Coney Island Boardwalk (active)

Brief Case Overview: In the early morning hours of Dec. 28, 2013, a construction crew sent by the City of New York and NYSE-listed developer iStar Financial bulldozed a decades-old community garden and fenced an acre of parkland—one of the only green spaces in the underserved West Coney Island community. This lawsuit was brought on behalf of nearly fifty local West Coney Island community members, gardeners, and community activists, as well as People’s Coalition of Coney Island. It seeks to prevent the development of a locally unwanted $53 million amphitheater—a pet project of former Brooklyn Borough President Marty Markowitz—and it seeks to return over an acre of parkland and gardening space back to the local community.  For years, the City has poured money into a sliver of Coney Island in and around the amusement district, yet it has ignored the nearby underserved communities, which are plagued by flooding, exacerbated by some of the most neglected infrastructure in the city.  Now the City, along with billion-dollar developer iStar, which owns over 70 percent of nearby developable land and continues to acquire more, suddenly wants to “invest” in the community—by destroying a much-loved park and garden to build an amphitheater that provides occasional concert space for visitors to the community, but little to the community itself.

The City rushed through its insufficient environmental review of the proposed project, excessively downplaying such important issues as runoff, destruction of natural resources, and flooding, especially in light of the threats posed by climate change; it approved the project on the final day of the 2013 legislative sessions, and then bulldozed and fenced off the park/garden, at 5am later that week.  In doing so, it illegally alienated public parkland, which must remain accessible to the public as part of New York’s Public Trust Doctrine.  As such, NYELJP on behalf of the Petitioners challenged the project on both environmental and Public Trust grounds, and are seeking a halt to the development, pending further environmental review, and a restoration of one of the few green spaces in their community.

Factual Background: West Coney Island is one of the poorest areas of the city, with median household incomes well below $25k. It is also one of the most diverse communities in the City: many of the petitioners in this suit were born in Latin America, China, the former Soviet Union, or Eastern Europe, and those born in the U.S. are mostly African American. Most residents reside in public housing, and unemployment is high.  The neighborhood itself suffers from its location: it is far from the main economic centers of NYC, has little economic activity of its own (outside the nearby seasonal amusement district), has crumbling infrastructure (visible most clearly in its roads, sewers, and housing), and has to deal with frequent flooding.  Moreover, it suffered the brunt of Hurricane Sandy’s impact in 2012, evidence of which can still be seen on empty lots and other unimproved areas.  While the neighborhood does have access to the nearby beach and boardwalk, it lacks parks and green space.  In fact, many of its community gardens were closed and sold off to developers during the Giuliani Administration—with an exception being the Boardwalk Community Garden, which in 1997 was transferred to the Parks Department in order to create, to quote one of the then-Directors at the Parks Department, “a permanent community garden.”

For years, that garden thrived, and was used by members of the community to grow food and hold events, and it served a much-need gathering place during the summer months.  Yet in the mid-2000s, the City began to regret its decision to make permanent this park, which is in a prime location adjacent to the boardwalk.  In 2004 and 2007, it tried to close the garden to construct a parking lot for a nearby stadium, yet the plans fell through, and the community continued to enjoy and improve the land.

In 2012, Hurricane Sandy decimated the site, yet the community soon worked together to remove the debris and replant, and by the following summer they had restored the park to much of its original glory.  Then, in December 2013, the City approved the development and sent in the bulldozers, and did what Hurricane Sandy could not: keep the community off the land.

Potential Impact of the case: Coney Island, and particularly the poorer west side, is adjacent to the ocean and suffers from flooding and sewer overflows that are only predicted to worsen as sea levels surely rise.  The development project at issue in this case would only exacerbate the area’s environmental problems—by replacing acres of naturally porous green space with landfill and a concrete amphitheater, and by destroying a public park and gardening space.  The Park and Gardens for Coney Island, a critical zone, provide necessary retention and drainage.  The project alters the flood plain, precluding feasible solutions to prevent flooding and runoff that historically and necessarily flow into the surrounding residential community.

This litigation seeks to (a) reopen Lot 142 and the Boardwalk Garden to the community; (b) prevent the development of the locally unwanted amphitheater project pending further environmental review and community consultation; and (c) establish legal criteria for protecting other parks, public lands, and gardens throughout the state, especially by applying the Public Trust Doctrine to implied dedication parkland (this doctrine requires express legislative authority from Albany to alienate parkland, and requires park-related uses for development).

Current Status of the Case: As of April 26th 2016 the Supreme Court of Kings County has dismissed the case on the merits and all requests for preliminary or permanent injunctive relief have been denied. This decision took over two years and three judges to decide. First, our initial judge recused himself just as we were expecting a ruling.  Then, the new judge asked for a rehearing in December, followed by supplemental briefing.  Then that Judge was transferred from the case.

We have filed a Notice of Appeal of this bad decision to the First Appellate Division.  New York City Community Garden Coalition (NYCCGC) has sought and retained a pro-bono team (of which the Law Project is part) to perfect the appeal. The appellate courts are far less political, and thus may provide a more fair and accurate reading of the disputed factual history herein and the case law pertaining to the Public Trust Doctrine. Throughout the case the City and the developers continued construction and our request for a temporary injunction was denied.

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