In December 2018, the Department of Parks and Recreation [DPR] introduced a new map on its website, Facebook, Twitter, and Instagram accounts. It even offered a hard copy for sale at the annual Union Square Holiday Market. Based on MTA’s classic subway relief, the DPR’s version boasted “a city park for every stop throughout NYC.” Monikers like “Macombs Dam Park” replaced “161 Street-Yankee Stadium” and “Flushing Meadows-Corona Park” ousted “Mets-Willets Point.” The goal was to connect a station to its nearest park so riders could find a place to “relax and unwind,” regardless of destination:
But, on closer review, the DPR shouldn’t have printed a few choices. They’re called Jointly Operated Playgrounds [JOPs]; and, for the past two years, the de Blasio Administration has insisted they aren’t parks. Found in each of the five boroughs, JOPs are under the stewardship of both the DPR and Department of Education [DOE]. Nonetheless, in recent representations, both agencies have moved to eliminate the DPR from the equation.
What the Map Reveals
When he testified before the City Council’s Committee on Parks and Recreation in September 2018, William Estelle, Executive Director of School Facilities for the DOE, said, “JOPs are primarily for school use.” They provide a “flexibility” for “school expansion potential.” Endorsing that assertion, Matt Drury, Director of Government Relations for the DPR, added, “JOPs are under the Department of Education’s jurisdiction and control.”
So what changed between September and December? Out of the 445 parks it picked for its map, the DPR included 69 JOPs—good for 15% of the total. You can see which were chosen on the chart below:
Mr. Estelle and Mr. Drury didn’t retract their position on JOPs, so why were they on the map? Did the DPR make 69 mistakes? Did the DOE authorize “its properties” to be featured alongside the DPR’s? Although plausible, neither explanation seems to pan out.
When the DPR released its cartography, the DOE was quiet. There was no evidence it have given any input. None of its corresponding social media advertised the map, and neither did its website. In fact, not one of those 69 JOPs are even mentioned there–let alone the additional 194 the DOE claims to have under its “jurisdiction and control.” If it had some charge of any, wouldn’t the DOE want to highlight, say, a new map promoting them somewhere?
Now, as far as the DPR goes, it often publicizes real estate it doesn’t own, especially when it has a role in maintaining the land. Some of those sites could have been passed off as parks, but why do it on a map like this? Why append 69 JOPs to a new “parks map” when Mr. Estelle and Mr. Drury have told you otherwise? Why court controversy unless you’re positive your department is the one with sole “jurisdiction and control?”
Whether oblivious or contrary to what the Administration contends, the DPR’s map also makes a puzzling omission. Check out the aerial below:
As you can see, the red cursor pinpoints “96th St,” a stop on the Second Avenue Subway. Given the DPR’s closest “city park for every stop” criteria, you’d expect the “Marx Brothers Playground” [MBP] to have replaced “96th St” on its map, right? Instead, “96th St” is superseded with a park further away, the “Stanley Issacs Playground,” marked in green. MBP is a JOP–the only one bordering a station the DPR failed to gather for its map. So why the exclusion?
What the Affidavits Said
Well, MBP and the entire block it shares with the School of Cooperative Technical Education [SCTE] is mired in dispute. From 2016 to 2017, the New York City Educational Construction Fund [ECF] partnered with developer AvalonBay Communities, Inc. [ABC] to bring a nearly $1 billion project to the site dubbed “321 East 96th Street.” After going through the City’s Uniform Land Use Review Process [ULURP], they secured four zoning amendments that would lead to the demolition of MBP and SCTE. The plan involved erecting three new schools, a residential tower, a playground, and room for mixed retail.
However, in December 2017, community groups led by Carnegie Hill Neighbors filed an Article 78 petition in State Supreme Court to suspend the project. The petition asked the Court to review the City’s decision to repurpose a park–the MBP–for that residential tower. After all, parks don’t generate development rights or the floor area to permit non-recreational structures.
No matter, though. In May 2018, proponents of the developer submitted affidavits to the Court that alleged something entirely different. Philip Karmel, the counselor representing ABC, wrote:
AvalonBay contends that the Marx Brothers Playground is not and has never been parkland.
Jennifer Maldonado, Executive Director of the ECF, concurred:
ECF represented throughout the ULURP process that the Marx Brothers Playground was a JOP and not protected park or parkland.
