Attachments to the

Amended Complaint, dated

March 1, 2011
ATTACHMENT B
 David A. Paterson
Governor

New York State Office of Parks, Carol Ash

Commissioner
Recreation and Historic Preservation
The Governor Nelson A. Rockefeller Empire State Plaza 0 Agency Building 1, Albany, New York 12238
www.nysparks.com

November 5, 2008·

Ms. Jean Sokolowski

Outdoor Recreation Planner
National Park Service
USCust~m House, 3Td Floor
200 Chestnut Street
Philadelphia, P A 19106

Re: LWCF 36~01225/Empire Fulton Ferry-Cove Area

Dear Ms. SOkOIOWSk!;_Qo)/~

J'
Our agencies have on prior occasions discussed the history and increasing sophistication of mapping
..LWCF-assisted parkland since the inception of the program. Historically, when funding has been
yirovided in a park,.the entire park is mapped pursuant to section 6(fj. 11J.is practice has created
difficulties, especially when portions of the land include buildings thai. do not have an outdoor
~ecreational component. For this reason, we wish to revise the 6(f) bom~dary map for Empire Fulton
1\';rry State Park.

This park, located in our New York City Region, was the recipient of grant 36-01225. From our mutual
re.cords, it does appear that although a 6(f) map was filed for this grant, its boundaries included four
existing former warehouse buildings on the southern side of the park. At the present time, we can state
that these former warehouse buildings are not suitable for nor used by the public for outdoor recreational
opportunities in the park. We therefore believe that revising the 6(f) map will not adversely impact'the
{idlity and viability of the remaining parkland. . .
.-;."
\{i'e are submitting :3. revised 6(f) boundalY map for Empire Fulton Furry State Park and request your
(:(mcurrence with this
.~~; . ~.
revision .

A,~ current situations cause us to review 6(f) maps and opportunities ;E;se to revise correct or update
these importantdol.;iiments. we look forward to working with your onk:,~ so that the ongoing protections
r..1.'forded through the LWCF program remain in place, as appropriate~!.~or all local and State parkland in
:t.:~~~w Y o r k . " . . ....:'.;.: .

_. ., ~ .- '.'

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An Equal Opportunity/Affirmative Action Agency ..

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o prinled on recycled paper
 Ms. Jean Sokolowski
November 5, 2008
Page 2

Your attention is appreciated. If you have any questions, please do not hesitate to call Vic DiSanto at
.(SI8) 474-0428.

Bincerely, _

4I~rr-£~
Melinda Sc tt
.. -
.. .
Chief ofGra .

Enclosure

. cc: Jeff Meyers .

Vic DiSanto
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ATTACHMENT C
 United States Department of the Interior

NATIONAL PARK SERVICE

Northeast Region
U.S. Custom House
200 Chestnut Street
IN REPLY REFER TO: Philadelphia, PA 19106-2878
L32 (4507)
36-01225
Empire Fulton Ferry State Park

Ms. Melinda Scott, Chief of Grants

LWCF Alternate State Liaison Officer
New York State Office of Parks, Recreation
And Historic Preservation
Empire State Plaza, Agency Building 1
Albany, New York 12238-0001

Dear Ms. Scott:

We have reviewed the recent information you forwarded requesting that the 6(f) boundary map
for the above-referenced Administratively and Financially dosed Land and Water Conservation
Fund (LWCF) project be revised to exclude warehouse buildings on the southemside of the
park.

According to the project file, it appears that when the project was approved, and later Closed,
both NPS and OPRHP inadvertently overlooked the existence of four warehouse buildings
located within the project boundary. The fact that 6(f) maps are "final", with no changes
occurring unless there is a conversion or significant error, has provided a sound basis against
legal challenges. H the LWCF Program were to allow changes in 6(f) maps after closeout
. whenever a municipality wanted to do so, whether· for positive or negative reasons, it would
indicate that indeed 6(f) is a negotiable process and subject to change at any time. However,
since the LWCF Program does not provide assistance for existing or proposed indoor
recreational facilities and these former warehouses are not suitable for recreational use by the
public, the pre-existing warehouses should have been excluded. Therefore, although LWcF
regulations do not normally allow for the re-alignment of the 6(f) boundary after a project has
been Administratively and Financially Closed, we recognize the oversight in· this case and
concur with your request to revise the boundary. The new map you included in your
correspondence will be recognized as the legal 6(f) boundary map for this project.
We appreciate your diligence in monitoring the areas protected by LWCF assistance. We have
enjoyed a strong partnership with New York State in the protection of outdoor recreation
resources and look forward to future opportunities to continue this relationship. If you have
any questions whatsoever, please do not hesitate to contact me or Jean Sokolowski, LWCF
Project Manager for New York State, at (215) 597-1158 or Jean_Sokolowski®nps.gov.

