To justify the removal, the Commissioner of the New York City Parks Department, Adrian Benepe, and other officials filed letters with NPS, declaring that the structures had been "mistakenly" included on the federal map in 2001 and that the Tobacco Warehouse, a roofless structure enjoyed by the public for free outdoor programming between 2003 and 2008, was "not intended" to be used for public recreation.
In a strongly worded opinion, Judge Vitaliano rejected the arguments from NPS, the City, and the other defendants. "The house of cards erected by the defense cannot withstand the gentlest breeze," Judge Vitaliano wrote.
In a strongly worded opinion released on Friday, a Federal judge ruled in favor of the Plaintiffs in the Tobacco Warehouse suit which challenged a decision by the National Park Service (NPS) to allow the New York State Department of Parks, Recreation and Historic Preservation to remove the national historic landmark Warehouse from federal park protection. United States District Judge Eric N. Vitaliano ruled that that the ("NPS") violated federal law by removing the two historic landmarks.
In a stinging rebuke to the Bloomberg administration, the Court ordered NPS to protect these Civil-War era structures – the Tobacco Warehouse and the Empire Stores – from the current development plans of the Bloomberg Administration. According to the lawsuit, NPS bowed to pressure from the Bloomberg Administration by allowing the Tobacco Warehouse and Empire Stores to be removed from the map of a federally protected park.
To justify the removal, the Commissioner of the New York City Parks Department, Adrian Benepe, and other officials filed letters with NPS, declaring that the structures had been "mistakenly" included on the federal map in 2001 and that the Tobacco Warehouse, a roofless structure enjoyed by the public for free outdoor programming between 2003 and 2008, was "not intended" to be used for public recreation.
Plaintiffs charged that the NPS’s February 14th decision (upholding the “de-parking” of the warehouse whereby allowing it to be privately developed) was the result of strong pressure from the city and state to allow the conversion plan to go through. They claimed that earlier, National Parks “was on the verge of restoring the Tobacco Warehouse, located in the park between the Brooklyn and Manhattan bridges, to federal protection until city and state officials convinced them to reverse" that design.
A federal grant was administered by the NPS under the Federal Land and Water Conservation Fund (LWCF), a national grant program designed to help create and maintain outdoor recreational sites. In 2001 the New York State Office of Parks, Recreation and Historic Preservation (NYSOPRHP) requested LWCF funds for park improvements. As a condition for receiving funds the NPS required that NYSOP agree to never allow the parkland to be alienated. The facility was to be maintained in public outdoor recreation "in perpetuity." State Parks reneged on this agreement. - Geoffrey Croft
Brooklyn
Court Halts Bloomberg Plan to Cede Landmark Structures In Brooklyn Bridge Park for Private Development; Judge Calls Justifications for Federal Giveaway A "House Of Cards"
Federal Court Rebukes National Park Service for Legal Violation in Aid of New York City's Development Plans - PR Newswire - April 10, 2011
In a sweeping decision, United States District Judge Eric N. Vitaliano ruled that the National Park Service ("NPS") violated federal law by removing two historic landmarks from federally protected parkland. With this decision granting a preliminary injunction, the Court ordered NPS to protect these Civil-War era structures – the Tobacco Warehouse and the Empire Stores – from the current development plans of the Bloomberg Administration. The decision, released late Friday evening, follows a hearing held in Brooklyn Federal Court on March 21, 2011. The lawsuit was filed by the Brooklyn Heights Association , the Fulton Ferry Landing Association, the New York Landmarks Conservancy and the Preservation League of New York State (together, "Plaintiffs").
According to the lawsuit, NPS capitulated to pressure from the Bloomberg Administration by allowing the Tobacco Warehouse and Empire Stores to be removed from the map of a federally protected park. The City had planned to turn over both structures to private developers. To justify the removal, the Commissioner of the New York City Parks Department, Adrian Benepe, and other officials filed letters with NPS, declaring that the structures had been "mistakenly" included on the federal map in 2001 and that the Tobacco Warehouse, a roofless structure enjoyed by the public for free outdoor programming between 2003 and 2008, was "not intended" to be used for public recreation.
In their lawsuit, Plaintiffs demonstrated that these statements were false. Even NPS's own administrative record proved, as Plaintiffs long believed, that high-level City officials were secretly lobbying NPS and the U.S. Department of the Interior to render a decision in violation of federal law.
In a strongly worded opinion, Judge Vitaliano rejected the arguments from NPS, the City, and the other defendants. "The house of cards erected by the defense cannot withstand the gentlest breeze," Judge Vitaliano wrote. Addressing the claim that the structures were included on the federal map "by mistake," the Judge labeled it as "revisionist," and flatly rejected it, saying, "there is . . . not a shred of evidence [to suggest a mistake]." The Court criticized NPS's decision to rely on information from the City and State agencies "without confirming or even investigating them or requesting any additional information or public comment." The Court also rejected the defendants' assertion that the Tobacco Warehouse was "unsuitable" for outdoor public recreation. The Court found the assertion was based on an "invisible record," and accused NPS of using "cherry-picked" information to support it.
