The Marx Brothers Playground on the border of East Harlem and the Upper East Side.
The Marx Brothers Playground sits at the border of Manhattan's East Harlem and Upper East Side. It has become the site of a battle over the jurisdiction of New York City's Jointly Operated Playgrounds. Rick Stachura/CityLab

A proposed luxury development in Manhattan has highlighted the murky status of Jointly Owned Playgrounds. Are they people’s parks or possible development sites?

In New York City, public parks, or, as the New York City Zoning Resolution of 1961 reads, “any publicly owned park, playground, beach, parkway or roadway within the jurisdiction and control of the Commissioner of Parks” are special.

They’re exempt from zoning laws and don’t generate usable floor area. In other words, developers can’t build on them. As the City Charter reads, “The rights of the city in and to its … public parks … are inalienable.” Only an act of the State Legislature can strip them of their protected status and free them for other purposes.

A recent battle over the site of a billion-dollar development that will raze the Marx Brothers Playground on the border of Manhattan’s East Harlem and Upper East Side, has highlighted the murky status of some properties.

The New York City’s Department of Education (DOE) is challenging the Department of Parks and Recreation over which properties are actually under its “jurisdiction and control.” According to the City Charter, playgrounds adjoining public schools are not under the Parks department’s purview, all except one: the Jointly Operated Playground (JOP). Both agencies share responsibility there. However, in moving to oust the Parks department from JOPs, the DOE could set off the city’s next great land grab.

In the beginning, with Robert Moses

In 1934, after being appointed first Parks Commissioner of all five boroughs, Robert Moses scoffed. As he described years later in a press release, Moses found the Parks department playgrounds he inherited as “woefully inadequate” and those belonging to the Board of Education (the forerunner to the DOE) little more than barren yards.”

He resolved to build new ones, especially in “congested areas” of the city “where they were most needed,” but soon discovered the “cost of property acquisition ranged from expensive to prohibitive.” After all, the city was in the midst of the great depression. It couldn’t afford to buy “two pieces of property and duplicate recreational facilities” in places where just one playground both “well-equipped” and adequately staffed would “suffice.” So how would he do it?

A 2001 plaque commemorating the 50th anniversary of the Marx Brothers playground. (Rick Stachura)

Moses was a few years off from being able to affect the city’s capital budget as a commissioner on the City Planning Commission and City Construction Coordinator, so he turned to the depression’s top venture capitalist for help: the federal government. Years later, writing in a Parks department memo, he celebrated the move: “[With] the tremendous aid of the Works Progress Administration, New York City’s parks and playgrounds expanded, multiplied and were developed rapidly.”

As Robert A. Caro calculated in his exhaustive 1974 biography of Moses, The Power Broker, the Works Progress Administration [WPA] and its affiliates “contributed more than $1.2 billion” to public works projects in the city between 1934 and 1939. Since the architects and engineers Moses hired were proficient in drafting actionable plans, Mayor Fiorello La Guardia ended up earmarking more of the federal aid to the Parks department than any other city agency. As a result, Moses was able to amass more land for his gambits and chart “the orderly and realistic expansion of the Parks Department’s recreational system.” So, an idea like the one he had for combining Parks and Board of Education playgrounds was fed into the vast Parks machinery and reassembled as the JOP.

The first JOP—or, as Moses termed, “the jointly operated recreation area”—opened in Brooklyn beside Fort Hamilton High School on June 11, 1938. It was one of the 15 JOPs he unveiled that decade. Continuing in The Power Broker, Caro recalled the public’s reaction:

“Little children in New York City during the 1930s cheered the Parks Commissioner … by present[ing] him with tokens of their esteem, such as two scrapbooks containing the names of ‘thousands’ of boys and girls from the summer day camps run in his parks by the WPA and the Board of Education. … And the city’s children weren’t cheering any louder than its adults.”

Why not? Well, Moses intended the JOPs for both populations. When classes were in session, the Board of Education would run them exclusively for students and their physical education; when classes were out, the Parks Department would tailor them to local residents and their styles of play. Before he retired as Commissioner in 1960, Moses inaugurated 179 JOPs, 70 percent of New York’s presently active 263. (While there is no “master list” of JOPs anywhere, according to a recent check, both the New York City Council Parks Committee and New York City Open Data platform cite 263. However, in 2007, the administration of Michael Bloomberg tallied 269.)

Characteristics of a Jointly Operated Playground

Slight or sprawling, take your pick. The smallest of the JOPs is Chiarantano Playground in East Flatbush, Brooklyn. It’s less than a quarter of an acre. On the other hand, the largest is also in Brooklyn, Linden Park in East New York. It’s over nine and a third acres.

Some are still young—like P.S. 29 Ballfield in the Melrose neighborhood of the Bronx, for instance, which became a JOP in 2008—and others are quite old, like Bushwick Playground in Bushwick, Brooklyn, which has been providing amusement since 1907, and likely became a JOP sometime in the early 1960s when the school it now borders was built.

They’re often unique. Whereas in the Bronx neighborhood of Tremont, there’s Mapes Pool with its benches and restrooms surrounding two open-air pools; in Astoria, Queens, there’s Athens Square with its three Doric columns and a Socrates statue peering down on the passing pedestrians.

But they’re always by schools, and in each of the boroughs. Nearly all of the City Council districts have them—49 of 51. You’re most likely to find one around District Eight in Manhattan (East Harlem-Mott Haven-Highbridge-Concourse-Longwood-Port Morris) or District 26 in Brooklyn (Bedford-Stuyvesant-Crown Heights North). Each contains 15.

