Horsing Around With Conservation: Revisited

By Kevin Rautenstrauch, Albany Government Law Review

This January Andrew Stengel, Editor-in-Chief of Albany Government Law Review, posted on the Fireplace blog: Horsing Around With Conservation Part Two: A Roofless Historical Structure in a Brooklyn Park Hosts Public Outdoor Recreation, But State Parks Claims Otherwise. Stengel’s analysis of legal arguments of records obtained by the state’s Freedom of Information Law and U.S. Freedom of Information Act, which one paper called “seminal,” concluded that the National Parks Service violated the law by removing the Tobacco Warehouse, a historic structure from a protected map.

This week a federal judge ruled that the federal government indeed violated the law thus protecting the Tobacco Warehouse. The lawsuit was based on Stengel’s theory and documents that he provided to the plaintiffs, several Brooklyn community groups.

Horsing Around With Conservation Part Two: A Roofless Historical Structure in a Brooklyn Park Hosts Public Outdoor Recreation, But State Parks Claims Otherwise

Andrew Stengel, Albany Government Law Review Member[1]

Introduction

In a recent post, Horsing Around with Conservation, I explored whether a carousel planned for a park in Brooklyn, New York, violated the terms of a federal Land and Water Conservation Fund (“LWCF”) grant and New York State law.[2] I concluded that the carousel likely violated both.  A second issue, which concerns Empire Fulton Ferry Park (“EFFP”), the same nine-acre park covered in the same LWCF grant, involves an important historical structure called the Tobacco Warehouse.

There are actually two historic structures within EFFP, the Empire Stores, a four-story brick building, built in 1869, and the Tobacco Warehouse, a roofless, four-walled brick structure from the same era.[3] The Empire Stores, which is roofed, is part of the Endangered Buildings Initiative of the New York Landmarks Conservancy.[4] The roofless Tobacco Warehouse, however, is used as “an outdoor venue for exhibits and entertainment”[5] that is open to the public when not rented for private use.[6]

In 2001, National Parks Service (“NPS”) approved a LWCF grant in the amount of $275,525 for the Cove Area Improvement in EFFP.[7] Unexplored in my previous post is the original boundary map for the LWCF grant, which incorporated all of EFFP including the Empire Stores and Tobacco Warehouse.[8] The map detailed the area covered by the grant, which, like all LWCF projects, included an assurance in perpetuity that the land and real property contained within will not be converted.[9] However, on November 5, 2008, the New York State Office of Parks, Recreation, and Historic Preservation (“OPRHP”) wrote to NPS to request that the park’s boundary map be amended.[10] The OPRHP letter stated: “These former warehouse buildings [the Empire Stores and Tobacco Warehouse] are not suitable for nor used by the public for outdoor recreational opportunities in the park.[11]

Continue reading “Horsing Around With Conservation Part Two: A Roofless Historical Structure in a Brooklyn Park Hosts Public Outdoor Recreation, But State Parks Claims Otherwise”

Horsing Around with Conservation: How a Carousel Planned for a Brooklyn Park May Violate the Land and Conservation Fund Act and State Law

Andrew Stengel[1], Albany Government Law Review Member

Introduction

The carousel is a universally beloved amusement ride.  The very thought of a carousel evokes images of smiling children atop colorful faux galloping horses accompanied by the sounds of pleasing circus music.  However, the federal government may not may not be similarly amused with a carousel planned for a park in northwest Brooklyn, New York.

Enter David Walentas, a developer with enormous real estate holdings in Dumbo (Down Under the Manhattan Bridge Overpass),[2] an area in northwest Brooklyn more or less bounded by the East River to the north, Brooklyn-Queens Expressway to the south, Brooklyn Bridge to the east and Manhattan Bridge to the west.[3] Jane Walentas, Mr. Walentas’s wife, recently donated a restored carousel to be placed in Brooklyn Bridge Park, a green space that is under development along the coastline of the area.[4]

The carousel is destined for an area that was once known as Empire Fulton Ferry Park, which was recently conveyed from the New York State Office of Parks, Recreations and Historic Preservation (OPRHP), to the Brooklyn Bridge Park Development Corporation (BBPDC), a state-city body.[5] The nine-acre park, formerly maintained by the OPRHP, juts out to the east of the Brooklyn Bridge and boasts scenic views of New York City Harbor and the Manhattan skyline.[6] The park also features a cove, one of the few places in New York that provides access to the waterfront and is a vibrant location for marine life.[7]

Unknown to most is a “carnival” of federal and state laws that the carousel impacts.  Empire Fulton Ferry Park was the beneficiary of a ten-year-old federal Land and Water Conservation Fund (LWCF) grant that bars conversion of the park area in perpetuity without prior approval from the Department of the Interior.[8] New York’s public trust doctrine similarly bars conversion of the land without prior legislative approval.[9]

Continue reading “Horsing Around with Conservation: How a Carousel Planned for a Brooklyn Park May Violate the Land and Conservation Fund Act and State Law”