Preserve Washington Square Park
The Article 78 Proceedings Against The Redesign
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The Article 78 Proceedings Against The Redesign
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Move and RENAME the Fountain?
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Would you buy a used Park from this man?
Redesign the Central Open Space?
What We Stand to Lose
Eminent Domain meets Manifest Destiny
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The Arts in the Park
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Jon Rettich's Park Musician Sketches
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The Art Commission Hearing 01/09/2006
The Project For Public Spaces' Working Session and Findings
We're Community Board 2 And We're Here To Help
NYC Public Advocate Betsy Gotbaum's Testimony on the Renovation

The Park, The Courts, And You

Three Article 78 proceedings have been brought against the city. While no final decisions have been made, they have had significant effect, including the City's requirement to product an Environmental Impact Study because of the Park's size, and an injunction against further work on the Park.

What does all this mean?

It means we have been able to enjoy the Park through 2005 and well into 2006.

It means that the efforts by organizations and individuals to stop the redesign throughout the city are working.

It means that people are paying attention to this and other websites about the Park (Check the "Other Sites to Check" page for others.)

It means that they are listening to YOU.

So don't take the heat off. Continue to write to the government and the press using this website to keep the pressure on and don't be complacent. All the links you need are on the "Write to Politicians and the Press" page on this site.

And in the meantime, get out there and enjoy the Park!

Information on all three Article 78 proceedings follow, with all documents downloadable in PDF format.

The Chicago Tribune Gets It Wrong Again
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ECO et al Article 78 Proceeding Against the Park Redesign

An Article 78 Proceeding against the City, Mayor Bloomberg, Adrian Benepe of the Parks Department, Robert Tierney of the City Landmarks Preservation Commission, and Emily Lloyd, Commissioner of the Federal EPA was filed on July 22, 2005. Attorney Ronald Podolsky drew up the petition along with The Emergency Coalition Organization to Save Washington Square Park (ECO) and numerous other organizations and individuals.

An Article 78 Proceeding refers to an article of the Civil Practice Law and Rules that allows aggrieved persons to bring an action against a government body or officer. This device allows review of state and local administrative proceedings in court.

This proceeding was withdrawn without prejudice by the petitioners based upon the representation by the City and the Parks Department that the decision to do the work is not yet final.

The City appeared to agree with the petioners' position that it needs to go through a number of procedures in order to continue the project, in particular an Environmental Impact Study.

The lawsuit will be refiled upon the announcement of the date of construction if the petitioners still have objections to the project when it is resubmitted.

Click here to download the ECO Article 78 Petition as a PDF

Click here to download the affidavit as a PDF

Click here to download the press release as a PDF

Click here to download the stipulation of discontinuance as a PDF

Ronald Podolsky Article 78 Proceeding Against the Art Commission Hearing

This proceeding was filed because the City did not make the plans that were presented to the Art Commission available 20 days before the hearing as required by the Freedom of Information Law.

The stated purpose of the lawsuit is to void the Art Commission decision to approve the Washington Square Park redesign, as regards relocating and rebuilding the fountain, while moving the Garibaldi and Holley statues away from the center of the Park.

This proceeding was filed because the city did not make the plans that were presented to the commission available a reasonable time before the hearing, as required by the Freedom Of Information Law.

The petition states that a victory in this case would force a new Art Commission hearing "for further proceedings with ample opportunity for the Petitioner to obtain a copy of the filing and opportunity to obtain information which would assist in presenting views respecting the Park Department proposal, together with a temporary injunction against the Respondents from starting work calculated to accomplish the renovations to Washington Square Park approved January 9, 2006."

On May 18, the case was heard with oral arguments in New York County Supreme Court by Judge Emily J. Goodman. Her decision has not yet been announced, although the injunction against Parks continuing on any aspects of the redesign was extended until the decision.

Click here to download the Petition and Memo of Law in PDF format

Click here to download the press release in PDF format

Jonathan Greenberg et al Article 78 Proceeding Against the City and Parks Department

Filed as a related case to Mr. Podolsky's proceeding, this was brought by Jonathan Greenberg of the Open Washington Square Park Coalition and author Luther Harris, with Rebecca Parelman, and Fusun Ateser. This case asserts that the Parks Department submitted significantly different reports to Community Board 2 and the Landmarks Commission than that given to the Art Commission; that the plans were incomplete; and that they deliberately withheld information and made material misrepresentations in their submission.

As a result of this filing, the Parks Department agreed to be enjoined from letting contracts or commencing work until the hearing.

On May 18, the case was heard with oral arguments in New York County Supreme Court by Judge Emily J. Goodman. Her decision has not yet been announced, although the injunction against Parks continuing on any aspects of the redesign was extended until the decision.

