Judges to Consider City Plan for Union Square Park Restaurants

, New York Law Journal

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The pavilion at the north end of Union Square Park
The pavilion at the north end of Union Square Park

ALBANY - During a term with a decided commercial tilt, the state Court of Appeals will consider whether a controversial restaurant proposal for Union Square Park violates the public trust doctrine, a principle the court introduced in 2001 to help determine when municipal parkland may be used for private purposes.

As it hears arguments in 30 cases beginning today, the court also will be asked to clarify language commonly included in insurance contracts on replacement costs for damaged buildings and to settle a dispute that arose in lower courts in Manhattan over the admissibility of scientific evidence in residential mold exposure cases.

Union Square Park Communities Coalition v. New York City Department of Parks and Recreation, 17, the public trust doctrine case, will be heard on Jan. 14.

The Union Square Park Communities Coalition is seeking to overturn an Appellate Division, First Department, ruling that upheld a plan for Chef Driven Market to establish a new seasonal restaurant in Union Square Park Pavilion and a year-round food kiosk nearby (NYLJ, June 19, 2013).

Manhattan Supreme Court Justice Arthur Engoron earlier had ruled that appropriating a portion of the park's pavilion for the restaurant project would be an impermissible use of parkland for nonpark purposes.

Chef Driven Market would run the restaurant and kiosk through a 15-year licensing agreement with the city. In return, the city would gain the right to approve the restaurants' menus and prices, to restrict the kinds of events held at the eateries and to terminate the agreement at any time. The city also would initially collect $300,000 a year through the license, to increase to $453,777 annually by the 15th year of the agreement.

Assistant Corporation Counsel Deborah Brenner will argue that restaurants have long been recognized as appropriate uses of city parkland, with the city licensing popular eateries in Central Park, Battery Park, Madison Square Park and other city parks.

She also will maintain that the city parks agency is empowered to enter into the restaurant license agreements.

Opponents argue that conveying the property to Chef Driven Market violates the public trust doctrine as it was enunciated by the Court of Appeals in Friends of Van Cortlandt Park v. City of New York, 95 NY2d 623 (2001).

In that determination, the court held that "legislative approval is needed when there is a substantial intrusion on parkland for nonpark purposes, regardless of whether there has been an outright conveyance of title and regardless of whether the parkland is ultimately to be restored."

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