Are park fees unfair? No.
August 27, 2002

By Henry J. Stern

 
    The city spends about $400 million a year to build and maintain a
system of more than 1,700 parks and playgrounds. In the last 25 years,
the Central Park Conservancy has raised and spent more than $250
million to keep and restore Central Park.

    The parks are free for anyone to enjoy. They are not free, however, to
corporations that want to occupy public space to promote their
products or services. People who use the parks to sell goods or to
raise funds have been required to help defray the costs of maintaining
the parks according to guidelines adopted and published by the Parks
Department.

    Over the years, a sliding scale of fees was developed, depending on
the size of the event, the interference with public use of the park,
the degree of commercialism, the costs the Parks Department would
incur, etc. The guidelines were codified and published in April 2001.

    Under these principles, Transportation Alternatives was charged $6,000
for a bicycle tour that began in the north part of Central Park. The
tour attracted thousands of riders, many of whom paid $35 registration
fees, closed off part of the park on a weekend morning and had a few
commercial sponsors with displays and product distribution. The event
was held without incident for three years.

    In 2001, the New York Civil Liberties Union became involved. It felt
that our rules were unfair and that the fee should be $25, the basic
charge for any park permit. It sued in federal court, and the judge,
Shira Scheindlin, without a trial, ordered the fees paid for three
years returned, granted lawyers' fees to the civil liberties union and
enjoined the enforcement of the parks rules.

    The judge's 47-page opinion arrogated to her the job of the parks
commissioner. There is nothing in the Constitution that specifies how
much commercialism should be allowed in parks, what should be paid for
commercial use of parks or how much product display or distribution
justifies a decision that an event is commercial. These are scarcely
egregious violations of basic constitutional rights. This decision is
a high water mark of federal intrusion into state and local issues of
relatively modest importance.

    This judge, however, is not alone. She is an advanced example of a
judicial tendency - both federal and state - to abandon self-restraint
and decide cases that come before the courts in a way the judges would
if they were the executive branch. Issues such as homelessness,
special education, jail conditions, housing, etc., are now under the
thumb of judges. Over the years, the thumb has become heavier with
repeated use.

    The judges have no responsibility to pay for the services they mandate or
the revenue streams they dry up. The costs they impose adversely
affect every other city agency that doesn't have a compassionate, or
meddlesome, judge to substitute his or her judgment for those of the
commissioner, who was appointed by the mayor, who was elected by the
people, who are supposed to have the last word.
 

Henry J. Stern is the director of NYCivic.