fountain’s use as a theater-in-the-round, the high fence, the narrowing of all walkways to less than half their current size to allow decorative planters and the unnecessary three-year closing of much of the park for construction.
“Forward and united,” Gerson wrote last week.
I have a better idea for the city: Try listening to us, the taxpaying citizens, for a change. We are united and this is what we say:
Preserve Washington Square Park, keep it open, repair it, don’t redesign it!
Greenberg, a local parent, is lead plaintiff in Greenberg vs. City of New York and founder of the Open Washington Square Park Coalition. He holds a master’s law degree from Yale Law School and has lived near Washington Square Park more than 30 years.
