What If a Park Is Not a Park?

 

NEW YORK, NY—NO, SERIOUSLY. Have you ever danced the Sirtaki at “Greek Night” in Athens Square, popped an ollie in Washington Park, or caught a summer blockbuster like Black Panther playing on Midland Field? Maybe you’ve dropped a bunt on the new synthetic turf at Patterson Playground or dribbled your way through three defenders en route to the rim at Peter’s Field. Well, if you have, you weren’t doing it in a park. According to the City, those spaces are actually classified as “Jointly Operated Playgrounds,” or JOPs.

In general, JOPs sit on land originally acquired by the Board of Education—today’s Department of Education (DOE)—and are run in partnership with the Department of Parks and Recreation (DPR). The DOE oversees them when classes are in session and the DPR takes charge on weekends and after school. The first JOP was probably today’s Russell Pederson Playground—found opposite Ft. Hamilton High School near Colonial Road in Brooklyn—which the Educational Construction Fund (ECF) notes as having opened in 1938. That aside, exceptions to the accepted model of “DOE ownership-DPR stewardship” can be found across the City.

 

A Committee Listens

Given the difficulty in identifying a JOP, the City Council’s Committee on Parks and Recreation held a hearing on September 17th to learn more about them. Testifying on behalf of the DPR, Matt Drury, Director of of Government Relations, said there’s at least 263 across the five boroughs: 44 in the Bronx, 86 in Brooklyn, 35 in Manhattan, 82 in Queens, and 16 on Staten Island. He acknowledged that his agency performs a number of tasks at JOPs—things like maintaining the grounds, conducting safety inspections, issuing permits, publishing rules of play, establishing open hours, and even funding capital improvements—but cautioned

 

We need to remember that the property exists for school purposes…. JOPs are under the Department of Education’s jurisdiction and control.

 

Representing the DOE, William Estelle, Executive Director of School Facilities, concurred with his colleague’s assessment. He explained that “JOPs are primarily for school use” and provide his organization with a “flexibility” for “school expansion potential.” Perplexed, Committee Chair Barry Grodenchik (D-District 23) mused

 

But when I see that tree leaf [the DPR’s London Plane emblem found on the fences of JOPs], it seems to me that they’re really parks.

 

 

What the Zoning Resolution Says

According to the City’s 1961 Zoning Resolution, the difference between an open space being stamped as a “public park” or something else—an “urban plaza,” for instance—has great significance. As defined in Section 12-10 of the Resolution, a public park is

 

[A]ny publicly owned park, playground, beach, parkway or roadway within the jurisdiction and control of the Commissioner of Parks and Recreation.

 

And, as specified in Section 11-13, public parks possess a feature foreign to urban plazas:

 

District designations indicated on zoning maps do not apply to public parks.

 

In other words, a public park can’t be “zoned.” It can neither be assigned a “floor area ratio” (FAR) nor generate allowable square footage for development. It carries a protected status that can only be revoked if both the New York State Legislature and Governor give their approval, a process called “alienation.”

So if JOPs aren’t public parks, as Mr. Estelle and Mr. Drury submitted, what does that mean? Well, they can be developed for commercial, residential, or other mixed use.

 

What the City Says

As the hearing wore on, Mr. Grodenchik, Andrew Cohen (D-District 11), Ben Kallos (D-District 5), and Mark Gjonaj (D-District 13) voiced concern over the Marx Brothers Playground, a JOP on Second Avenue between 96th and 97th Streets in East Harlem.

Last year, the Playground became the first of its kind to have its murky standing tested. As the lynchpin to a nearly $1 billion project developer AvalonBay Communities proposed for the block, Marx Brothers had been a problem for AvalonBay’s sponsors, the DOE and ECF, for years. To secure changes to the block’s zoning that the project required, the agencies ultimately argued that JOPs have development rights; they aren’t parks. With support from former City Council Speaker and East Harlem Councilwoman Melissa Mark-Viverito (D-District 8), the proposal survived the City’s Uniform Land Use Review Process (ULURP) and was authorized.

Concurrently, and acting “out of an abundance of caution” in the event they were wrong about JOPs, the DOE and ECF recruited the City Council to persuade the State Legislature and Governor Andrew Cuomo (D) to alienate the “park.” Eventually, they succeeded.

Because the decision-making process is presently being appealed in State Supreme Court, Mr. Estelle and Mr. Drury declined to classify the Marx Brothers site. But where do other State and City leaders stand on JOPs?

When emailed for comment, none of the borough presidents responded; neither did the Chair of the State Assembly Committee on Tourism, Parks, Arts and Sports Development, nor the Chair of the State Senate Committee on Cultural Affairs, Tourism, Parks and Recreation. However, when City Council Speaker Corey Johnson (D-District 3) was asked, Jacob Tugendrajch, City Council Press Secretary, replied

 

The Council strongly believes in the value of all kinds of open spaces whether they are NYC parks or DOE playgrounds. In order to determine whether a particular site generates development rights we need to look carefully at its unique characteristics.

