Sunday, February 28, 2016

Gewirtz v. City of Long Beach....

Chapter 88 of the Code of the Town of New Hartford was adopted by the Town Board of the Town of New Hartford 10-3-1973 by L.L. No. 2-1973. Parts have been amended from time to time, but basically, the town code states that:
“The Donovan Memorial Park, Sherrillbrook Park, and the Washington Mills Athletic Park shall be opened to the general public (emphasis added by me) for pavilion rentals, field use permits and for normal passive recreational usage between May 1 and October 31 of each year following a daily opening and closing schedule as follows:

(1) May 1 to August 31, opening at 8:00 a.m. and closing at 8:30 p.m.

(2) September 1 to October 31, opening at 8:00 a.m. and closing at 7:30 p.m.”
Operative words are “opened to the general public”. That part of the code means that those particular Town of New Hartford Parks were dedicated by the Town of New Hartford as public parkland and they have been open free to the public for more than 40 years! There has been no entrance fee, the only charges have been for things such as the dog park, use of the pavilions, etc.

To get an understanding of just what the Town of New Hartford Code Chapter 88 wording means in relation to the proposed new local law, one only needs to read the court case of Gewirtz v. City of Long Beach.

The particulars of this case are quite similar to our current park situation in that both parks have been used for years as public parks open free to the public at large constituting a public trust and in both cases the parklands were enhanced by the use of government (state) grants.

For those who like to read all the facts, here is the full text, which was found on Leagle.com, to include a list of court cases that cite the Gewirtz case.

For those that want only the relevant parts of the case, the Gewirtz case concludes by saying:
“Having found that there has been a completed dedication of the Ocean Beach Park to the use of the public at large and that such dedication is irrevocable the court finds that it was beyond the governmental power of the Council of the City of Long Beach to restrict the use of the beach forming part of the Ocean Beach Park to residents of the city and their invited guests without specific legislative authorization.”
Yup, that means the court has ruled that the only way the town can impose entrance fees to dedicated public parklands for "some people" is through an act of the State Legislature; the current local law would most likely not hold up in court!

I would bet the farm that Town Attorney Cully has already reviewed the Gewirtz v. the City of Long Beach case, so one can only imagine why the town board is continuing to go ahead with a plan that the NYS courts has already ruled on, particularly when Supervisor Tyksinski has already said several times that "it's not about the money".

Supervisor Tyksinski, mind telling everyone exactly what it IS about?


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