somerville dog

Congratulations NYCdog!

The New York Council of Dog Owner Groups applauds the State Supreme Court ruling from Judge Peter J. Kelly on November 30, 2006 denying, in its entirety, the Juniper Park Civic Association’s petition to compel the Parks Department and the City of New York to end the successful 20-year off-leash courtesy hours policy (9 PM until parks close, and when they re-open until 9 am, only in certain designated Park spaces).

In May 2006 the so-called* civic association interpreted existing municipal ordinances to prohibit the Parks Commissioner from designating off-leash courtesy hours in parks without designated off-leash areas. The NYC Health Board votes on Tuesday on new regulations that would clarify the Parks Commissioner's authority to designate off-leash courtesy hours in parks without designated off-leash areas.

*In my humble opinion, there is nothing "civic" about an association that wants to deny the enjoyment of public open space to 40% of their neighbors.

NYS Supreme Court Justice Peter J. Kelly's Nov. 30, 2006 Ruling is a good read. The Justice writes, for example,

the petitioner [Juniper Park Civic Association] has submitted photographs, news articles, and affidavits which, taken in a vacuum, would lead to the inescapable conclusion that any individual daring to venture in or near a City park would expect to be harassed by marauding hordes of vicious dogs whose owners sit idly by viewing the carnage much like spectators in the Roman Coliseum (5).

The court found the representations of off-leash recreation both by the JPCA and by NYCdog "philosopically interesting" but "totally irrelevant to the legal issue that must be decided" and determined that

the question that must be resolved is an apparent inconsistency between the Health Code which contains a balnket prohibition against dogs being permitted off-leash in public, and the Parks Department Rules that, although containing a similar prohibition, also include two significant exceptions. Specifically, section 1-04[i] of the Parks Department Rules states that dogs are permitted off-leash inside City parks when within established "dog runs" (See, 56 RCNY 1-05[s][3]) and "as permitted by the Commissioner.      In light of the introductory notes to the Health Code which, among other things, acknowledge the Parks Department's cnocurrent oversight of public health issues as they relate to the City parks, and recognizing the Commissioner's jurisdiction over the management of City parks and duty to promulgate rules in relation thereto, the court concluded that the Parks Department Rules, including its exceptions, are controlling under the circumstances (8).

Therefore,

the [petitioner's] claim that the Commissioner was not authorized to implement "courtesy hours" for off-leash dog activity in City parks fails by the language of the Parks Rules which expressly allow the Commissioner to permit such activity (9).

Also of interest:

Basic legal precedent establishes . . . that, even if the petitioners proffered evidence of non-enforcement of the rule at issue [i.e. the rule prohibiting off-leash activity during periods other than the "courtesy hours"] in particular instances, or even in general, the court is without authority to intervene. Contrary to the petitioner's assertion, the decision whether and in what instances police power should be exercised is peculiarly and unquestionably a discretionary function (See, Mullaney v Brown, 300AD2D 307; Haydock v Passidomo, 121 AD2d 540; Kerness v Berle, 85 AD2d 695; Perazzo v. Lindsay, 30 AD2d 179). To the extent that the petitioner seeks a general order directing the respondents [the City of New York, Adrian Benepe, Commissioner of the NYC Department of Parks and Recreation and the NYC Department of Parks and Recreation] to enforce the Parks Department Rules from 9:00 a.m. to 9:00 p.m., such relief is unavailable since "'[m]andamus [does] not lie to compel a general course of official conduct, as it is impossible for a court to oversee the performance of such duties'" (Walsh v La Guardia, 269 NY 437m 442, citing State ex rel. Hawes ve Brewer, 39 Wash 65; Community Action agains Lead Poisoning v. Lyons, 43 AD2d 201, 202-203) (10).

"In the face of the angst and vitrol exhibited herein," the court acknowledges that

common sense would dictate that something more than an "unwritten policy" governing the off-leash use of parkland by dogs, which is known by few and misunderstood by many, is required in this instance (11).

Posted by Canis Major at December 3, 2006 8:18 AM in the following categories: D.O.G.s (Dog Owner Groups) , Off-Leash Recreational Areas—i.e. "Dog Parks" , United States