The Last Shot at Saving the Elizabeth Street Garden

By Eric Uhlfelder

Any day now, the highest court in New York State will announce the start date for the final appeal to save Elizabeth Street Garden. The fact that the Garden is still standing and fighting is nothing less than miraculous given the forces seeking its destruction.

This hearing is also a chance to help rewrite New York law when it comes to government plans seeking to demolish green space. These actions have been happening with frightening regularity. Most recently, two Bronx parks were lost in the rebuilding of Yankee Stadium. East River Park and Wagner Park have also been levelled in the name of climate resiliency.

Nothing could be more Orwellian.

If the Garden wins this appeal, it should mean that government plans to eliminate green spaces in New York would require a formal environmental impact statement (EIS) to assess the effects of such loss and only to allow it when effective mitigation is provided.

These are just two of many rubs. First, a ruling in favor of the Garden will not prevent authorities across the state to continue to approve development plans that would destroy parks and nature preserves. And two, what is deemed to be mitigative actions by government officials will always be imprecise and arbitrary, which is evident in the debate over the future of Elizabeth Street Garden.

It’s been a long road for the Garden to have gotten this far.

Back in November 2022, we thought the Garden might’ve been saved from the city’s wrecking ball when a NY State Supreme Court judge ruled the city had to do a better job assessing the environmental impacts that would result from the Garden’s demise.

Instead of responding to the court order, the city appealed it to the Appellate Division of the NY Supreme Court. Last spring, a five-judge panel unanimously ruled the city could go ahead with its development plans for 123 units of affordable senior housing without further review.

A few months later, the Garden’s lawyers were on their last leg, testifying in front of an eviction judge, trying to stave off demolition.

Then something remarkable happened. The same group of judges that had dismissed the Garden’s arguments granted ESG the right to appeal its ruling. Considering how adamantly these judges had decided on behalf of the city, this decision was extraordinary.

They could’ve easily denied the Garden’s appeal, forcing it to go directly to the NY State Court of Appeals to plea for a final hearing, far less assured of securing that hearing. But they didn’t, declaring:

“. . . this Court, pursuant to CPLR 5713, certifies that the following question of law, decisive of the correctness of its determination, has arisen, which in its opinion ought to be reviewed by the Court of Appeals:

Was the order of this Court, which modified the order of Supreme Court, properly made?

This Court further certifies that its determination was made as a matter of law and not in the exercise of discretion.”

We don’t know why the Appellate Court opened the door for further litigation on behalf of the Garden. But the last sentence of its ruling suggests that the Garden may have a case, especially if the court exercises some discretion.

Representatives of the Garden believe they have a case that’s also grounded in procedure and law. They argue that during this critical period of climate change and environmental uncertainty, government needs to prove the destruction of a mature garden or park is indeed in the best interests of the city. If the court agrees, this would have statewide implications, raising the bar every time a town, county, or the state seeks to destroy green spaces it controls.

The Garden asserts that it’s essential for authorities to make an extensive environmental review. This would document the full range of impacts that will result from the Garden’s destruction and whether they can be effectively mitigated. ESG has been arguing the city’s previous environmental assessment was inadequate.

The Appellate judges themselves provided the clearest evidence of the city’s deficient review. They cited the only potentially mitigating argument for ESG destruction was distant access to Washington Square Park. But that park is outside the original city study area. This in itself should have denied the Square from having been considered a mitigating resource.

Washington Square is over a half mile away from the Garden. Further, the Garden is maintained (by a non- profit) as a peaceful, green, organically designed space. Washington Square, though quite beautiful, is an impromptu concert venue nearly all hours of the day and night and home to regular public protests. Trying to equate the two spaces is like comparing a quiet West Village bed and breakfast to a big Times Square hotel.

With increasing number of storms, the Garden also provides a degree of flood control for the neighborhood. And many officials seem to have forgotten how critical verdant open space is in our city when a public health crisis hits.

A hearing in front of the Court of Appeals—the highest court in New York State— doesn’t assure the Garden will be saved.

This time, maybe the court will ask the city if alternative development sites are available—a question that the Appellate judges did not ask. ESG has identified alternative cites in the map to the left.

At best, the Garden’s lawyers are hoping the court will rule a certified EIS is necessary before the city can consider moving ahead with its development plans. That report, ESG hopes, would show the city can’t mitigate the loss of the Garden.

Litigation has been a time-consuming and expensive endeavor for the Garden. On the other side, there has been no general accounting that has measured how much the city continues to spend fighting to destroy the Garden and whether that money could’ve been better spent for the citizens it’s seeking to help.

This final appeal does stop the clock on eviction. It allows ESG to further petition Mayor Adams to reconsider other locations where the city could build affordable senior housing. ESG is also requesting Adams to consider the Garden’s inclusion into a Conservation Land Trust that would permanently ensure its preservation and maintenance. See link below for details of ESG’s proposal.

ESG proposal

Here’s a short excellent video that takes you through this remarkable Garden.

elizabethstreetgarden.com