Calvin Brown, Upper Manhattan Leader for the Department of City Planning [DCP], also backed their view:
Parcels that are in the joint control of the DPR and another agency are not ‘public parks’ for zoning purposes because their assignment to another agency (in whole or in part) means that the parcel is reserved for, or already serves, a non-park use….
The Marx Brothers Playground is not a ‘public park….’ Rather, it is in the jurisdiction of the Department of Education.
And, as if to complete the full-court press, Colleen Alderson, Chief of Parklands and Real Estate for the DPR, committed:
Marx Brothers Playground is not, and never was, dedicated parkland. Rather, the Playground is, and always has been, primarily intended to serve the needs of DOE; that agency has decision-making authority regarding current and future use of this jointly-operated playground.
Understandably, Mr. Karmel and Ms. Maldonado would pen anything they could to protect their endeavor, but what about Mr. Brown and Ms. Alderson?
Despite the hundreds of hours of testimony and months upon months of meetings that comprised the ULURP proceedings for 321 East 96th Street, neither the DCP not DPR offered an opinion on JOPs for the record. Their representatives weren’t even sworn in before any of the City bodies that handled the matter, enabling the ABC and ECF to characterize JOPs as they preferred.
So why then, in May 2018—and long after the fact—did Mr. Brown and Ms. Alderson suddenly draft affidavits on the issue? Why would anyone from the DCP, let alone the DPR, be so willing to come out in favor of unloading a parcel of public property to a developer?
Where the Money Leads
Maybe they were finally persuaded. According to documents filed with the New York City Office of the City Clerk and the New York State Joint Commission on Public Ethics, the ABC and ECF spent a total of $1.2 million to lobby for their project from November 2013 to June 2018. Their conduits of choice were Capalino + Associates, Tonio Burgos & Associates, Holland & Knight, LLP, Anderson Kill & Olick, P.C., Meister Seelig & Fein LLP, Perkins Eastman Architects, DCP and, oddly enough, the ECF itself.
At first, ABC actively courted Ms. Maldonado. Between November 2013 and June 2016, records show it dedicated $168,447 to win her support; or, as the paperwork specified, it was
Seeking designation by the New York City Educational Construction Fund for the development of 321 East 96th Street, currently known as the Marx Brothers Playground.
Next, ABC moved on Mr. Brown. From May 2016 to October 2017, Mr. Brown and his colleagues at the DCP were frequent targets. In order to secure its
Determination of a Board or Commission—Zoning Map Change, Zoning Text Amendments and Special Permits for 96th Street and Second Avenue,
ABC disbursed $431,709 to induce them. As its itinerary reveals, Mr. Brown was singled out nine times.
After ECF “designated” ABC for “the development of 321 East 96th Street,” it began its own outreach. Between July and August 2015, the ECF applied $3,196 to meet with a group at the DPR that included Ms. Alderson. Later, between January and February 2016, it used $1,889 to ply Ms. Alderson again on
The proposed development of a new combined occupancy structure (schools and a non-school portion) on a site bounded by 96th St. and Second Ave.
Then something incredible happened.
Between May and December 2016, ABC started pressing the “Executive, Legislative, and Administrative Branches of New York State Government.” It exhausted $68,000 on what was deemed a
Determination of Board or Commission—Approval of a park’s design, alienation home rule legislation.
Wait, what? In order to push the State Legislature for an “alienation” bill, ABC would had to have known it had a park on its hands that needed to be stripped of its protected status. Did Ms. Alderson or the DPR advise that MBP was a park in their prior meetings? Why else would ABC suddenly focus its dollars on “alienation legislation”? At any rate, it was about to send its best operator to Albany.
In October 2016, Ms. Maldonado, “Executive Director and Principal Officer of the New York City Educational Construction Fund,” designated “Jennifer Maldonado” to “lobby on behalf of the New York City Educational Construction Fund”:
She’d deploy herself again as a lobbyist in May 2017:
As submissions to the State Joint Commission on Public Ethics describe, Ms. Maldonado’s aim was the State Legislature. Specifically, she asked for its help with
Parkland alienation. The requirement that a municipality obtain legislative authorization in order to alienate parkland….
The courts have consistently held that “once land has been dedicated to use as a park, it cannot be diverted for uses other than recreation, in whole or in part, temporarily or permanently, even for another public purpose, without legislative approval.
Nonetheless, despite these maneuvers, both ABC and Ms. Maldonado denied MBP was ever a park in their affidavits. So why the distortion?