Sincerely,

Recreation, Conservation and Grants Assistance

ATTACHMENT D
July 15,2010

Mr. Jonathan Jarvis

Director, National Park Service
U.S. Department ofthe Interior
1849 C Street
Washington, D.C. 20240

Dear Mr. Jarvis,

We have recently become aware of a decision by the Manager of the

northeast Region ofthe National Park Service ("NPS") in late 2008 that·
appears not to conform to Section 6 (f) (3) of the Land and Water
Conservation Fund Act of 1965 and its implementing regulations.

In 2008, the Tobacco Inspection Warehouse ("the TW") in the

Empire Fulton Ferry State Park ("the EFFSP") was an open, roofless ruin
that was being used by the public for events and gatherings and for
recreation as an integral part of the EFFSP. Based on an erroneous
representation by the New York State Office of Parks, Recreation and
Historic Preservation ("State Parks") that the TW. as well as the adjacent
Empire Stores is ". .. not suitable for nor used by the' public for outdoor
recreational opportunities in the park", NPS approved an amendment to
the original project map ("the 6(t) map") to exclude the TW and Empire
Stores from protection as parkland. This was done without requiring
State Parks to undergo the required conversion process. The facts
detailed in this letter plainly make the case that th~ TW is entitled to
continuing protection as parkland under the L WCF Act. Therefore, the
Brooklyn lIeights Association strongly urges NPS to act to protect the
TWas parkland in perpetuity.

Here are the facts:

On December 13, 2001, NPS approved a $274,525 Land and Water

Conservation grant to State Parks to help fund certain improvements to
the EFFSP. See Exhibit 1 (Project No, 36-01225). Documentation
included NPS's standard General Provisions under which New York
 State agreed that the property included in the 6(t) map" ... shall be maintained in
public outdoor recreation in perpetuity" unless conveited to other than public outdoor
recreation with the approval of the Secretary of the Interior. The 6(t) map, dated
October 17, 2001, describes and bounds the entire EFFSP including the TW and
Empire Stores. Project 36-01225 was completed and all LWCF funds disbursed by the
end of2002. .

At the time that the LWCF grant was signed at the end of2001, the TW's roof had
largely collapsed, and its 25 foot high walls were unstable. By the end of 2002,
responding to pressure from community organizations, State Parks (perhaps using
LWCF funds) had removed the remaining roof and stabilized the walls of the TW.
Photos of the TWas it was after State Parks' repairs and as it remains today are
attached as Exhibit 2. The photos show a historic ruin open to the sky and to
unimpeded entry and use by those who enter the EFFSP.

In December, 2006, the Brooklyn Bridge Park Development Corporation

("BBPDC"), a public entity charged with building the Brooklyn Bridge Park, adopted
a General Project Plan. In that plan, the TW was categorized as a part of the Brooklyn
Bridge Park rather than (as with certain other parcels including the Empire Stores) as a
commercial development site. The 2006 Plan states: "The restored exterior shell of
the Tobacco Warehouse may be used to house a walled garden, cafe or space for arts
groups." A statement by Francis Morrone, a noted expert on historic structures and
neighborhoods, is attached as Exhibit 3. It captures well the value of the TW as an
evocative ruin within the park.

