Tobacco Warehouse at Empire Fulton Ferry State Park. Image: CityLand.
Court ruled that the National Park Service unlawfully removed warehouse and adjacent building from park boundaries. In 2001, the National Park Service awarded to the New York State Office of Parks, Recreation, and Historic Preservation a federal Land and Water Conservation Fund grant to help fund a cove restoration project in Empire Fulton Ferry Park in DUMBO, Brooklyn. The Park Service’s grant was contingent on the State Office of Parks agreeing that the restoration project area would be used for public outdoor recreation.
The approved boundary map of the park area included the Tobacco Warehouse building and the adjacent Empire Stores warehouse bordering the park along Water Street. The dilapidated Tobacco Warehouse has been listed on the National Register of Historic Places since 1974. The State Office of Parks stabilized the Tobacco Warehouse, removed its collapsing roof, and opened the building to the public. Empire Stores was used to house the park’s administrative offices and a public restroom.
In 2008, the State Office of Parks requested that the National Park Service accept a revised park boundary map which excluded the Tobacco Warehouse and Empire Stores. The State Office of Parks said that the buildings were not suitable for public outdoor recreational opportunities. The National Park Service agreed and excluded the warehouses from the park’s boundaries. The State Office of Parks later conveyed the parkland and the warehouses to the Brooklyn Bridge Park Corporation, which planned to incorporate the land into the proposed Brooklyn Bridge Park.
In 2010, the Brooklyn Bridge Park Corporation selected St. Ann’s Warehouse, which operates a performance space across from Empire Stores, to rehabilitate and convert the Tobacco Warehouse into a performance space with an outdoor garden. As part of the project’s environmental review, St. Ann’s planned to drill multiple holes in the warehouse’s concrete floors to perform soil tests. The Brooklyn Heights Association opposed the project, citing concerns about how the drilling would impact the historic structure, and requested that the National Park Service reverse its decision to exclude the Tobacco Warehouse and Empire Stores from the park’s boundaries. In 2011 the National Park Service issued a final determination upholding the exclusion.
A coalition of community groups, including the Brooklyn Heights Association, the Fulton Landing Association, and the New York Landmarks Conservancy, filed suit in federal court seeking a preliminary injunction to set aside the National Park Service’s decision and to prevent St. Ann’s from proceeding with its Tobacco Warehouse project. District Court Judge Eric N. Vitaliano in April 2011 granted a preliminary injunction, ruling that the coalition demonstrated a clear showing of irreparable harm and would likely succeed in establishing that the National Park Service violated federal law. The coalition then moved for summary judgment.
Judge Vitaliano granted the motion, finding that the National Park Service violated federal laws when excluding the warehouses from the official park map. The Court rejected the claim that the warehouses had been mistakenly included in the original park map and pointed out that the federal Land and Water Conservation Fund Act established a procedure whereby the National Park Service could replace the property with substitute land of equal or greater value.
Brooklyn Heights Ass’n v National Park Service, 2011 WL 2728273 (E.D.N.Y. July 12, 2011) (Vitaliano J.) (Attorneys: David Michael Eskew, Simon D. Wynn for National Park Service and ESDC; James Lincoln Hallowell, Jim Walden, Kimberly Ann Yuhas, for coalition).