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]

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