With open space at a premium during the Covid-19 crisis, cordoned off areas especially stand out. Here in East Harlem, one-third of the Marx Brothers Playground along East 96th Street is currently inaccessible. It remains part of a redevelopment project still being contested in the courts.
A Brief History
Approved by the City Council in August 2017, the joint endeavor between the Department of Education’s Educational Construction Fund [ECF] and AvalonBay Communities, Inc. was scheduled to bring about a billion dollars’ worth of building to the block. Three public schools, a 63-story residential tower, 20,000 square feet of retail, and a new playground were all included in the plan.
But following the Council’s endorsement, four community groups — Carnegie Hill Neighbors, Civitas Citizens, the Municipal Art Society of New York, and Friends of the Upper East Side Historic Districts — petitioned the State Supreme Court to review the City’s decision. Specifically, they questioned how the ECF characterized the Marx Brothers Playground — a substantial part of the development site — during the project’s assessment phase. That portrayal was key, they charged, because it prejudiced the evaluation.
In March 2019, when the Court convened an Article 78 proceeding, both sides offered compelling points of view.
The ECF and AvalonBay, as respondents in the case, argued that how they identified Marx Brothers was irrelevant. Whether parkland or not, that designation was in the past. In June 2017, after the State Legislature voted to “alienate” — or, strip it of its parkland status — the site of the Playground became subject to the City’s zoning laws. The partners were free to build something non-park related there.
The community groups, on the other hand, claimed that the ECF was confusing at best, manipulative at worst when relating which City agency has actual jurisdiction and control of the Playground.
Like its other 263 peers around the City, Marx Brothers is perhaps the least understood of the Parks Department’s properties. It’s a Jointly Operated Playground, or JOP. When school is in session, the Department of Education manages these sites for its students; otherwise, the Parks Department handles the rest: the maintenance, staffing, capital planning, construction duties, granting of permits for play there, and more.
When the ECF lobbied the State for an alienation bill, it represented the Playground as “a park.” However, when describing it to a meeting of Department of City Planning in May 2017, the ECF called it “a playground.” In their testimony before the Court, the community groups reasoned that had the ECF depicted Marx Brothers accurately, the decision makers would have explicitly understood that approving the plan for East 96th Street meant relinquishing parkland. City Planning, for example, might have asked the ECF to modify its design to accommodate the park. A move like that may have forestalled litigation.
Nonetheless, in April 2019, Justice John J. Kelley ruled in the respondents’ favor. He would not send their project back through ULURP — the City’s Uniform Land Use Review Procedure — to be reconsidered. In his opinion, Justice Kelley wrote that they “adhered to the procedural requirements of the ULURP process.” Therefore, the ECF and AvalonBay could move forward with their plan. He noted:
There is no merit to the petitioners’ contention that Community Board 11, the City Planning Commission, or the City Council would have withheld their approvals of the project had the ECF…expressly characterized the [Marx Brothers] as parkland.
He also determined that “all relevant [City] boards and agencies took the issue into account prior to their approvals.”
When asked for comment, Nicholas Paolucci, spokesman for the City’s Law Department, offered this on behalf of the defendant agencies in the suit:
We are pleased that the Court recognized the thoroughness of the City’s review for this important project. The community provided a lot of input into this initiative and now students, families, and others will be able to look forward to three brand new state-of-the-art educational facilities, a totally rehabilitated playground, and hundreds of affordable homes.
Neither East Harlem’s Diane Ayala (City Council-District 8) nor Nilsa Orama (Chair-Community Board 11) responded to questions; but Jon Huston, speaking on behalf of Gale Brewer (Manhattan Borough President), said:
Nothing to say on the Court decision. Our ULURP opinion supported the [East 96th Street] development.
Meanwhile, the community groups published a joint statement to the Municipal Art Society’s website. It read:
We are deeply disappointed in the Court’s decision to deny our Article 78 petition, and are weighing our next steps.
Continuing with his summary, Justice Kelley also addressed a key issue in the dispute: Which agency has jurisdiction and control of the City’s Jointly Operated Playgrounds? Choosing between the Parks Department or Department of Education, he affirmed:
JOPs are maintained by and under the jurisdiction of the New York City Department of Parks and Recreation (NYC DPR).
And, referring to how the City defines a “park” in the Zoning Resolution and Rules of the City of New York, he said the documents suggest
The City has dedicated all publicly owned playgrounds under the jurisdiction of the Commissioner of Parks and Recreation as parkland, subject to the Public Trust Doctrine.
In other words, the City’s JOPs, as parks, cannot be used for non-park purposes.
When asked for his reaction, Adrian Benepe, former Parks Commissioner, now President and CEO of Brooklyn Botanic Garden, said:
I welcome the statement about the Judge saying ‘JOPs are maintained by and under the jurisdiction of the Parks Department.’
The community groups concurred:
We are emboldened by Justice Kelley’s judgment…that Marx Brothers Playground (prior to its alienation), as well as all publicly owned playgrounds under the jurisdiction of the Commissioner of [the Parks Department], are parks protected by the New York State Public Trust Doctrine.
The Parks Department itself didn’t comment on the issue; but, rather, directed an inquiry to what Mr. Paulucci conveyed above. However, the Department has gone on record before with its view.
The Dispute Continues
In both an affidavit filed in the Marx Brothers case, and later, in testimony before the City Council’s Committee on Parks and Recreation, Parks officials declared that JOPs are not within the Department’s jurisdiction.
Perhaps puzzled by their position, Scott Stringer, City Comptroller, inserted a passage about JOPs into last year’s report on playground scarcity. In State of Play: A New Model for NYC Playgrounds, he wrote,
These properties remain in legally murky territory, with the City arguing that they are not protected by the New York State Public Trust Doctrine.
Therefore, he urged, JOPs require “stronger protections” to keep them “dedicated” for public use:
Given that the City is already deficient in its playground and park facilities, surrendering these properties to private development is severely misguided.
In May 2019, Barry Grodenchik (City Council-District 23), then Chair of the Council’s Parks Committee, expressed similar sentiment in an interview:
I am concerned that the JOPs need to be protected. I think that something has to be done with legislation — to put together a task force.
He observed that
When I drive by Marx Brothers Playground, it’s got the Parks logo on it — it’s a pretty strong sign that it’s a park. Yet this has been an issue that the City hasn’t tackled.
To that end, Mr. Grodenchik committed to “setting up a meeting with colleagues to craft some legislation.” Unfortunately, days after revealing his intent, he resigned from the Parks Committee. Since his departure, the City Council has yet to take up his initiative.
Meanwhile, the community groups resolved to appeal Justice Kelley’s decision. After delays due to Covid-19, the case is currently scheduled to be heard by the State Appellate Division, First Department on October 27th.
Photos by Rick Stachura. Marx Brothers Playground. September 8, 2020.
(1) 2nd Avenue and East 96th Street, looking north.
(2) Close up of the inaccessible portion.
(3) 2nd Avenue and East 97th Street, looking south.
(4) East 97th Street, looking south at the open portion.
(5) The park’s east entrance, looking west at the open portion.