Eviction Is Back On for Lower Manhattan Greenspace
Officials from the administration of Mayor Eric Adams may padlock and evict the Elizabeth Street Garden (a publicly owned lot that connects Elizabeth and Mott Streets at mid-block, north of Spring Street and south of Prince Street) as soon as today. This comes on the heels of two recent developments.
First, on Friday, a federal court in Lower Manhattan rejected a plea by garden advocates to halt the City’s planned closure of the green space under a federal statute, the Visual Artists Rights Act (VARA), which confers the protection of a legal theory known as “moral rights” to the work of artists, allowing them to prevent “distortion, mutilation, or other modification of the work which would be prejudicial to [the artist’s] honor or reputation.”
This request for intervention by the federal court was filed in February by Joseph Reiver, a sculptor who is also the executive director of the nonprofit fighting to prevent the closure of the Garden. Mr. Reiver is the son of late art dealer and gallery owner Allan Reiver, who created the space in 1991 by turning a onetime abandoned lot into an open-air annex to his adjacent Elizabeth Street Gallery. In the quarter century that followed, the father-and-son team (supported by a small army of volunteers) filled the half-acre parcel with sculptures while cultivating a verdant garden there. Decades of improvements turned the space into a de facto public park that has come to be regarded by local residents as a treasured amenity.
U.S. District Court Judge Mary Kay Vyskocil’s March 21 ruling found that “the Garden is not a work of visual art within the meaning of VARA,” and that the law “expressly limits its protections to specified categories of traditional media of visual art.” She noted, “the Court does not doubt that the Elizabeth Street Garden is a work of art, as that term is used colloquially or in academic settings,” but added, “the Court simply notes that while, undoubtedly, many people wish to see the Elizabeth Street Garden remain intact, there is also a strong public interest in bringing the years-long multi-court litigation over the Garden to an end.”
This was a reference to more than a decade of court battles at the State level, which began with the 2014 announcement by the City’s Department of Housing Preservation and Development (HPD) that it planned to create permanently affordable housing for low-income seniors at the site of the Elizabeth Street Garden. Critics of the plan (dubbed “Haven Green”) were unappeased by a compromise vision that included both affordable housing for seniors and a new public garden that would shrink from approximately 20,000 square feet to roughly 6,700 square feet.
Hope for persuading New York courts to intervene faded last June, when the State’s highest court upheld a prior, lower court ruling that allowed the City to proceed. But after the HPD obtained legal permission to evict the non-profit headed by Mr. Reiver, an appellate judge agreed to consider a separate set of arguments, and then temporarily prohibited the agency from continuing with the plan until October 30. As that deadline loomed, the Appellate Division of the First Judicial Department weighed in, giving the Elizabeth Street Garden advocates until February to show why HPD should not be allowed to take possession of the site.
On February 26th, however, the Appellate Term of the New York Supreme Court (which reviews decisions by the Appellate Division) overruled the lower court, and reinstated the City’s permission to take possession of the premises. On March 7, HPD served a new eviction notice on the Elizabeth Street Garden saying City marshalls could seize the facility as soon as two weeks later, on March 24. Muriel Goode-Trufant, a lawyer for the City, noted, “the City is in an affordable housing crisis that particularly impacts low-income seniors. New affordable senior housing on the site will clearly serve the public interest. Litigation has already delayed Haven Green for six years. Any further delay would cause additional harm.”
She added, “as part of this project, the City is also creating dedicated open space, which will be open to the public from dawn to dusk every day. The City also entered into a lease with a neighboring property doubling the open space guaranteed for 60 years. Courts have repeatedly ruled in favor of the City and against Elizabeth Street Garden. Throughout these multiple lawsuits, Elizabeth Street Garden has not, until now, claimed that the Garden is a work of visual art, and has never invoked VARA.”
On Friday, the Elizabeth Street Garden filed an appeal with higher federal court, seeking to vacate Judge Vyskocil’s ruling. A spokesman for the group said, “while we are deeply disappointed in this decision, this is not the end of the fight. We are challenging the ruling and seeking to overturn it. We remain committed to defending the Garden as a unique work of art and a vital community space, and we will continue to pursue all legal options to stop its destruction.” The same spokesman acknowledged, however, “we are preparing for the possibility that the City may close public access to Elizabeth Street Garden and install fencing sometime this week.”