The land JOPs occupy was acquired by different means, and they sit on often complicated tax lots, but they all have a common benefactor: the Department of Parks and Recreation.

The Parks department names them, allocates for them in its fiscal budget, provides for their maintenance, hires their staff, manages their capital improvements, contracts their construction work, conducts their safety inspections, issues the permits for people to use their fields, and establishes all their rules and regulations.

From the time of their inception through the more recent administrations of New York City Mayors Koch, Dinkins, Giuliani, and Bloomberg, New York City has continuously claimed JOPs as pieces of the parks system. In 2007, for example, when the city announced its vision “for a greener, greater New York” with the PlaNYC, it declared “There are 269 Jointly Operated Playgrounds open for public use. Since 1938, JOPs have been considered designated parkland, which restricts how the land can be used.”

However, over the past three years, officials from Mayor Bill de Blasio’s administration—and, in particular, the DOE—have said otherwise.

So why the sudden shift in policy?

This manhole cover at the disputed Marx Brothers playground is just as “misinformed” as everyone else about the Department of Parks and Recreation, rather than the Department of Education, being in charge. (Rick Stachura)

Well, in early 2016, the Department of Education, acting through the New York City Educational Construction Fund (ECF), chose developer AvalonBay Communities to bring three new schools to a site in East Harlem. Known as 321 East 96th Street, the full city block contains the School for Cooperative Technical Education and the Marx Brothers Playground, a JOP. In order to make the proposition profitable for AvalonBay, the ECF intended Marx Brothers to be used as the base of a 63-story residential tower. To facilitate the process, the ECF represented that Marx Brothers was not a park.

In August 2017, the city approved the plan, but the Educational Construction Fund made an odd move, too: It obtained a bill from the State Legislature that removed the Marx Brothers from parkland status. In response, perplexed community groups and park advocates temporarily stayed the project with an appeal to Governor Cuomo and a petition to the State Supreme Court. Cuomo introduced an amendment in the Legislature to have the State Commissioner of Parks clarify how JOPs are catalogued, but the bill expired without a vote at the end of 2018.

In March 2019, the Supreme Court finally heard the petition. Called an Article 78 proceeding, the Court listened to arguments both for and against the project. Ultimately, a judge will rule if the ECF was deceptive in its push to redevelop 321 East 96th Street, but it’s unclear if he’ll also decide what JOPs are. For now, though, there’s the position of the current administration.

On one side, there’s the DOE: Jennifer Maldonado, Executive Director of the ECF, John Shea, Chief Executive of the Division of School Facilities, and William Estelle, Executive Director of School Facilities. All have asserted that JOPs were originally conceived for “school expansion potential” and Marx Brothers “is not a protected park or parkland.”

Joining them, there’s the Department of City Planning. Calvin Brown, Upper Manhattan Leader, has affirmed that “Parcels in the joint control of the DPR and another agency are not ‘public parks’ for zoning purposes.”

And, surprisingly, two administrators from the Department of Parks and Recreation support them: Matt Drury, Director of Government Relations, and Colleen Alderson, Chief of Parklands and Real Estate. They’ve also acceded that JOPs belong to the Department of Education and “Marx Brothers Playground is not, and never was, dedicated parkland.”

On the other side, well, there’s community groups but officially, nobody—or nobody who reports to Mayor de Blasio. As for elected officials, Corey Johnson, current Speaker of the City Council, was the only one of many contacted to respond to an inquiry about JOPs. Through a spokesman, his office said that he “believes in all kinds of open space,” but “[i]n order to determine whether a particular site generates development rights, we need to look carefully at its unique characteristics.”

The possibilities, if JOPs can be development sites

If JOPs were suddenly imbued with development rights, what would happen? In September 2018, Elizabeth Goldstein, President of the Municipal Art Society, told a hearing of the City Council Committee on Parks and Recreation that the impact would be unprecedented: “If [all the] JOPs across the city of New York were to have air rights today—if by some wave of the magic wand they were to have development rights—they would represent between 20 and 40 million square feet of development rights that aren’t currently on the books, which is the equivalent of 10 Empire State Buildings.”

But how might that look at the local level?

Take Wingate Park in East Flatbush, Brooklyn for instance, one of the largest JOPs in the city. It sits on a single tax lot with four schools. Records indicate that the DOE and the Department of Citywide Administrative Services own the property.

Since the lot is in an “R6” zoning district, that means they could build an additional 584,463 square feet of something “residential” there. They could put that square footage—their “unused development rights” or, simply, “air rights”—on top of Wingate Park, one of the schools, or wherever else they wanted. They could even sell those 584,463 square feet to the owner of an adjoining property. Moreover, it could all be done tomorrow “as of right.” Their plans wouldn’t be subject to public review.

This, of course, begs a serious question: If the JOPs were no longer parks, would the DOE then broker their air rights to investors all over the city?

Take, for example, the fact that many JOPs are like the Marx Brothers Playground: They’re set along highly trafficked streets. What if the DOE could suddenly market their location for other uses? Maybe they’d become hotels, affordable housing units, or luxury condos.

In any case, the “inalienable” right of all New Yorkers to these lesser known parks would be revoked. Is it worth removing them from the “jurisdiction and control” of the Parks department for the sake of the city’s development?

As of now, there has been no movement in the Supreme Court case, but if the Parks Department loses jurisdiction, the dual spirit of the JOPs—to bring physical education to students and recreation to nearby residents—would probably be eviscerated.

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