By Eric Uhlfelder
Last November, we thought the Elizabeth Street Garden may be saved from the city’s wrecking ball when a NY State Supreme Court judge ruled the city had to do a much better job assessing the environmental impacts that would result from the Garden’s destruction.
Instead of responding to the court order, the city appealed the decision to the Appellate Division of the NY Supreme Court. This past spring a 5-judge panel unanimously ruled the city could go ahead with its development plans for 123 affordable senior housing units without further review.
This summer, the Garden’s lawyers were on their last leg, testifying in front of an eviction judge, trying to stave off demolition.
Then something remarkable happened.
Alternative affordable housing sites near Elizabeth Street Garden.
Source: Elizabeth Street Garden
The same group of judges that had dismissed the Garden’s arguments granted ESG the right to appeal its ruling. Considering how adamant and one-sided these judges had decided on behalf of the city, this decision is extraordinary.
They could easily have denied the Garden’s efforts to appeal, forcing it to go directly to the New York State Court of Appeals to plea for a final hearing. But they didn’t, declaring in cryptic and very brief terms that,
“. . . this Court, pursuant to CPLR 5713, certifies that the following question of law, decisive of the correctness of its determination, has arisen, which in its opinion ought to be reviewed by the Court of Appeals:
Was the order of this Court, which modified the order of Supreme Court, properly made?
This Court further certifies that its determination was made as a matter of law and not in the exercise of discretion.”
From its words, we can’t tell why the Appellate Court judges opened the door for further litigation on behalf of the Garden. But the last sentence of its ruling suggests that the Garden may indeed have a case, especially if the Court of Appeals exercises some discretion in its ruling.
According to representatives of the Garden, they believe they have a case that’s also grounded in procedure and law. They argue that especially during this critical period of climate change and environmental uncertainty, government needs to prove the destruction of a mature garden and parkland is indeed in the best interests of the city. If the court agrees with this view, such a decision would then have statewide implications, raising the bar every time a municipality seeks to destroy green spaces it controls.
The Garden asserts that to make this determination, it’s essential for authorities to make a full environmental review that documents the full range of likely impacts that will result from the Garden’s destruction and whether or not they can be effectively mitigated. ESG has been arguing the city’s previously rudimentary environmental assessment was inadequate.
The most obvious evidence of the city’s deficient review was that even the Appellate judges cited the only potentially mitigating argument for ESG destruction was the distant Washington Square Park. But WSP is outside the original city study area. This point by itself should deny that the Square can be considered a mitigating resource.
As I wrote previously in WestView News (http://westviewnews.org/2023/07/20/an-inexplicable-ruling-against-the-elizabeth-street-garden/westview-news/), Washington Square is over a half mile away from the Garden. The Garden is maintained (exclusively by a nonprofit) as a peaceful green, organically designed space. Washington Square, though quite beautiful, is an impromptu concert venue nearly all hours of the day and night and home to regular public protests. Trying to equate the two spaces is like comparing a quiet West Village side-street bed and breakfast to a Times Square hotel.
With increasing number of storms pounding the city, the Garden also provides a degree of flood control for the neighborhood. And how soon many officials seem to have forgotten how critical healthy open space is in our increasingly dense city when we’re facing a public health crisis.
A hearing in front of the Court of Appeals—the highest court in New York State—doesn’t assure the Garden will prevail. This time round, maybe the court will ask the city if alternative development sites are available to save the Garden—a question that the Appellate Court judges failed to ask.
At best, the Garden’s lawyers are hoping the court will rule an EIS is necessary before the city can consider moving ahead with its development plans. That report, ESG hopes, would show the city can’t mitigate the loss of the Garden.
The case may be heard as soon as early next year. It will be a time-consuming and expensive endeavor for the Garden to argue the matter in Albany where the court resides.
But it does stop the clock on eviction. It allows ESG to further petition Mayor Adams to reconsider his decision to tear down the Garden and to think about alternative sites for additional affordable senior housing. ESG is also requesting Adams to consider the Garden’s inclusion into a Conservation Land Trust that would permanently ensure its preservation and maintenance. See link below for details of ESG’s proposal.
Fingers crossed folks. Please visit the Garden and show your support while considering a contribution to the Garden’s defense fund.
For those unable to venture to Elizabeth Street, here’s a short excellent video that takes you through this remarkable space . . . just as if you were there.