 

Although Mayor Bill de Blasio (D) has yet to offer an opinion, a member of his administration has. During the ULURP proceedings for AvalonBay’s endeavor, Jennifer Maldonado, Executive Director of the ECF, writing to Marisa Lago, Chair of the City Planning Commission, declared that the

 

Marx Brothers Playground…Generates Zoning Floor Area.

 

Ms. Maldonado also noted that

 

We have discussed with the Department [of City Planning] Staff the status of the Playground under the Zoning Resolution and have been advised that, as a JOP, [the Marx Brothers Playground] is not considered a “public park” under the Zoning Resolution.

 

In lieu of a more official proclamation, Ms. Maldonado’s view puts the de Blasio Administration at odds with the stance of previous City management teams. For example, in its sprawling PlaNYC of 2007, the Bloomberg Administration accepted that

 

There are 269 Jointly Operated Playgrounds open for public use. Since 1938, JOPs have been considered designated parkland, which restricts how the land can be used.

 

And, in 1999, when the Giuliani Administration celebrated bringing the City’s park acreage to 28,000, it included playgrounds in the total:

 

In the past five years, the Parks [Department attained the milestone working with other City agencies]…to identify potential parkland both for natural areas and neighborhood playgrounds.

 

Together, those administrations illustrated the two ways open space can become a park in New York State: by either “expressed” or “implied” dedication.

 

What State Law Says

In Perrin v. New York Central Railroad Co., 36 N.Y. 120 (N.Y. 1867), the Courts formerly depicted a park as

 

An enclosed space in a city or village, set apart for ornament or to afford the benefit or air, exercise, or amusement.

 

So, if a municipality were to “enclose” a piece of land and “set it apart” for public enjoyment, it would automatically become a park.

On the other hand, in Croton-on Hudson v. City of Westchester, 38 A.D. 2d 979 (2nd Dept. 1972), the Courts found that if a parcel of city property had a long history of being used for “recreational purposes,” that custom would be considered a “dedication of parkland by implication.”

Finally, and perhaps more revealing, in Riverview Partners, LP v. City of Peekskill, 273 A.D. 2d 455 (2nd Dept. 2000), the Courts concluded that if a city treated an area as a park, the public accepted it as a park, and the city paid for its so-called “park maintenance” needs, that area would be given park status by way of implication too:

 

The municipality’s acts and declarations manifest a present, fixed, and unequivocal intent to dedicate.

 

However, in Glick v. Harvey, 32 N.E. 3d 944 (N.Y. 2015) the Courts acceded to an exception. If a city were to clearly state that specific “land would only be used as a park on a temporary basis until it was dedicated to its intended use,” there would be no dedication by implication.

So is that the case with JOPs? As Mr. Estelle disclosed in his testimony, they were always meant to be used as terrain for future school expansions. But without an official decree on record dating to the time of say, the debut of the Russell Pederson Playground, does his argument have any merit?

 

What Park Advocates Say

As park advocates spoke to the Committee on Parks and Recreation, they disputed Mr. Estelle and Mr. Drury’s assumptions. Citing how the Marx Brothers Playground was handled, advocates were apprehensive about what would happen elsewhere. They called for a more public debate of the issue.

Elizabeth Goldstein, President of the Municipal Art Society, said her team identified at least 20 other JOPs like Marx Brothers she feared developers could target next. She also warned

 

If [all the] JOPs across the city of New York were to have air rights today—if by some wave of the magic wand they were to have development rights—they would represent between 20 and 40 million square feet of development rights that aren’t currently on the books, which is the equivalent of 10 Empire State Buildings.

 

Lynn Kelly, Executive Director of New Yorkers 4 Parks, observed

 

We have a mixed message coming from the city about JOPs. We’re here to say we need to have a true public dialogue and a true public process when what is very scarce—open space—is right now under threat.

 

Carter Strickland, New York State Director of the Trust for Public Land, pronounced the Marx Brothers “implied parkland” and opined

 

I think it is a precedent. The logic of assigned air rights to open space is that we will see more pressure on JOPs around the city.

 

George Janes, an expert in zoning and planning, agreed:

 

If this is right, we’ve just designated all these JOPs for development rights.

 

Meanwhile, Lynn Kennedy, a member of the Friends of Astoria Heights Park, lamented the amount of time and money she and her group put into restoring what they thought was their community park:

 

People will be really surprised to learn their parks are not parks.

 

A member of the Jacob H. Schiff Playground Neighborhood Association, having himself done the same for years, assented:

 

My community would have a hard time being loyal to some “Jointly Operated Playground.” The playground is a park as far as we’re concerned.

