Posted by: Patricia Salkin | April 25, 2011

Fed. Dist. Court Prevents Performing Arts Center From Relocating to Dilapidated Historic Warehouse

The tobacco warehouse, which has been on the National Register since 1974, is located in Empire Fulton Ferry State Park. In 2001, the New York State Office of Parks, Recreation, and Historic Preservation (OPRHP) received funding from the National Park Service (NPS) for a cove restoration project in the park, and included the tobacco warehouse in the boundary map. The grant was authorized under Section 6(f)(3) of the Land and Water Conservation Fund Act, 16 U.S.C. § 4601-8(f)(3), which requires that “once an area has been funded with L&WCF assistance, it [must be] continually maintained in public recreation use unless NPS approves substitution property of reasonably equivalent usefulness and location and of at least equal fair market value.” After receiving the grant, OPRHP stabilized the walls of the tobacco warehouse and removed the remainder of its roof, which allowed it to be opened to some public access. 

In 2008, after the project had been completed and administratively closed, OPRHP asked NPS to amend the project boundary map to exclude the tobacco warehouse, explaining that “these former warehouse buildings are not suitable for nor used by the public for outdoor recreational opportunities in the park….” Because the grant program was not intended to provide assistance for indoor recreational use, NPS agreed that it should not have included the buildings within the project boundaries and approved the revised project map. 

The amended map was later attached to a conveyance of the property to the Brooklyn Bridge Park Corporation, which intended to include it in a larger park covering 85 acres of Brooklyn waterfront. In 2010, BBPC approved St. Ann’s Warehouse’s application to rehabilitate the tobacco warehouse as a performance space and outdoor garden. The project would preserve the walls of the historic structure, but add a roof for the theater. 

At this point, the Brooklyn Heights Association raised concerns that construction would damage the historic structure, and it requested that NPS reverse its decision to exclude the tobacco warehouse from the LWCFA project map. NPS, treating this request as a “informal appeal,” issued a final decision in February, 2011, upholding the map amendment. Although NPS recognized that it did not follow its regulations for substituting reasonably equivalent property for the parcels removed from the project boundary, it considered the change to be a “technical correction” that was exempted from these procedures. BHA then filed for a preliminary injunction to prevent the theater project from going forward. 

The District Court for the Eastern District of New York determined that BHA and the other plaintiffs made a clear showing of irreparable harm justifying an injunction. As the court explained, were relief not to be granted, soil testing would soon begin with drilling and boring into the warehouse’s concrete floor. Although the bore holes could be filled, the plaintiffs showed that “the very act of bringing heavy drilling and boring equipment through one of the relatively small entrances to the building, then operating that drilling equipment inside it, creates a real risk of damage to a national historic landmark.” Moreover, the court observed that “What is clear and compelling…, is that all agree that the Tobacco Warehouse is worthy of preservation and care, and thus the inadequacy of monetary compensation for any harm is self-evident.” 

Looking to the balance of hardships, the court pointed out that St. Ann’s could amend its project agreements with BBPC to extend its timeline and required milestones. The public interest in preserving the physical integrity of the structure, on the other hand, weighed in favor of maintaining the status quo. 

The court also found that the plaintiffs were likely to succeed on the merits. It rejected NPS’s claim that the map amendment was a technical error, noting that “The § 6(f)(3) boundary map submitted by OPHRP and accepted by NPS contains not the slightest hint of mistake. There is no suggestion of a cartographical error or any kind of inadvertent ministerial or clerical oversight.” Indeed, the project description specifically mentioned the tobacco warehouse, described its historic importance, and identified it in the site photos map. Additionally, the warehouse was also discussed in inspection reports submitted to NPS and in the closeout documentation, and the record indicated that OPHRP had been advised of the consequences of including property within the project boundary. The record of the map amendment approval, in contrast, was limited to two short letters. NPS did not confirm or investigate OPHRP’s contention that including the warehouse was a mistake, or solicit any additional information or public comment. 

The court also rejected the argument “that because the Tobacco Warehouse and Empire Stores were not suitable or intended for ‘public outdoor recreation uses’ at the time of the grant, they should not have been included in the 6(f)(3) boundary, and thus removing them from within that boundary is a correction rather than a conversion.” Instead, the court relied on Second Circuit precedent for a broad interpretation of the LWCFA’s intent, and concluded that the warehouse could be used for “outdoor, public, or recreational use…by adding to the scenic character of the park and serving as a buffer between the waterfront parkland and the commercially developed DUMBO neighborhood (to say nothing of the actual public outdoor recreation use inside the Tobacco Warehouse and the public restroom and park administration offices located at Empire Stores).” Accordingly, there was little merit to the claim that the tobacco warehouse was inappropriate for assistance under the LWCFA. 

More importantly, neither the LWCFA nor NPS’s regulations included any provision for “’technical correction’ procedure self-originated and employed by NPS here, even given…a deferential treatment of NPS’s interpretations of these provisions.” To the contrary, “Any change to the 6(f)(3) boundary after the close of an LWCF grant — regardless whether that change is referred to as a ‘revision’ or ‘correction’ — triggers the conversion process and requires the full consideration of alternatives and, if needed, the substitution of a replacement property.” NPS’s “last gasp argument”—that it had an inherent residual power to reconsider its action—was also rejected by the court. 

Brooklyn Heights Ass’n v. Nat’l Park Serv., 2011 U.S. Dist. LEXIS 38658 (E.D.N.Y. 4/8/2011) 

Special thanks to Amy Lavine, Esq. of the Government Law Center for this post.


  1. Thanks for providing some context for this particular situation in NY. How we use and reuse dilapidated buildings is of particular interest to me. Being from Southeast Michigan and so close to Detroit I find it particularly interesting how artists and entrepreneurs are trying to reuse some of the abandoned buildings in the city to recreate and reinvigorate the city.

    Do you by chance have a link for the case?



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