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Looks Like the NYC Garden Destruction Moratorium is Off

  • Subject: [cg] Looks Like the NYC Garden Destruction Moratorium is Off
  • From: "Honigman, Adam" <Adam.Honigman@Bowne.com>
  • Date: Fri, 19 Apr 2002 15:20:01 -0400


Looks like we're in for more interesting times here in the apple....

Ruling on Community Gardens Gives City New Cause to Hope

By Daniel Wise <mailto:dwise@amlaw.com>
New York Law Journal
An acting state Supreme Court justice in Brooklyn issued a ruling last week
that could give New York City a leg up in its long-running battle to use for
affordable housing land that has been given over to community gardeners. 
The ruling came in a case challenging city efforts to convert community
gardens in Brooklyn into low- and moderate-income housing. It provides the
city with legal ammunition to lift a 2000 preliminary injunction, issued in
a different case, which barred the development of more than 600 gardens. 
In the latest lawsuit, Justice Leon Ruchelsman rejected an effort to block
the conversion of the Brooklyn gardens mounted by the Green Guerrillas and a
host of Brooklyn-based groups and community gardeners. In a key ruling,
Justice Ruchelsman rejected a claim that because the gardens were "dedicated
parkland," they could not be converted to a different use without first
getting the approval of the Legislature. 
That finding knocked out a claim identical to one that the State Attorney
General's Office had raised in another case that persuaded Justice Richard
D. Huttner to issue a preliminary injunction barring the auctioning of the
lots for development in February 2000. 
In addition to claiming that the dedicated parkland argument barred the
conversion, the State Attorney General's Office also contended in the
earlier case, New York State v. Giuliani, 15942/99, that city officials had
failed to conduct the environmental review required by the State
Environmental Quality Review Act. 
First Assistant Corporation Counsel Jeffrey D. Friedlander said Thursday
that Justice Ruchelsman's ruling in Green Guerrillas v. City of New York,
33106/00, resolved one of the "most important issues" in the litigation over
the injunction. He also said the ruling "allows us to attempt to forge an
agreement with the Attorney General that would accommodate both the city's
need for affordable housing and the interests of people who have backed the
Assistant Attorney General Christopher A. Amato, who represented the state
in securing the injunction, likewise expressed a strong interest in settling
the case. "Our position has always been that community gardens and housing
can co-exist," Mr. Amato said. "We are convinced that a balance can be
struck between these two necessary components of urban living," he added. 
Mr. Amato, however, disputed Mr. Friedlander's assessment that the ruling
had dealt the state a serious legal setback. He pointing out that Justice
Ruchelsman had ruled on a motion to dismiss without the benefit of a factual
record. The determination of whether the gardens are "parkland" is
"fact-specific," he said, noting that in discovery "a substantial factual
record" has been developed showing that some of the gardens may qualify as
"dedicated parkland." 
Justice Ruchelsman is now handling the injunction case as well as the Green
Guerrillas' lawsuit. Both cases had been assigned to Justice Huttner, but
they were given to Justice Ruchelsman after court officials moved Justice
Huttner to the Supreme Court in Queens as a part of a shakeup of the
Brooklyn courts. 
Community gardens were first officially recognized in 1978 as a part of the
city's Green Thumb Program. Some years earlier, gardeners throughout the
city had begun to grow flowers and produce on vacant city-owned land. The
movement, with the city's sanction, had grown to more than 600 gardens, when
the Giuliani Administration in the mid-1990s proposed to allow the
development of one- to four-unit housing for persons of modest income on
some of the garden properties. 
The move was fiercely opposed by the gardeners. In one of the earlier
skirmishes of the battle in 1999, the performer Bette Midler provided $1.2
million to help prevent 112 of the gardens from being auctioned for
development. In the latest legal ruling involving the Green Guerrilla's
challenge, Justice Ruchelsman found that "no evidence" had been presented to
demonstrate that "the City intended to dedicate these community gardens to
the public." 
"There have been no changes to any maps or public records and nothing to
indicate that the City acted to abandon these lots entirely," he wrote. 
Justice Ruchelsman also rejected a claim that city officials had to follow
the procedures outlined in city laws before there could be development on
city land. Those procedures, known as ULURP, an acronym for Uniform Land Use
Review Procedure, were trumped by a state law designed to promote the
development of affordable housing of one to four units, Justice Ruchelsman
concluded. Acting Justice Jeffrey M. Atlas had reached a similar conclusion
in a lawsuit seeking to challenge the conversion of gardens in Manhattan. In
Matter of New York City Coalition for the Preservation of Gardens v.
Giuliani, 246 AD2d 399 (1998), the First Department upheld Justice Atlas. 
The Green Guerrillas were represented by Beth Jacob of Schiff, Hardin &
Waite and by Lawrence Fenster of Ross & Hardies. Assistant Corporation
Counsel Christopher Reo represented New York City. 
Date Received: April 18, 2002 

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