 

Even Mr. Grodenchik was compelled to admit:

 

A view that a playground is not parkland is a view I don’t share.

 

But will any of these anxieties translate into legislative action?

 

 

“Not-a-Park” Scenarios

To appreciate the stakes, let’s revisit those JOPs from earlier. Surprisingly, a few of them skirt the stereotypical model of “DOE ownership-DPR stewardship,” further muddling the debate over what they truly are. But as we touch on the complexities, let’s assume what Mr. Estelle, Mr. Drury, and Ms. Maldonado have each assured is true: JOPs generate floor area and have development rights.

 

(1) Astoria, Queens

Athens Square, on 30th Avenue and 30th Street, is located on the same “lot” as the Henry David Thoreau School (P.S. 17). According to City records, the Department of Finance (DOF) recognizes the lot’s owner as the Department of Education (DOE). The Department of City Planning (DCP) verifies Athens as a JOP.

Inaugurated in 1971, Athens has had a long relationship with the DPR. In 1990, the agency financed a “reconstruction” effort there with $1 million from the City and later, in 1993, a “restoration and landscaping activity.” More recently, the DPR paid for new “fencing, gates, and safety surfacing” with funds from the City Council in 1997.

Nonetheless, if the DOE wanted to develop its lot, the present “R6/C1-3” zoning would allow an additional 226,688 square feet to be built there. The department could put that extra square footage—its “unused development rights,” or “air rights”—on top of Athens Square, the Thoreau School, or disperse it between the two. It could even sell those 226,688 sq. ft. to the owner of an adjacent property. Additionally, the lot’s “C1-3” zoning would permit the DOE to recruit a commercial business for occupancy along 30th Avenue. Any of those options could be done tomorrow “as-of-right” without public scrutiny.

 

(2) Park Slope, Brooklyn

Washington Park, on 5th Street between 4th and 5th Avenues, shares the same lot as the William Alexander Middle School (M.S. 51). Contrary to the JOP model, the DOF indicates that this JOP has two owners: the DOE and the Department of Citywide Administration Services (DCAS).

Opened in 1950, what constitutes Washington Park is often confusing. Although signage in the area suggests Washington is indistinguishable from nearby J.J. Byrne Playground and the Old Stone House, the DOF and DCP both map it as the space containing the skate park, dog run, and sections for handball and basketball.

As records describe, the DPR spent and average of $1,835 per week on maintenance there during the 2017 fiscal year. Moreover, in an interview with bklyner.com back in 2014, Kim Maier, Executive Director of the Old Stone House, explained that a partnership with the DPR, community groups, and elected officials raised $9.5 million between 2008 and 2014 to renovate the park surrounding the historic site. Presumably, some of that tally went to parts of the “officially” mapped Washington Park.

Nevertheless, if the DOE and DCAS decided to develop their lot, the extant “R6B” zoning would endow them with 95,499 sq. ft. of air rights left over from the Alexander School to deploy.

 

(3) Midland Park, Staten Island

Encircled by four avenues—Bedford, Boundary, Midland, and Mason—Midland Field is an anomaly spread across three separate lots. On the first, Midland splits space with the George L. Egbert Intermediate School (I.S. 2) that opened in 1964. On the second, east of Egbert, it comprises land acquired in 1966 that was actually designated a public park. Running between the second and Bedford Avenue, the third is a short, overgrown strip. Collectively, the DPR has referred to all three lots as a JOP since 1985.

Given its expenditures there, the DPR has reason to make that claim. In 1993, for instance, the $400,000 it secured from City Councilman John Fusco (R-District 50) went toward new sprinklers, asphalt, fencing, benches, play equipment, safety surfacing, and baseball backstops. Three years laters, the $41,600 it procured from Mayor Rudolf Giuliani (R) paid for a chain link fence. And, in 1998, when it tapped the mayor again for $80,362, the DPR laid a fresh steel fence.

Midland especially challenges the JOP model. As the DOF affirms, the DPR owns the deeds to the first two lots—not the DOE. (Given they’re under “the control of the Commissioner of Parks and Recreation,” are the two parcels already parks then as the City Zoning Resolution states?) The third, meanwhile, is again in the hands of both the DOE and the DCAS.

It’s confounding, but let’s stay with the lots. Carrying an “R3-1” zoning, the first with the Egbert School has 10,751 sq. ft. left of development rights. The second is a public park, but if JOPs aren’t parks and subject to their zoning district, the lot could suddenly sprout 158,561 sq. ft. of potential construction. Also assigned an “R3-1” zoning, the third has 17,820 sq. ft. to offer. All told, the fractured segments of Midland Field could yield a maximum build of 186,592 sq. ft.