Between 2004 and the summer of2008, 37 events arranged by the Brooklyn
Bridge Park Conservancy were held in the TW. All but one of these events were open
to the public, and all but a handful were free. Exhibit 4 lists these events. After State
Parks assumed responsibility for programming in the TW in the fall of2008, a number
of additional public events were held through the end of2009, when the EFFSP was
. closed for renovations.
\. \
'.
On November 5, 2008, about six years after the completion of the LWCF
improvements project, State Parks wrote to the Philadelphia office ofNPS requesting
that the 6(t) map agreed to in 2001 be revised to exclude" ... four existing former
warehouse buildings on the southern side of the (EFFSP)." The letter continues: "At
the present time, we can state that these former warehouse buildings are not suitable
for nor used by the public·for outdoor recreational opportunities in the park". A
revised 6(f) map is appended to the letter. Exhibit 5 (letter and revised map). The
November 5, 2008 letter fails to distinguish in any way between the TW and Empire
Stores, nor does it recite any of the facts set forth above as to the physical condition of
the TW and its extensive use for park events and purposes.
 On December 16, 2008, the Manager of Recreation" Conservation and Grants
Assistance ofNPS's Northeast Region office, responded to State Parks' November 5th
letter. After acknowledging that under the LWCF Act· 6( t) maps are fmal after a
project has been closed out" ... with no changes occurring unless there is a conversion
or significant error", the Manager nonetheless, relying on State Parks' description of
the "former warehouse buildings", reluctantly approved the revision ofthe 6(t) map
to exclude the TW and Empire Stores. Exhibit 6.

In 2010, New York State conveyed the EFFSP to the BBPDC in two parcels. The
,first, called Parcel A, conveys all of the EFFSP except for the TW and Empire Stores,
and the second, called Parcel B, conveys the TW and Empire Stores sites. (the "Letters
Patent Deed"). Exhibit 7. The Letters Patent Deed extends parkland protections under
State and Federal law only to Parcel A.

On June 9, 2010, the BBPDC adopted a Modification to the General Project Plan
that declines to define the TW as parkland. While the Modification does not expressly
define the TW as a development site and includes the above-quoted provision from the
2006 General Project Plan, the Modification leaves the TW vulnerable to privatization,
if not commercial development. Exhibit 8 (pages 1-5).

Conclusion

The revision of the 6(t) map at the end of2008 is treated as a minor adjustment to
fix an oversight in 2001 that inadvertently included closed former warehouses with no
public access. While we do not quarrel with this description as applied to Empire
Stores, we strongly object to the failure of State Parks to distinguish the TW from
Empire Stores and point out all of the facts set forth in this letter that describe the TW
as an open ruin that was (and is today) being actively used for public events and was
(and is today) open to any User of the EFFSP for recreation. These omitted facts
plainly justified the inclusion of the TW in the 6( t) map in 200 land equally plainly
require the reinstatement of the TW in the 6(f) map so that tHe 'E,W may continue to be
protected as parkland under the LWCF Act.

As pointed out in the December 16, 2008 letter from NPS to State Parks, there are
good reasons for not disturbing established boundaries after the fact without going
through the stringent requirements for a conversion of property to a non-park use (see
36 CFR, Section 59.3 and Chapter 8 of the LWCF State Assistance Manual (October
1, 2008). The only "significant error" in this situ'ation is State Parks' failure to include
facts that clearly distinguish the TW from Empire Stores. These facts_make the case
beyond doubt that the TW qualifies for continuing protection under the LWCF Act.
 We therefore request that NPS investigate the faqtswe have outlined. If, as we
expect, NPS concludes that the TW in fact qualifies for continuing protection, we ask
that NPSrevise the 6(f) map to re-include the TW within the 2001 boundary so as to
preserve it as parkland in perpetuity.

Respectfully submitted.

Jane Carroll McGroarty

President

cc.
Hon. Nydia Velazquez, U.S. Representative, 12th Congressional District
Hon. Kenneth Salazar, Secretary of the Interior
Hon.Carol Ash, Commissioner of the Office of State Parks, Recreation
and Historic Preservation

-\ \
ATTACHMENT E
L32(2225)

Mr. Andy Beers

Acting Commissioner
New York Office of Parks
Recreation and Historic Preservation
Empire State Plaza, Agency Building 1
Albany, New York 12238

Dear Mr. Beers:

As you know, the National Park Service (NPS) has been asked by Ms. Jane Carroll McGroarty, President
of the Brooklyn Heights Association, to revisit its December 12, 2008, decision to approve a technical
correction to the Section 6(f) boundary for Empire-Fulton Ferry State Park (EFFSP), a Land and Water
Conservation Fund (LWCF) assisted site. The 2008 decision removed the Tobacco Warehouse and the
Empire Stores from the protection of the Section 6(f) of the LWCF Act as amended.

