Community garden lot swap on hold

| 22 Dec 2015 | 10:09

A pending agreement that would have allowed a community garden on West 105th Street to remain on two contiguous lots — and ensure that it won’t be lost to development — has stalled because of a deed restriction.

Earlier this fall, the owners of two of the lots on West 105th Street — the Manhattan Land Trust, which owns the easternmost lot, and two Manhattan Valley families, which together own the middle of the garden’s three lots — had in principle agreed to swap plots.

But the deed for the easternmost lot says that land “shall be used in perpetuity for open space purposes, and for no other purpose.” The lot was sold in 1999 by the city’s Economic Development Corp. to the Trust for Public Land and then conveyed to the Manhattan Land Trust about five years ago.

The Manhattan Land Trust’s president, Genevieve Outlaw, said the trust must get the EDC to sign off on the exchange and, in the process, ensure that the open-space provision carries over to the swapped lot. The garden is on the north side of West 105th, just east of Columbus Avenue.

“We still want to pursue the land swap,” Outlaw said. “It’s just a postponement.”

But one of the middle lot’s owners, Elizabeth Kellner, said the postponement represents yet another obstacle in concluding the swap, which she herself proposed to the MLT and the gardeners at La Perla, as the garden is called. Kellner said the process has so far been pockmarked by a lack of clarity and communication from the gardeners and the trust.

“This is the reward of patience as opposed to building a fence last May,” Kellner said a day after receiving a letter from Outlaw outlining the deed’s provision and consequent snag. “Here we are Dec. 14th and we’re right back where we were in September. So that’s my good-guy reward.”

La Perla’s fate had been uncertain since the spring, when the two families decided to sell the 17-foot by 100-foot property they purchased for $500 at public auction in the late 1970s. The sale of the lot, now assessed at about $350,000, and its likely development would have made it exceedingly difficult for the gardeners to salvage their venture on two lots in all likelyhood separated by new construction.

But an exchange would allow the gardeners, who with permission from the two families have tended to dozens of roughly four-foot by eight-foot raised beds since the mid-1990s, to reconfigure the garden on two joined lots.

Kellner cited the annual $15,000 tax bill as a significant reason for putting the lot on the market.

Although the idea of a swap was brought up informally shortly after Kellner said the couples wanted to sell, several people connected with the garden they were skeptical that an exchange could be worked out. It fell to Kellner to suggest a possible trade. She did so in September, broaching the idea with Outlaw.

“Everybody concluded that the best way to go was to do the swap” given the prospective sale of the Kellners’ lot and its likely development, Outlaw said. “We a lose a third but we will be able to retain two-thirds of what was La Perla,” she said. She nevertheless called the loss of one-third of the garden “devastating.”

“It just came down to we couldn’t raise that kind of money,” she said. “It’s about protecting the plot that we have. ... It doesn’t feel good, but we have to protect what we can.”

The Manhattan Land Trust has enlisted the New York office of the not-for-profit Trust for Public Land, the national organization that created the Manhattan Land Trust, to assist in the conveyance of the deed’s open-space provision to the swapped lot. The director of TPL’s New York City Program, Andrew Stone, said he would endeavor to clarify for MLT “whether the restrictions can simply be transferred to another lot.”

Councilman Mark Levine is also working to bring about the swap, calling it the best possible outcome.

“It’s a loss to lose green space like this. There’s no way to sugarcoat it,” he said. But “to have split the property down the middle would have been devastating.”

Officials at the Economic Development Corp. did not respond to a request for comment.

In September, the gardeners and their attorney, Inshirah Muhammad, looked into whether they could use the principle of adverse possession, a common-law doctrine that entitles caretakers of property to gain title if its legal owner has neglected the land, to take ownership of the middle lot. That provision, however, hinges on an initial hostile takeover. Given that Kellner explicitly granted the gardeners permission to use the lot and that she and the other family having been paying taxes on the lot, that effort would likely fail in court. Muhammad did not return phone calls requesting comment.

Kellner has been frustrated by what she said was the process’ protracted pace. She said it was just a few weeks ago that she received the names of the attorneys representing the gardeners, documentation of insurance and other material after having requested the information months ago. Kellner said she has so far been unable to get the names and contact information for the garden’s officers, which leaves her unsure that she is communicating with the relevant people.

It was only through social media that she was able to figure out what the gardeners were thinking and planning after she told them about the lot’s impending sale, she said. She said the lack of clear communication channels was reflected in the gardeners’ effort earlier this fall to fund-raise an amount equal to the taxes owed on the land and thereby keep the lot from the market until a sufficient amount could be obtained to buy the lot.

“Nobody asked us if we want to do that,” Kellner said. That scenario, she said, was never an option for the families, she said. “We want to be rid of the responsibility for the lot,” she said.

Publicity about the garden has brought a number of potential buyers forward, Kellner said, a fact not lost on the gardeners.

“It’s unfortunate it didn’t bring more philanthropists to our side,” said Marc Wishengrad, who has been tending a plot at La Perla for more than 20 years.

But he also said that Kellner and the other owners could have been more ruthless when they decided to sell.

Wishengrad said the garden had helped mend a neighborhood where the drug trade and attendant violence were near-nightly occurrences when it took root.

“It’s given a lot of people a lot of pleasure,” he said. Although La Perla will likely be radically altered, a swap is the “lesser of two evils,” he said.

“I just wish we could have been the buyer,” Wishengrad said.