Private Restaurant Allowed in Union Square Park

, New York Law Journal


The pavilion at the north end of Union Square Park
The pavilion at the north end of Union Square Park
Editors' Note: This article has been updated to reflect a Correction.


ALBANY - The state does not need to approve a restaurant in Union Square Park, despite a rule requiring the Legislature to say when a public park can be used for private purposes, the Court of Appeals determined Thursday.

The unanimous court held that New York City's agreement with food vendor Chef Driven Market to run a restaurant in the Manhattan park's recently-renovated pavilion does not violate the so-called public trust doctrine.

"While we leave open the possibility that a particular restaurant might not serve a park purpose in a future case, we conclude that the restaurant here does not run afoul of the public trust doctrine for lack of a park purpose," Judge Victoria Graffeo (See Profile) wrote for the court in Union Square Park Community Coalition v. New York City Department of Parks and Recreation, 17.

A coalition of community groups had contended that the restaurant would harm the character of the 3.6-acre park, which is designated as a national historic landmark, and is unnecessary because of the large number of restaurants nearby.

But Graffeo wrote that while the community groups and the Parks and Recreation Department may disagree over the best use of Union Square Park and its pavilion, the city's contract with Chef Driven Market is not illegal.

The court said its ruling was in line with its previous holdings on the public trust doctrine and restaurants in city parks in Friends of Van Cortlandt Park v. City of New York, 95 NY2d 623 (2001), and 795 Fifth Ave. Corp. v. City of New York, 15 NY2d 221 (1965).

In 795 Fifth Ave., the court held that New York City's park commissioner is "vested by law with broad powers for the maintenance and improvement of the city's parks" and judicial interference is only justified when a "total lack of power is shown."

Graffeo wrote that while 795 Fifth Ave. concerned objections to private uses of Central Park instead of the far-smaller Union Square Park, the principles are the same.

"Although it is for the courts to determine what is and is not a park purpose, we recognized that the Commissioner enjoys broad discretion to choose among alternative valid park purposes," Graffeo wrote, adding "we perceive no meaningful distinction between 795 Fifth Ave. and the case before us in the application of the public trust doctrine."

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