Is New York City’s Marx Brothers Playground a Park?  The Answer is No Laughing Matter

January 16, 2018

A fierce legal battle is currently being waged between preservationists and the City of New York (“City”) over a parcel of land in Manhattan’s Upper East Side, known as Marx Brothers Playground.  The parcel, which is located between 96th and 97th Streets on Second Avenue, is named after legendary comics Groucho, Harpo, Chico, Gummo and Zeppo Marx, who were raised at nearby 179 East 93rd Street.  The 1.5-acre public recreation area was created in 1947, and currently contains soccer and baseball fields.  The portion of the site where the playground was located is temporarily being used by the Metropolitan Transit Authority as a staging area for the construction of the Second Avenue Subway.  The entire site is slated for redevelopment by a private developer, who plans to construct a high-rise, mixed-use building containing more than 1,200 apartments, three schools and commercial space.

Although City Parks Department’s leaf logo adorns the site, the property is officially classified as a “jointly operated playground” or “JOP” because it was established under the joint jurisdiction of both the Parks Department and Department of Education, which operates an adjacent vocational high school.  Typically, a JOP is used by the students of the adjacent school during the school day, and the general public outside of school hours.

In an effort to stop the proposed project, preservationists recently commenced an Article 78 proceeding, entitled Carnegie Hill Neighbors, Inc. v. City of New York (Index No. 161375/20017). The preservationists claim, among other things, that Marx Brothers Playground is parkland and, as such, cannot be conveyed by the City to a private developer without State legislation authorizing the termination of its use as a park and its transfer from the City.  Other opponents of the project fear that the redevelopment of the playground will create a slippery slope that will lead to private developers targeting other City-owned recreation facilities.  City officials, on the other hand, insist that the space is a playground, as its name suggests, and not parkland.  They also point out that the City plans to relocate and replace the playground elsewhere on the block.

What appears to be a minor matter of semantics is actually crucial to the outcome of the dispute.  That is because under the State’s public trust doctrine, parks cannot be “alienated” or used for an extended period for non-park purposes without State legislative approval.  The City claims that there is no similar requirement for playgrounds.  A parcel of land may constitute parkland either by express dedication, such as by deed or legislative enactment, or by implied dedication, such as by a continuous use of the property as a public park or recreation area.  Once land is dedicated to parkland use, the dedication is irrevocable absent specific State legislative approval.

The public trust doctrine can trace its roots to the nearly century-old case of Williams v. Gallatin, 229 NY 248 (1920), when a taxpayer sought to enjoin the City’s Commissioner of Parks from leasing the Central Park Arsenal Building to the Safety Institute of America, arguing that the transaction was “foreign to park purposes.” In prohibiting the lease, the Court of Appeals found that a park was a recreational pleasure area set aside to promote public health and welfare and, as such, “no objects, however worthy…which have no connection with park purposes, should be permitted to encroach upon [parkland] without legislative authority plainly conferred.” The Court stated that the legislative will was that Central Park “should be kept open as a public park ought to be and not be turned over by the commissioner of parks to other uses. It must be kept free from intrusion of every kind which would interfere in any degree with its complete use for this end.”

Prior to the filing of the lawsuit, the City Council and State Legislature had apparently determined that Marx Brothers Playground was, in fact, parkland, because the City Council submitted a “Home Rule Request” to the State Legislature seeking authority to “alienate” or discontinue its use as parkland.  The Legislature quickly acted on the request and passed bills (A. 8419/S. 6721) entitled “[a]n Act in relation to authorizing discontinuance of the use as parkland of the land in the City of New York commonly known as the Marx Brothers Playground.”  Opponents of the City’s plan appealed to the Governor to veto the legislation.  Governor Cuomo eventually signed the legislation, but he attached a “chapter amendment” in the form of a memorandum that ordered Rose Harvey, Commissioner of the State Department of Parks, Recreation, and Historic Preservation, to “investigate all of the property’s historical records, uses, and any other factor relevant to the land’s designation.”

As a result of this unusual move by the Governor, the City must now wait for Commissioner Harvey’s assessment before it can proceed with its plans.  It will also have to wait for the pending lawsuit to play out in the Supreme Court.