Saturday, April 21, 2012

What Makes a Park a Park?

On April 11, 2012, a decision was finally rendered in the lawsuit that has been going on since 2004 over the sale of land on Willard Place by the City of Hudson to Eric Galloway and his Lihtan Company. Tom Casey has the story in today's Register-Star: "2004 suit over land sale on Willard Place settled."

Galloway needed the land so that the two houses he had built behind 317 Allen Street, fronting and intruding on what had been, from its creation in 1874 until 1969, the private neighborhood of Willard Place, could have access to the street they faced. Don Christensen, who with his wife owns 8 Willard Place, opposite the new houses, brought a suit against the City for selling the land, maintaining that it was park land, part of what had originally been Willard Park, and could not be sold without an act of the state legislature approving the sale. 

When Christensen initiated his lawsuit in 2004, the City countered by bringing a lawsuit against him, declaring that the front porch on Christensen's 1893 Colonial Revival house encroached on the public street and ordering him to have it removed. At that point, Willard Place had already been designated a historic district by the Historic Preservation Commission, so the lawsuit, brought by the City, sought to force a resident to take an action in violation of its own preservation law. When this was brought to the attention of the Common Council Legal Committee, Jack Connor, then city attorney, said defensively, referring to Christensen, "Well, he started it."  

The City's lawsuit against Christensen was dismissed in New York Supreme Court in November 2007 by Justice Mary O. Donohue, who in her written decision used such phrases and words as "grasps at straws" and "fanciful" to describe the arguments presented by city attorney Robert Gagen, who had inherited the suit. 

Meanwhile, a trial in Christensen's lawsuit against the City was heard in July 2010 by Judge Paul Czajka, but Czajka resigned from the bench before making a decision in the case. The case eventually went to Justice George Ceresia, who, instead of retrying the case, heard oral argument in November 2011, and rendered a decision on April 11 based on the record of the trial. The decision finds that the plaintiff, Christensen, "failed to satisfy his burden of establishing that the disputed parcel constitutes parkland subject to the public trust doctrine." 

The decision makes no reference to the two documents which Christensen says form the basis of the case. The first is the conveyance deed from 1969, signed by all the Willard Place property owners, which conveyed two parcels to the City: the street and the park. According to Christensen, this deed follows the language of the original deed that created Willard Place in 1874 as two parcels: the street and the park. The other document is the minutes from the 1969 meeting when the Common Council accepted specifically the sixty-foot wide street that runs from Allen Street to the front of Christensen's property. The minutes mention only the street, not the park. There are a variety of laws and regulations that need to be followed when a municipality takes possession of a street, which prescribed the action of the Common Council in 1969, but there are not similar laws and procedures regarding the acceptance of park land, which would explain why the Council action makes no mention of the park parcel.  

The two documents--the conveyance deed and the Common Council minutes--were the evidence used by the attorney for the New York State Office of Parks, Recreation and Historic Preservation to confirm for Christensen that Willard Park was indeed a park under New York State law. In defining a park, the decision appears to support the City's premise that no area can be considered public park land unless "playground equipment, picnic tables, benches, garbage receptacles or signs" are present and the Youth Department has sponsored events there. 

Christensen also pointed out that the decision references property tax assessment maps, which he says are rarely used in property disputes except in the absence of deeds. In this case, there are deeds, and it is the deeds that define the park. Christensen provided Gossips with a copy of the first page of the deed for 325 Allen Street, which makes specific reference to Willard Park in its definition of the property's boundaries. 

Speaking of the documents and deeds, Christensen told Gossips: "The Court seems not to have addressed the content of these public documents. Does that mean that they are now considered fraud or incorrect or no longer valid? And, if so, do these public documents now have to be altered or expunged from the public record? It's very confusing. There are unanswered issues." 

1 comment:

  1. The Register Star's Tom Casey must not know that Rick Scalera is a special adviser to the Galvan Initiatives Foundation, and thus for Eric Galloway who figures in the case.

    Since the article only identifies Mr. Scalera as ex-Mayor and current "Fifth Ward Supervisor," the oversight significantly qualifies everything that he has to say about the outcome. It's safe to say that this was not Scalera's intention, but in the circumstances it disqualifies all of his statements. It makes it look like he is shilling for Galloway at the plaintiff's expense.

    It is an egregious enough error to earn a published "correction" on behalf of all involved parties.