By Eric Uhlfelder
At a time when US Supreme Court rulings defy all logic, the New York State Supreme Court is following close behind.
Last month, the court’s Appellate Division ruled that New York City adequately considered the environmental impacts of its plans to destroy the Elizabeth Street Garden (ESG). In not requiring further study, the court reopened the path that may lead to the destruction of this unique green space.
It’s unclear from the ruling how each of the six justices who heard the case actually voted. But what is clear is this group’s inability to craft a literate, sound argument and one that’s built upon plain common sense and awareness of community.
Put aside for a moment that the brief four-and-half page ruling begins with an incomprehensible 200-word-long sentence. The justices agreed there’s a shortage of green space in the neighborhood around the Elizabeth Street Garden. They then agreed with the City that neighbors are still well served by Washington Square. (The City wants to tear down ESG to allow a private developer to build 123 units of affordable senior housing.)
The justices argued that senior citizens, disabled residents, and other neighbors could easily go to Washington Square. That historic park is more than a half mile away from ESG—a distance that actually placed it outside the city’s original study zone that looked at the environmental impacts of destroying the Garden.
So what are the justices thinking?
They decided the outcome of the case before they even heard the arguments and evidence.
They intentionally ignored the fact that many residents won’t be able to reach Washington Square with any regularity. And they refused to distinguish between the qualities of the two open spaces. Washington Square has been turned into a concert venue with live music being played virtually all hours of the day; ESG is intentionally maintained as a refuge from the city—a quiet community garden for everyone.
The justices further ignored the very character of the Garden. There is no other space in the city that physically looks and functions like this space. And in being three decades old, it can actually be considered for landmark status.
Moreover, the city isn’t paying one cent for its maintenance. A non-profit is managing the Garden. And with city officials dealing with a serious budget crisis, that arrangement would seem like a pretty good deal.
The judges also failed to press the city to acknowledge there are alternative places to build affordable housing.
In having overruled a lower court’s decision, the judges decided the destruction of the park would not cause a significant environmental impact on the neighborhood and therefore not require the city to prepare a more in-depth study of what it means to our citizens to lose this rare and beautifully managed community garden.
Joseph Reiver, the executive director of Elizabeth Street Garden, said his lawyers may appeal the decision.
This ruling follows on the heels of another dubious NY State Supreme Court ruling that’s permitting the destruction of the 3.5-acre Wagner Park near the Battery. That was another poorly argued decision. Justice Sabrina Kraus wrote that the Battery Park City Authority (which would be destroying, raising, and rebuilding the park) would be harmed if more time was spent considering alternative plans that would fortify the park’s resiliency to storm surge.
That was just plain wrong, while (again) ignoring the community’s alternative flood mitigation plan conceived by the original designers of the park.
Wagner Park never flooded during Sandy and was designed as a defensive flood plain. BPCA’s plans are poorly-conceived because they don’t prevent tidal surges from engulfing the area from adjacent private lands surrounding the neighborhood. Justice Kraus knew this, but ruled against the community anyway.
Even more disturbing, Kraus justified her decision by citing another case when two large parks in the Bronx were destroyed.
Back in 2006, neighbors were begging the city not to tear down Macomb’s Dam and John Mullaly Parks and clear-cut nearly 400 large trees to allow the Yankees to build a new stadium.
New York State Supreme Court Judge Herman Cahn ruled then that no permanent damage would be done to the residents if the 23 acres of parkland were destroyed and rebuilt. He insisted, however, that the Yankees would be encumbered if they were forced to rebuild on their existing site. This would require them to play their home games for several years at Shea Stadium. This is exactly what the Yankees did when they renovated the Stadium several decades earlier.
Judge Cahn had no sense of what it meant to families, senior citizens, and any resident to have access to a mature park versus a construction site, and that a rebuilt park would take decades to regain the shade and character of the parks that would be destroyed.
Cahn’s decision, like the justices who ruled against ESG, was preordained.
We thought Donald Trump, election deniers, and the January 6th rioters were a menace to democracy. But there’s a more subtle and insidious threat that’s much scarier—a system of jurisprudence where judges rule by fiat and special interests—not by commonsense, clear evidence, and compelling argument–and then rely on previous poor rulings to justify their malfeasance.
It’s ironic. The US Supreme Court is turning its back on established legal precedents in overturning long established abortion rights, affirmative action, and individual freedoms. At the same time, our NY Supreme Court justices are relying on defective, poorly argued past decisions to justify permanent harm they are doing to the citizens of New York in deferring to power, money, and special interests.
Elizabeth Street Garden is the small green space at the bottom
right-hand side of the map. It’s a dozen blocks away from
Washington Square Park.
