Who's in Charge of Public Spaces? A Lawsuit Raises Questions About Donors and Parks

When news broke about Barry Diller’s plan for a new park and entertainment venue to hover over the Hudson River, we were among the voices saying that it goes too far. Now the plan is headed to court, and the plaintiffs pose big questions about the nature of public space. 

Even in the increasingly heated world of massive gifts for public parks, the proposal to build an island park on Manhattan's West Side—to be funded mostly by Barry Diller and Diane von Furstenberg—seemed like a gauntlet thrown. For one thing, the plan seemingly came out of nowhere when it surfaced in November, even surprising some public officials. It also raised questions about how much Diller drove the process, and whether the outcome would truly serve the public.  

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Now, as was probably inevitable, there’s a lawsuit. The key plaintiff is the City Club of New York, a membership-based advocacy nonprofit that focuses on urban land use policy. 

The lawsuit—against the Hudson River Trust and the Diller entity Pier55, Inc., which would oversee the park—is largely concerned with what it calls insufficient environmental review and a secretive process. But more interesting from our perspective is the complaint that the plan doesn’t even qualify as a park, and is essentially an annexation of public land by private actors.

Or, as City Club President Michael Gruen told the Wall Street Journal: “From our point of view, it fits into a pattern of commercializing parks and selling assets that belong to the public.”

In other words, we’re not talking just about process violations here, or insufficient input from the public, although the suit does assert those things, calling it a fait accompli. The plaintiffs are saying that it’s more or less robbing the city of its park land. It cites the public trust doctrine, a common law principle, that certain resources such as park lands are held in trust by the government and can’t used otherwise without legislative approval. 

The lawsuit states (PDF) that the lease to the Diller entity “allows a non-governmental entity to build and operate a privately funded, manmade entertainment island in the Hudson River Estuarine Sanctuary without proper legislative approval,” and that the project “is better described as a private entertainment venue, rather than a public pier, as intended by the legislature.”

It cites Pier55’s ability under the lease to allow for private memberships, and to exclude the public from 49 percent of events held there with uncapped ticket prices, as well as the fact that it sidesteps the pier’s intended use for publicly available, water-related purposes like boating and docking.

“The proposed project cannot properly be called a ‘pier’—it is simply a large park-themed entertainment venue built on stilts over water.”

This lawsuit grapples with some big issues we see a lot in parks philanthropy, as many of the large projects that are meant to invigorate public spaces involve creative arrangements between private entities, nonprofits, and cities or states, some involving plans to create revenue. There’s also the fact that many of these large donations are benefitting donors who own or develop real estate next door.

Related: The New Golden Age of Urban Parks Philanthropy (And Its Controversies)

So the major question is, when does a parks project funded by private donors cease to be a park and start to be a commercial enterprise? 

While we’ve written about how Diller Island veers too far toward the latter, you can see how the question could become fuzzier. A lot of these philanthropic parks projects involve a grand vision, or pursue a pretty creative use of public space that stretches the concept of a park, which can be a really good thing. 

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In its defense of Pier55, the Municipal Art Society stated, "To oppose this project is to favor inertia over action, caution tape over ribbon-cuttings." It's easy for NIMBYism, or general fear of change, to throw monkey wrenches into visionary plans for urban space. On some level, the benefit of parks philanthropy is that it offers a champion and catalyst for plans that might otherwise stagnate. 

But what happens when that catalyst stretches the definition of a park too far? At what point does an exciting solution to fix a broken-down eyesore become a betrayal of public trust to fill a budget gap? 

We can't say for sure, but this much we do know: With big philanthropy rising and the government facing growing fiscal constraints, expect more battles like this to come.