Click here to download the lawsuit and the following related documents in PDF scanned format from the openwsp.org website. It's about 6 meg, so it may take quite a while to get it downloaded if you don't have a fast connection.

Here is an index to the documents within the above file.

Pages 1-3 Request to File as a Related Case
Pages 4-11 Affirmation
Pages 13-23 Jonathan Greenbergs Affidavit
Pages 24-30 Luther Harris Affidavit
Pages 31-32 Rebecca Parelmans Affidavit
Pages 33-34 Fusun Atesers Affidavit
Pages 35-36 Anne Emmermans Affidavit
Pages 37-38 Letter from Disabled In Action to the Art Commission
Page 41 Notice of Petition
Pages 42-58 Verified Petition
Page 59 Verification
Pages 60-77 Exhibits
Page 78 Order to Show Cause

Click here to read the City's response to the lawsuit as a PDF

Click here for the exhibits for the City's response as a PDF

Click here for Judge Goodman's order against Parks continuing work on the Park as a PDF

Click here to read the press release on this proceeding as a PDF

Our Day in Court

n a packed courtroom with about 80 people in the gallery and the jury box, people in wheelchairs, and a number turned away, the issues involved with two Article 78 petitions were heard in court on May 18. The crowd was actively listening, often letting the court know what they felt. Short but spontaneous applause by just about the whole audience was heard several times. Overall it was a positive afternoon.

We were a bit nervous after last week's delay and combining the two cases into one hearing, but it worked out quite well. The judge appeared to have some of the same concerns we do, particularly the cultural tradition of the Park and free speech rights.

Both Ronald Podolsky's and Jonathan Greenberg's cases were heard in New York County Supreme Court. Predictably, the Parks Department denied everything and moved for dismissal. They showed their contempt for the public by making the claim that the Art Commission and Landmarks Commission decisions are binding, and they do not have to take into account any public testimony in those decisions. Mr. Podolsky attacked these claims by reading the charters of these commissions. He quoted Red Skelton in making his point about the uselessness and ineffectiveness of people testifying without access to the proper information in his FOIL action against the city. Arlene Boop, attorney for Greenberg's petition, also stated the case against Parks' tactics clearly and firmly.

The packed house didn't impress Parks' lawyers, though. Parks is still shoveling coal into their locomotive running down the track towards the cliff, to use Adrian Benepe's train analogy. Parks once again tried justifying the whole redesign on ADA factors, which was not accepted well by the gallery. Their attempts to minimize the power of the Art and Landmark Commissions and Community Boards were shameful, but rebutted by Ms. Boop and Mr. Podolsky. Parks was trying to trivialize the fact that they gave very little detail to the commissions, and because of this, the fact that they changed many critical size factors after the fact is of no concern. They named three different numbers for the percentage change in the size of the central area in their discussion yesterday, without describing what measurement they were using (radius? area? circumference? diameter?). The judge did not accept their statement that since nobody specifically asked them about these deatils, they did not have to talk about them. She also said that the major changes caused by the size changes and the fountain sprays should have been taken into account since they affect the cultural use of the Park.

Parks finally admitted that they still have to do an Environmental Impact Statement about the Park redesign. This is a key part of Mr. Podolsky's and ECO's petition from last summer, which will come into play again when the Park plans are ready to implement. They tried to diminish their responsibility in the stipulation that was brought into play when the petition was withdrawn without prejudice last summer. They have 10 days to present the results and plan to the petitioners, but said that they did not have to wait to do anything before starting construction after they present them. This was questioned by the judge, and she said this would be looked at further, since Parks would need to give the petitioners reasonable time for reopening the case before starting construction.

In closing, the judge said that she had a lot of other cases she is working on, so there might not be a quick decision on these petitions. She also extended the injunction against Parks' moving forward with the redesign until the decision, including putting out requests for bids. Parks already has to change and rebid the plans after the bids that came in were about 3 million dollars above the total monies allocated for the entire project so far, and the judge's decision may move things back even further. It looks like we have a good chance of having the Park for another year.

We'd like to thank all the people who came out and supported the petitions, and especially to Susan Furman who relentlessly handed out flyers for a month and let people know about the schedule change.

Victory in State Supreme Court

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Judge Emily Goodman decided to continue the injunction against the City proceeding with their Park redesign, forcing the Parks Department to go through Community Board 2, the Landmarks Preservation Committee, and the Art Commission.

Like Sisyphus, Parks needs to try to push the plan up the hill again. It's already fallen to the bottom once. Let's continue our efforts to keep it falling.

In the meantime, rather than go through CB2 and the Art and Landmarks Commissions, the City will be appealing the decision. According to the Villager, a November date has been set in Appelate Court. They'd prefer taking their chances in court rather than have any more public input, we guess.