This we have done. We have reviewed the original project grant application, the November 25, 2008,
request from your office for a boundary correction, former Commissioner Ash’s August 25, 2010, letter to
NPS Director Jon Jarvis, information provided by Ms. McGroarty and the Office of Congresswoman
Nydia Velázquez, further discussions with you and your staff, and most recently the information you
submitted electronically on January 6, 2011. We have concluded that allowable outdoor recreation
activities have taken place at the site since prior to project completion in 2003, and that the inclusion of
the Tobacco Warehouse site in the original Section 6(f) boundary was appropriate. Therefore, the 2008
correction of the boundary in 2008 to exclude the Tobacco Warehouse was not justified. Our decision
does not affect the Empire Stores, which continue to be excluded from the boundary.

NPS does not have the authority to negotiate a Section 6(f) boundary change at the pleasure or for the
convenience of the State after the project has been completed and final payment made. In its 2008
request, your office asserted that the existing warehouses were “…not suitable for nor later used by the
public for outdoor recreational opportunities in the park” at the time of the application for the LWCF
grant. Based on that assertion, the NPS Northeast Regional office in Philadelphia agreed to a technical
correction to exclude the Tobacco Warehouse and accepted a revised boundary map from the State dated
October 10, 2008.

Commissioner Ash’s letter, however, confirms that while the project grant was still active, and prior to
project completion in 2003, 1) the State, in 2002, removed the failing roof and stabilized the walls of the
Tobacco Warehouse structure (consistent with the recommendation of previous planning documents),
and 2) since 2002, the Tobacco Warehouse has been open to the public and has accommodated a variety
of activities including outdoor performance and cultural uses such as theater, puppet and dance
performances, concerts, art and sculpture displays, weddings and corporate events. These types of
recreation uses and programming are common in parks throughout the country, including parks that are
protected under Section 6(f).
The Commissioner referred to the LWCF Financial Assistance Manual to support the State’s position that
such uses of the warehouse were not consistent with LWCF guidelines. Unfortunately, the
Commissioner’s letter interprets program guidelines to exclude certain activities from LWCF sites that
are in fact allowable uses. The referenced sections of the manual (chapters 3-10 through 3-13) describe
types of recreation development that might be eligible for LWCF financial assistance. It is true that
LWCF assistance is not available for professional or semiprofessional art (e.g., professional outdoor
theaters) or athletic facilities (e.g., pro or semi-pro baseball fields). However, performance and cultural
activities of the sorts described in the Commissioner's letter, such as theater, ballet, and dance
performances, concerts, art and sculpture displays, as well as weddings and corporate events, are not
precluded by the LWCF manual and are allowable in Section 6(f) areas – in fact, LWCF funding can and
has been used for amphitheaters, bandstands, pavilions and other modest spectator seating areas to
accommodate performance and cultural uses in a public outdoor recreation environment.

As a result, it will be necessary that LWCF Project No. 36-01225 be corrected again, 1) to include a
revised Section 6(f) boundary map to include the Tobacco Warehouse site, and 2) to reflect the change in
the project sponsor from the State of New York to New York City. Please submit these items to the
Northeast Regional office in Philadelphia as soon as possible to address these changes.

Once the boundary is revised, NPS will then be able to consider a request for an alternative use of the
Tobacco Warehouse. Note however that this letter makes no representation as to whether an alternative
use of the Tobacco Warehouse can be accommodated within the program guidelines, either as an eligible
public facility or through the conversion of use process. In the event such a request is made by the State at
some point in the future, the NPS will consider that application at that time.

Please feel free to contact me or Jack Howard, Program Manager, State and Local Assistance Programs in
the Northeast Regional office at 215-597-1565, if clarification of the above is needed.

