Activists Sue Developers to Take Control of Community Garden

By Serena Solomon on March 10, 2014 5:05pm | Updated on March 11, 2014 8:41am

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 Members of the Children's Magical Garden are suing to be declared owners of the green space.
Children's Magical Garden Announces Lawsuit
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LOWER EAST SIDE — Members of a Lower East Side community garden are suing to take control of the green space, arguing that the lot's longtime owner effectively abandoned it.

Members of the Children's Magical Garden filed a lawsuit in New York Supreme Court Monday, asking to be declared owners of the lot at 157 Norfolk St. and seeking an unknown amount of damages after the space's former owner, developer Serge Hoyda, fenced the gardeners out of his portion of the space last year.

Garden members are also suing the lot's new owner, 157 LLC, which is connected to developer Horizon Group and bought the space in January. 157 LLC has already filed permits with the city's Department of Building's to construct a six-story building on the garden site.

Ownership of Hoyda's portion of the garden has been disputed for several years, with garden members accusing Hoyda of abandoning the lot to trash and drug dealers three decades ago, according to court documents.

Garden members claim in the lawsuit that the New York State law of "adverse possession" makes them the rightful owners of the lot. Under the law, someone has the right to ownership if they have occupied a property for at least a 10-year period.

"We love the whole garden," said the garden's director Kate Temple-West. "We have been actively supporting the earth here for more than 30 years, for a very, very long time."

Local volunteers established the Children's Magical Garden in 1983 on the corner of Norfolk and Stanton streets, and since then it has grown fruit and vegetables, along with a community. The garden hosts classes from nearby schools, is the site of cultural events such as poetry readings and often has an open gate to anyone walking by. 

Part of the garden's lot was owned by Hoyda and the rest was owned by the Department of Housing Preservation and Development.

On May 15, 2013, workmen hired by Hoyda constructed a chain and plywood fence cutting off gardeners from his part of the land. The lawsuit claims that workers "trampled, destroyed and damaged" plants and entered the property without necessary permits.

 Contractors dig holes at the Children's Magical Garden to construct a fence cutting off public access to half of the garden.
Contractors dig holes at the Children's Magical Garden to construct a fence cutting off public access to half of the garden.
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DNAinfo/Serena Solomon

The damage has not yet been calculated and will depend on the course the litigation takes, according Benjamin Burry, at attorney for Sidley Austin, which is representing the garden.

Hoyda and the new owners, Horizon Group, did not respond to requests for comment.

Following the construction of the fence, members of the garden successfully petitioned the Department of Housing Preservation and Development to transfer their portion of the garden to the Parks Department so that land can remain a permanent green space.

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