On an issue of first impression, the Court also rejected NPS's argument that it had power at all to remove parkland in these circumstances: "the record," according to the Court, "unmasks the NPS decisions as contrary to its own regulations." The Court concluded as follows: "The [applicable] statute is not silent about revisions; it flatly contradicts the NPS claim of power to correct 'oversights' after a [federal] grant closes." Although NPS claimed it had the "inherent authority" to correct mistakes on federal park maps, the Court called this "a last gasp argument" that "holds no water." The Court also declared that NPS's central determination of a "mistake" was "flawed both substantively and procedurally."
Elizabeth Merritt, Deputy General Counsel of the National Trust for Historic Preservation sent a clear message that NPS cannot evade a mandatory public-review process by secretly altering documents." Peg Breen, President of the New York Landmarks Conservancy, said: "This ruling reaches far beyond Brooklyn. If the National Park Service could choose when to enforce the law, historic buildings and parks across the country would suffer." Daniel Mackay, Director of Public Policy for the Preservation League of New York State, said: "We hope this decision re-establishes the highest standards of review and protection at the National Park Service for public parklands in New York State and across the nation. This injunction is a critical first step in protecting this and other federally funded parkland from rash actions and incomplete public process."
Although preservation groups described the lasting and far-reaching implications of Friday's decision, two neighborhood civic associations that have fought to save the Tobacco Warehouse from demolition or development for more than 40 years – the Brooklyn Heights Association and the Fulton Ferry Landing Association – also heralded the decision. Jane McGroarty, President of the Brooklyn Heights Association, said: "We are gratified by Judge Vitaliano's clear decision. The National Park Service and the State Parks Department acted illegally by removing the Tobacco Warehouse from the public domain. It belongs to the park, where it can be enjoyed by all." Joan Zimmerman, President of the Fulton Ferry Landing Association agreed, saying: "The decision was a resounding rejection of arguments made to justify backroom deals between the City and NPS, and a strong affirmation of the principle that parks are to serve the public, not private interests."
Gibson, Dunn & Crutcher represented the plaintiffs. "The Court's decision recognized clear illegality. We hope today's landmark ruling deters the National Park Service from future 'giveaways' of our national treasures," said Jim Walden, who litigated the case with Gibson Dunn attorneys James Hallowell, Richard Falek, Adam Cohen, Matthew Menendez, Kimberly Yuhas, Adam Jantzi, Lloyd Kim, Vikram Kumar, and Yara Mansour.
SOURCE Gibson, Dunn & Crutcher
Landmark structures at Brooklyn park get reprieve
By The Associated Press - April 10, 2011
A federal judge has temporarily blocked a plan by New York City to turn over two Civil War-era structures in Brooklyn Bridge Park to private developers.
In granting a preliminary injunction, Judge Eric Vitaliano ruled that the National Park Service violated federal law by removing the Tobacco House and the Empire Stores from federally protected parkland. The decision was announced in federal court in Brooklyn on Friday.
The ruling responded to a lawsuit filed by the New York Landmarks Conservancy, the National Trust for Historic Preservation, the Preservation League of New York State and other groups that claimed the park service capitulated to pressure from Mayor Michael Bloomberg's administration.
"This ruling reaches far beyond Brooklyn," Peg Breen, President of the New York Landmarks Conservancy, said in a statement Sunday. "If the National Park Service could choose when to enforce the law, historic buildings and parks across the country would suffer," she said.
The National Park Service did not immediately respond to an emailed request for comment.
"We are disappointed with the Court's ruling and look forward to presenting our full case to the Court," city lawyer Haley Stein said in a statement. "Brooklyn Bridge Park remains committed to moving the Tobacco Warehouse project forward and incorporating plans for St. Ann's Warehouse and Empire Stores as vibrant parts of the park," Stein added.
The Brooklyn Bridge Park Conservancy's website describes the two 19th-century warehouses as "vivid reminders of the shipping activity that once defined the downtown Brooklyn waterfront."
Read More:
Judge Blocks City’s Proposal for 2 Buildings in Brooklyn
New York Times - April 10, 2011 - By Elizabeth A. Harris
Judge slaps B'klyn Bridge Park plan
New York Post - April 11, 2011 - By Rich Calder
New York Daily News - April 11, 2011 - By Erin Durkin
Tobacco Warehouse Complaint Amended - Further Influence From City/State Officials Charged
A Walk In The Park - March 3, 2011
BHA, Others Allege State, City Pressure on Federal Agency
The Brooklyn Eagle - March 2, 2011 - by Raanan Geberer
A Walk In The Park - February 15, 2011