Sincerely,

Wayne Strum
Acting Chief, Division of State
and Local Assistance Programs

DTS#NPS0006582
ATTACHMENT F
 United States Department of the Interior
NATIONAL PARK. SERVICE

1849 C Street, N.W.

Washington, D.C. 20240

L32(2225)
FEB 1 4 2011

Mr. Andy Beers

Acting Commissioner
New York Office of Parks Recreation
and Historic Preservation
Empire State Plaza, Agency Building 1
Albany, New York 12238

Ms. Jane Carroll McGroarty

President

Brooklyn Heights Association

55 Pierrepont Street, Box 17D

Brooklyn, New York 1120 I

Dear Mr. Beers and Ms. McGroarty:

As you are each aware, the National Park Service (NPS) was asked by Ms. McGroarty, by letter dated

July 15,2010, to revisit its December 12,2008, decision to approve a technical correction to the Section

6(f) boundary for Empire-Fulton Ferry State Park (EFFSP), a Land and Water Conservation Fund (LWCF)

assisted site. The 2008 decision removed the Tobacco Warehouse (TW) from the protection of Section 6(f)

of the LWCF Act of 1965, as amended. NPS has treated the Association's request as an informal appeal of

the December 2008 decision.

In response, NPS has reviewed the original LWCF project grant application (L WCF Project Number 36­
01225), the November 25, 2008, request from the New York Office of Parks Recreation and Historic

Preservation (OPRHP) as well as materials subsequently received from Congresswoman Nydia Velazquez

and each of the above addressees or their representatives.

In addition, the city of New York, which now holds title to EFFSP, subsequently requested and received an

opportunity to review the circumstances surrounding the establishment of the original Section 6(f) boundary

for EFFSP and submit additional material through OPRHP to further justify the State's 2008 request for a

boundary correction. A follow-up conference call with the city and State officials was also held on

Monday, February 7 to ensure that NPS had a complete record of matters relating to this project grant. All

ofthese materials have been fully reviewed and considered in reaching the decision below.

Background:

The 6(f) boundary refers to that section of the LWCF Act (LWCF A) of 1965, as amended, defining the

area acquired or developed with L WCF grant assistance which is protected for public outdoor recreation

use in perpetuity unless relief is provided as prescribed in the Act and in the published regulations at Title

36, Part 59 of the Code ofFederal Regulations.

The 6(f) boundary is established at the time of LWCF grant project completion. Neither the LWCF A nor
the implementing regulations explicitly provide for amending the established 6(f) boundary without
undertaking the process for a conversion pursuant to 36 CFR 59.3. My office understands that over time,
regional staff have approved limited, technical corrections to the 6(f) boundary where they determined
there was, in fact a significant mistake in how the boundary was mapped.

The Section 6(f) boundary must encompass a viable public outdoor recreation area that is capable of
being self-sustaining without reliance upon adjoining or additional areas not identified in the scope of the
project. Typical reasons for excluding a portion of a public park or recreation area from 6(f) protection
include plans for a future police or fire station, certain indoor recreation structures, community or other
municipal buildings, private or commercial development, pre-existing buildings or structures, with plans
for uses not allowable in Section 6(f) areas, or any other proposal that if exercised or constructed would
trigger a conversion of use.

Grants under this program are administered by small regional staffs, with my office providing some
oversight, coordination and assistance for the program. At the state level, the L WCF program is
administered by an official (the State Liaison Officer or SLO) designated either by the Governor or by
State statute. This SLO has authority to accept and administer funds awarded under the program and to
perform the other functions set forth in the LWCF manual with respect to overall administration ofthe
program at the State level. Reflecting this policy to defer to state-determined priorities for outdoor
recreation, the grant program also looks for the State and its sub-grantees to undertake fieldwork and site
inspections for individual grants both prior to project approval and at project completion

Decision:

Based on our review of the new record, it is clear that at the time ofNPS approval of the State's
application for Federal assistance (November 30,2001), the Tobacco Warehouse was not suitable for
public outdoor recreation use. The TW was deteriorated to the point that public access was prohibited by
the State due to safety concerns; and although efforts subsequently were undertaken to stabilize the TW
structure with other than LWCF funds I in order to halt further deterioration and to remove a safety hazard
prior to the completion of the project, no plans were included in the LWCF application regarding the
future disposition of the structures or their intended public outdoor recreation use as part ofthe then
Empire Fulton Ferry State Park.