Well, their opponents argued they were trying to build on parkland. If ABC and Ms. Maldonado could puncture that assertion, perhaps their project could proceed. And, given the targets of their lobbying campaign, they must have known which of the marks they could leverage when necessary.
How else to explain the depositions Mr. Brown and Ms. Alderson produced? In spite of over 30 years of uninterrupted City policy—stretching from the Koch to Bloomberg Administrations—they gave up JOPs for dead. They even decried an expert, former DPR Commissioner Adrian Benepe (2002-2012), who submitted his own affidavit in May 2018 that read:
Based upon my forty years of experience and knowledge of parks in general, and the Marx Brothers Playground specifically, and from my recent research, I can state unequivocally that it is indisputable that the Marx Brothers Playground is a park, with no development rights.
What Robert Moses Said
But that still doesn’t explain why JOPs ended up on the DPR’s latest map. Why publish something that could be used as evidence in the pending Article 78 case? Perhaps there’s a reason for it in the past.
The first JOP–or, as Robert Moses termed it, the “jointly-operated recreation area”–opened in Brooklyn beside Fort Hamilton High School on June 11, 1938. Mr. Moses was only Parks Commissioner then; but, by the time Playground 96–today’s the Marx Brothers Playground–was inaugurated in 1947, he had also become the City’s Construction Coordinator and one of the seven Commissioners who comprised the City Planning Commission. As Robert A. Caro related in The Power Broker , these positions imbued him with an almost incomprehensible sway:
For the seven years between 1946 and 1953…no public improvement of any type—not school or sewer, library or pier, hospital or catch basin—was built by any city agency, even those which Robert Moses did not directly control, unless Robert Moses approved its design and location.
Consequently, he would have driven the proliferation of JOPs, not the Board of Education (today’s DOE). With a Parks Department press release in July 1956 entitled “New York’s Jointly Operated Playgrounds,” he made sure the reader knew it.
When he was made Commissioner in 1934, Mr. Moses observed that his “Parks Department Playgrounds were woefully inadequate” and “most school playgrounds were little more than barren yards.” He felt he had a mandate to build new playgrounds for parks and schools, especially in “congested districts,” but lamented that “the cost of property acquisition ranged from expensive to prohibitive.” After all, the City was financially handicapped in the midst of the Great Depression. It could “not afford to pay for two pieces of property and duplicate recreational facilities…where one well-equipped playground would suffice.”
However, as Mr. Caro once remarked, Mr. Moses “had this mind that leapt at power like a terrier.” When he had an idea, he got busy with blueprints. If he uncovered an opportunity, he’d be ready to pounce. No one in the city could move as quickly. And, as the JOPs report continued, the implication was clear. That “one well-equipped playground”? Well, it was already his:
In planning the orderly and realistic expansion of the Parks Department’s recreational system [not the Board of Education’s recreational system]… I [Robert Moses, and I alone] was able to enlist the support of the other members of the Commission, [the City Planning Commission, on which no official from the Board of Education sat] in a plan to construct and develop [which the Parks Department will be doing], adjacent to public schools and high schools, especially designed for the coordinated operation by the Board of Education and the Department of Parks.
The plan was fully supported by [not “proposed,” “approved,” or “financed by”] the President of the Board of Education… and the Superintendent of Schools….”
In other words, since he was the City Construction Coordinator and a Commissioner on the City Planning Commission, neither the President nor Superintendent had a choice but support him. JOPs were a part of his “expansion of the Parks Department’s recreational system.” If they contended otherwise, Mr. Moses could certainly refuse to authorize one of their own projects in the future. Besides, this wasn’t the first time he assigned JOPs to the purview of the DPR.
Two years earlier, in his preface to the “city parks” directory for 1954, Mr. Moses declared:
New York City has the finest urban park system in the world…. This pamphlet lists the more important and popular facilities of the park system.
In scrolling though the pages, you’d find some familiar names.
In the Bronx, it’s Pulaski Playground. In Brooklyn, there’s Bushwick Playground, Ft. Hamilton High School Playground (today’s Russell Pederson Playground), Kelly Memorial (today’s Kelly Park Playground), Stanley Avenue/Vermont Street Playground (today’s Linden Park), and Atlantic Avenue/Linwood Playground (today’s Sperandeo Brothers Playground). Finally, in Queens, it’s the John Adams High School Recreation Area (today’s Al Stabile Playground).
What do they have in common? They’re all Jointly Operated Playgrounds, and the DPR included them on its new map called “Next Stop: NYC Parks.”