 

(4) Mott Haven, The Bronx

Patterson Playground, on College Avenue between East 148th and East 145th Streets, is often associated with the adjoining John Zenger School (P.S. 18). Each, however, is on a different lot. Once again, the DOF confirms that the DPR owns Patterson—not the DOE. Even so, the DCP still vouches for Patterson as a JOP.

In the DPR’s possession since 1931, Patterson could have been wrongly linked to the Zenger School when it started seating students in 1960. Over the years, though, the DPR has not only garnered tremendous press for its activities at Patterson, but also substantial capital for major enhancements.

Formerly concrete, Patterson became a baseball field of synthetic turf with an outfield fence and two dugouts last summer. After signing up for the DPR’s “Adopt-A-Park” program, DREAM, a Harlem-based non-profit, raised $1.5 million to propel the transformation. A second revamp, intended bring new basketball courts, handball facilities, and other landscaping features into the mix, has nearly been funded. According to the DPR, the total purse includes an earmark of $300,000 from Mayor de Blasio and $2.2 million from former City Council Speaker and District Councilwoman Mark-Viverito.

Despite its spending there, the DPR could choose to exercise the lot’s present “R6” zoning one day. If so, it would have 290,549 sq. ft. of development rights to engage.

 

(5) Gramercy Park, Manhattan

Peter’s Field, on 2nd Avenue between East 20th and East 21st Streets, divides its lot with the Simon Baruch Middle School (M.S. 104). As is the case with Paterson Playground and Midland Field, the DOF holds that the DPR owns the lot—not the DOE. But again, the DCP considers Peter’s Field a JOP.

Opened in 1965, Peter’s Field has certainly benefited from DPR’s attention. In 1998, the DPR revamped its tennis courts, replaced old basketball layouts, planted trees, and seeded rare flowers like oakleaf hydrangeas and meidiland roses there. During the 2017 fiscal year, DPR employees worked an average of 20 hours per week at the scene and the department itself extended a total of $13,728 in maintenance fees.

However, if the DPR applied the area’s “R8B” zoning to its lot, it could employ the 226,668 sq. ft. of unused air rights left over from the building of the Baruch school. Since a plot along 2nd Avenue falls into an “R9A” zone, the adaptable square footage could be even greater.

 

What the Future Brings

Given these scenarios, the Committee on Parks and Recreation asked Mr. Drury if the City is currently appraising any JOPs for development. Again, replying for the DPR, he said

 

There are currently some JOPs under review for DOE expansion.

 

Mr. Estelle, answering for the DOE, confirmed four sites, but declined to say which they were. In the absence of legislative direction, the fate of those JOPs may ultimately depend on how the Marx Brothers Playground gets classified.

In October 2017, after Governor Cuomo signed the Marx Brothers’ alienation bill, he called for an inquiry. Attaching a chapter amendment, he instructed Rose Harvey, Commissioner of the New York State Department of Parks, Recreation and Historic Preservation, to review “all of the property’s historical records, uses, and any other factor relevant to the land’s designation.” However, the State Legislature has yet to vote on Cuomo’s amendment. If it isn’t considered before the end of the year, the amendment will have to be reintroduced when the new legislative term begins in January 2019.

Meanwhile, the Marx Brothers site has remained dormant.

When emailed for an update, Randy Simons, replying for Ms. Harvey, affirmed that Mr. Cuomo’s investigation has yet to be approved:

 

State Parks is awaiting legislative action on a proposed chapter amendment that would authorize State Parks to evaluate whether the playground is a park. The evaluation would include consideration of the history of operation and use of Marx Brothers Playground.

 

Where the Legislature has left the status of JOPs undetermined, perhaps the State Supreme Court will be more decisive.

In December 2017, the Municipal Arts Society, Carnegie Hills Neighbors, Friends of the Upper East Side Historic Districts, and Mark LaGuardia filed an “Article 78” motion compelling the Court to review the City’s decision to rezone Marx Brothers. With their lawsuit, the petitioners intend to stop AvalonBay’s impending project there on the grounds that

 

[The Educational Construction Fund] misstated and misled, either negligently or intentionally, the public, [the City Planning Commission], the Borough President, and the City Council as to the [status of the Marx Brothers Playground].

 

Moreover, they believe that

 

The City Respondents should have been estopped from contradicting their historic and publicly-stated position that the Park was parkland as to which no development rights attach, and therefore all [the City’s] subsequent actions and determinations were tainted.

 

So will the Court put an end the JOP debate? No matter its decision, when the parties convene on December 3rd, the proceedings could set a precedent for the City’s open spaces.

 

 

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Author’s Note: To learn more about the Marx Brothers Playground, please check out my original investigation here: “Manhattan Parcel with Murky Origins Could Frame a Debate Over Parks and Development in the City.”

 

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