The Two Proceedings

On January 23 2006, attorney Ronald Podolsky filed an Article 78 proceeding to void the Art Commission decision to approve the Park redesign based on the failure of the Parks Department to release information about the plan to the public. The case was scheduled for May 11 to be heard by Judge Emily J. Goodman. On May 1, another more sweeping Article 78 proceeding was brought against the City and attached to Mr. Podolsky's case, which was rescheduled a week later to May 18 so both would be heard at the same time.

As it turns out, the judge dismissed Mr. Podolsky's case in the recent decision, but Mr. Greenberg's case was successful. Mr. Podolsky had this to say:

"I'm glad I was no longer the only kid on the block. I have the misfortune to disagree with Justice Goodman and hope that she will join the considerable number of members of the judiciary who have held against me in the past only to be overruled by higher tribunals."

There was a slight misstatement of the situation in last week's Villager, in the Scoopy's Notebook section:

'"We won!" Greenberg said. "I just got the call from our lawyer, Arlene Boop, 10 minutes ago. The Podolsky suit was dismissed."

Attorney Ronald Podolsky had filed another lawsuit, in addition to Greenberg's, but Greenberg said, "They felt our suit was sufficient."'

While elation over the victory is certainly warranted, it should be noted that Mr. Podolsky's case was not just "another lawsuit." It was the one that Greenberg's case attached to, well after the judge was appointed to the first case. Without Podolsky's case, it might have happened that another judge who might have gone the other way in the case would have been selected with a different outcome.

Judge Goodman's Decisions

The 19 page decision, available at the link below, gives a good history of the timeline of the main events in the park fight so far. Two interesting quotes were brought up.

One was from the Art Commission decision on 1/9/2006 which stated "a plaque honoring the performers, who are such an integral part of the park's rich history, be incorporated into the design of the park."

The other was from the Community Board 2 resolution on 5/21/05 which stated, " it is further resolved that the park must retain its character as a neighborhood park and as a place intended to encourage freedom of expression and informal preferences."

Some key points in the decision follow:

"If plans have been presented to the Landmarks Commission which omit, or obscure elements which significantly impact aspects of the plan that are at the heart of the Commission's function, de novo review is similarly appropriate"

"As a result, both the Landmarks Commission and the Art Commission were denied the informed views of the Community Board in reaching their decisions, and the Art Commission was additionally deprived of the views of the Landmarks Commission"

"Jared Knowles states that reduction of overall pavement and increase in greenspace was discussed at the meeting of the Landmarks Commission; however, he does not state that a decrease in the size of the fountain plaza was specifically discussed. Nor is the court convinced that a decrease of 23%, rather than 33% of the fountain plaza areia is insignificant, particularly in light of the (Gerson-Quinn agreement that said) that the area would not be decreased more than 10%. Similarly, the court is not satisfied that merely including drawings in the plans that depict jets of water, provides sufficient information for the Community Board to adequately evaluate the plan".

"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 of the Landmarks Commission, precluding the exercise of their roles in the oversight process as intended by the City Charter and the New York City Code. As a result, both the Landmarks Commission and the Art Commission were deined the informed views of the Community Board in reaching their decisions, and the Art Commission was additionally deprived of the views of the Landmarks Commission."

The final result is that the City is enjoined, continuing the previous injunction of May 18 2006, from any bidding or work on the redesign until Community Board 2, the Landmarks Preservation Commission and the Art Commission review the SAME plans and issue their approval.

We can expect the City and Parks to do everything in their power to appeal and void the decision, so we'l keep you informed if anything new happens.

In the meantime, congratulations to Mr. Greenberg, his co-petitioners and attorneys for a job well done. Edit

Click here to download Judge Goodman's decision on Mr. Podolsky's case

Click here to download Judge Goodman's decison on Jonathan Greenberg's case


The City's Appeal 10/31/06

The City's appeal of Judge Goodman's July decision was heard on Halloween. No decision was reached as each case only had about fifteen minutes of testimony.

It was encouraging to hear the questions from the five judges, though. They asked a lot of questions about the timing of when information came out regarding the central plaza size and the fountain changes.

Once again, the city's attorney gave the little song and dance about how the new 45 foot fountain spray with eight high pressure jets wouldn't affect people outside. Why? Because they are adjustable to any height. If someone wanted to perform, all they'd need to do is write to the city and they would adjust it for them. It's not clear who would be there at all times to do this. Again, it goes against the spontaneity of the performances.

For several days this summer, the city ran the existing fountain at full pressure. Even on non-windy days, the spray reached the outside of the existing seating areas. Complaints made them lower the spray again. A smaller circle can only make things worse.

We'll let you know when we hear about a decision. The city wants a fast decision, but hopefully the five state judges will take the time to make the right one.

Click here to read the City's appeal documents and attachments in PDF format

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