Summary: New York City’s community gardens form an integral part of life in many of the City’s neighborhoods. However, many current community gardens are at risk of being “evicted” from the City land on which they are located. In order to promote the benefits of community gardening, the City should afford greater legal protections and security to community gardens.
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By Jack Hornickel
New York City is home to over 600 community gardens, each created, maintained, and enjoyed by passionate community members. Yet, ultimately, most of these green spaces are operated on land owned by the City and controlled by a handful of agencies including the Department of Parks and Recreation, Department of Transportation, and the Department of Housing Preservation and Development (HPD). Despite the demonstrated commitment of the gardeners, the land on which they toil remains City property and can be recommitted to municipal use at the discretion of the agency that exercises jurisdiction.
Back in December, HPD invited developers to submit bids for the construction of affordable housing projects on certain public lands. Of the 181 sites made available for development, 17 are active community gardens.
Affordable housing has been a priority for the administration of Mayor Bill de Blasio. Along with his aggressive plans for development, Mayor de Blasio recognizes the “duty to protect and preserve the culture and character of our neighborhoods” and acknowledges the importance of community gardens. The Mayor further assures that his administration will “take a hard look at whether communities are best served” by the continuation of the gardens and will “make those decisions in partnership with each community.” However, neither the Mayor nor his HPD have any legal obligation to take a hard look at the contribution of community gardens, or even explain their criteria for choosing which lots to develop.
Community gardening in New York City is overseen by the GreenThumb program. In exchange for tools, materials, technical training, and use of the land, community garden groups must register with GreenThumb and sign a license with the City agency that exercises jurisdiction. HPD licenses allow for the operation of community gardens “for a set term
, unless earlier terminated.” HPD will exercise its sole discretion in any determination regarding GreenThumb garden licenses. Procedural protections are only afforded to gardeners after the lot has been transferred into private ownership for development. At that time, HPD must notify the gardeners and provide them with a list of alternate sites, detailing vacant City land within a one-half mile radius of the garden. The gardeners then have the opportunity to choose an alternate site and relocate. However, if there is no available vacant land in the area, HPD will simply notify the gardeners of the transfer and evict them.
This process pays shameful disrespect to the hard work of community gardeners. These groups of neighborhood volunteers spend long hours transforming blighted, trash-strewn eyesores into flourishing green spaces, often in the heart of the neighborhoods that need them most. The community gardens currently at risk of development offer on-site composting , host farmers markets , educate local youth , and of course, give intercity community members an opportunity to grow food, ornamental plants, raise chickens, or simply rest in the shade. Gardens add immeasurable value to communities. Unfortunately, since the GreenThumb program relies on revocable licenses, rather than leases, gardeners have no legal recourse in the face of development.
In fact, this exact scenario has played out before. In 1996, Mayor Giuliani directed HPD to auction all disposable municipal land to developers, putting hundreds of active community gardens at risk. Although the lots could be developed for any use consistent with zoning regulations, the city defended its policy by citing the need to construct more housing. A broad coalition of community gardening groups, block associations, advocates, and politicians filed suit against Mayor Giuliani and HPD. However, in New York City Coalition for the Preservation of Gardens v. Giuliani, et al (Supreme Ct, NY Cty, NY Oct. 15, 1997), the court considered and granted defendants’ motion to dismiss, finding that “with only a license revocable at will, [the plaintiffs lacked] a legally cognizable interest upon which to base standing.” The gardeners therefore could not challenge the land use determination, even though they were facing eviction from that very land.
But the Giuliani auctions were stalled long enough for a second round of litigation to ensue. In New York City Environmental Justice Alliance v. Giuliani (S.D.N.Y. 1999), two separate coalitions of community groups filed suit against Mayor Giuliani, alleging violations of Title VI of the Civil Rights Act and arguing that the auctions constituted City retaliation for gardeners’ protests, thereby violating the First Amendment. In a motion for preliminary injunction, the court recognized the possibility of irreparable harm but ultimately denied the motion, finding that plaintiffs had not demonstrated a likelihood of success on the merits. The gardeners would not be able to prove any intentional discrimination or show any evidence of retaliation. The Giuliani auctions were ultimately resolved by litigation brought by the State of New York, in combination with a maelstrom of bad press, aggressive protest, and $4.2 million in private conservation funding. In the end, 63 gardens were saved, and 28 were developed.
With only revocable licenses, the 17 community gardens that are currently at risk of development will have to rely on these same measures. Luckily, community gardeners are a rowdy, organized bunch with good ties to their elected representatives. At a recent rally on the steps of City Hall , several members of City Council voiced their support for the community gardens, calling on Mayor de Blasio and HPD to remove them from the list of development sites. Both the Manhattan Borough President and the Brooklyn Borough President wrote open letters demanding sustained protection of the gardens. Despite the public and political pressure, the Mayor and HPD have yet to take any decisive action. The community garden lots could be sold to developers tomorrow.
While vacant land should be kept available for the development of low income housing, gardeners deserve some land security for investing their time and energy in beautifying their neighborhood. In order to avoid these reoccurring showdowns, HPD and the other agencies that exercise jurisdiction over vacant lots should amend their regulations to account for committed community garden groups. New agency regulations should establish a protocol for short-term leases that coincide with the growing season, affording gardeners a guaranteed term of use. Residential development does not happen overnight, so community gardeners should at least have the opportunity to finish the growing season on their land. After a series of short-term leases, new regulations could offer multi-year leases to well-organized, committed community gardening groups, perhaps with an option to purchase. Many gardening groups are formally organized as 501(c)(3) non-profits and could feasibly raise the funds to purchase the lot and preserve it as green space. Leases are the most logical way to keep land available for development on a rolling basis while supporting committed groups of urban land stewards.
In the current system, a community garden licenserevocable at the sole discretion of the agency exercising jurisdictionis as good as an undated eviction notice.
Jack Hornickel is a 3L at Vermont Law School, enrolled in the JD/MELP program. While at VLS, he focused on food and agricultural law. He served as Symposium Editor for the Vermont Journal of Environmental Law and is currently finishing a Semester in Practice with the Natural Resources Defense Council. After graduation, he will be working with GrowNYC, providing business and legal services to small farmers in the New York City foodshed.
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