To the contrary, material subsequently submitted to this office indicated that prior to the submission of
the application, the planning process was ongoing. The State had solicited private sector investment in
1997 for the stabilization, redevelopment and productive adaptive reuse of the historic structures which
included the TW. OPRHP subsequently entered into an interim agreement with Two Trees Management
Company, the sole respondent to the Request for Proposal (RFP). The reSUlting Plan/or the D. UMB.O
Waterfront (May 1999) proposed treating the TW as a ruin, preserving the walls, and building a retail
structure behind the fayade, a retail or commercial use that would have justified its exclusion from the
Section 6(f) boundary ofthe TW at that time ifthe plan had been implemented. Also prior to submission
of the application in September 2000, a walled garden and a complementary small scale cafe were
proposed by the Brooklyn Bridge Park Illustrative Master Plan, uses which may have been allowable use
under L WCF program guidelines.

However, while the project was still active in 2002, Two Trees responded to a Brooklyn Bridge Park
Development Corporation RFP for a year-round performing arts facility and cultural center and cafe

1The scope of the original grant included the restoration of the shore line, walkways, landscaping and utilities. The
grant was subsequently amended in 2003 to delete the landscaping and utilities. According to NPS records, LWCF
funds were not utilized to stabilize the TW.
restaurant at the TW that would have also justified its exclusion from the protective boundary. Also
before completion of the project (May 2002), the Governor of the State of New York and the Mayor of
the city of New York entered into a Memorandum of Understanding that provided for the creation of a
development corporation to design and build Brooklyn Bridge Park which would include EFFSP, one of
the guiding principles of which was to develop a fiscally prudent plan which would encourage specialized
commercial uses throughout the park.

In May 2003 the Brooklyn Bridge Concept Plan floated still other options for the TW including a walled
garden, cafe, or space for use by community and arts groups, or possibly a museum. The range of various
uses proposed for the site, some eligible, some ineligible, should have resulted in the exclusion of the TW
from the project boundary. In fact plans and ideas for the future use of the TW continued to proliferate
over the next several years.

However, OPHRP grants staff, as part of the LWCF grant application, proposed a 6(f) map that included
the TW and the Empire Stores. Although recreation uses were taking place at the TW after its walls were
stabilized, OPRHP staff were apparently not aware that the plan for and ultimate uses of the TW and
Empire Stores were ongoing at the highest levels of State and city government while the L WCF project to
improve the waterfront was still active. It is also clear that the establishment of the 6(f) boundary
encompassing the entire EFFSP and implications for allowable uses of all structures within the 6(f)
boundary were not coordinated with State and city officials involved in making decisions for the future of
EFFSP. Despite OPRHP twice confirming, both in application and close-out documentation checklists
that it understood the implications ofthe proposed 6(f) boundary, the fact that NY's planning continued to
consider uses that were not appropriate for a 6( f) park demonstrates that it had not in fact actually done
so.

Section 6(f) is the lynch pin of the L WCF State and local assistance program. NPS has neither the desire
nor authority to negotiate a Section 6( f) boundary correction at the pleasure or for the convenience of a
State simply because a State now has alternative uses of the property. That is what the conversion
process is intended to do. However, for the reasons noted above based on a fuller record, I concur with
the result ofthe Northeast Region's 2008 determination that the inclusion of Empire Stores and the
Tobacco Warehouse within Section 6(f) boundary was a correctable mistake. The new record documents
that the State never intended prior to the grant completion to commit to use the Tobacco Warehouse
solely for public outdoor recreation. In retrospect, the existence of these large structures, comprising
approximately 40 percent of the total park site and their listing on the National Register for which Federal
policy encourages historic preservation, should have signaled that greater attention was needed by the
parties to the grant before including them within the 6(f) boundary.

This decision supersedes the decision contained in the NPS December 12, 2008, letter and represents the

final administrative determination of the Department of the Interior in this regard.

Sincerely, fi,;;;
IJ:~ ~
Acting Chief, State and Local

Programs Division

cc: Adrian Benepe, Commissioner, Parks and Recreation, New York City