On Tuesday, June 10th, 2014, NYCCGC joined together with a coalition of Coney Island residents and community gardeners to pack Kings County Supreme Court, in support of our lawsuit against the City’s decision to approve and fund a $53 million outdoor amphitheater on the Coney Island Boardwalk.
Our court appearance yielded mixed results. We are disappointed that the Judge, Hon. Mark Partnow, denied our request for a preliminary stay/injunction, which would have put a complete halt to the amphitheater construction while this lawsuit is still pending. At the same time, Judge Partnow made several stern statements to the lawyers representing the City and its developer, iStar Financial, indicating that they should find a way to settle this lawsuit. Opposing counsel refused to consider even discussing a settlement, and at one point referred to the Boardwalk Gardeners as “squatters” undeserving of concessions from the City or iStar. In the end, Judge Partnow said that without a settlement he will have to decide the case on the “papers” (i.e., on the merits of the legal arguments and the facts presented in our court filings), and that this could make it quite difficult for the project to move forward.
We are encouraged by the fact that Judge Partnow effectively threatened to decide the case on the “papers” when opposing counsel refused to consider any settlement. As elaborated below, we believe our papers firmly establish why the laws, the facts, and justice are all on our side.
Background on the Boardwalk Community Garden and the City’s Amphitheater Project
We are not opposed to the amphitheater project per se. And we certainly are not opposed to the revitalization of the Coney Island community. What we are concerned with and specifically opposed to is that the planned location for the amphitheater project calls for development to take place on designated New York City Parkland that has been used as a public community garden for roughly sixteen years.
At approximately 4:00 am on December 28th, 2013–just days after City Council approved the amphitheater–the City and its developers sent bulldozers to the Coney Island Boardwalk Garden, forced assembled gardeners off the land, and began clearing and grading the site. This brazen act was meant to intimidate the gardeners and somehow physically ratify the legally deficient land use approval process. Nearly six months later, no actual construction work has started at the Boardwalk Garden site.
Coney Island Boardwalk Gardeners v. City of New York
On April 18, 2014, the New York City Community Garden Coalition and the People’s Coalition of Coney Island filed a lawsuit against the City of New York and iStar Financial, Inc. and its subsidiaries on behalf of the garden. In the lawsuit, we cite two major problems with the amphitheater project’s approval:
First, the City never sought nor obtained State legislative approval to alienate public parkland, despite the fact that the Boardwalk Garden site was transferred to the City’s Parks Department in 1997, for the purpose of creating a permanent garden site. The garden site has been identified as a “Park” on numerous Parks Department and other City agency maps, and meets all criteria for protection under New York’s common law public trust doctrine. Consequently, the City and iStar violated the public trust doctrine when they bulldozed the garden and fenced-off this site from any public park uses without prior legislative approval.
Second, the City made several glaring mistakes during the project’s environmental review process, which was rushed in order to get the project approved before its main sponsors (e.g., former Borough President Marty Markowitz and former City Councilman Domenic Recchia) were term-limited out of office. Most notably, the environmental review completely ignored whether the amphitheater would increase flooding in the project area, despite the severe flood-related devastation Coney Island residents endured during Hurricane Sandy.
On April 29, 2014, members of the Coney Island Boardwalk Community Garden reached a temporary agreement with the City and iStar Financial, Inc., to postpone the planned construction of a $53 million amphitheater project pending the lawsuit. In the agreement, the City and iStar agree that they do not intend to pursue any major construction on the site of the Boardwalk Garden, which currently sits unused and fenced-in, until at least the court date of June 10, and that they will provide the petitioners with ten days’ notice if they plan to perform any activity on the site beyond soil sampling or other non-invasive activities.
Our legal papers are available for download at http://goo.gl/id3Trq.