**Become a member of The Art Deco Society of New York at www.artdeco.org. With over 25 events per year, ADSNY is an active cultural and social non-profit organization dedicated to preserving and celebrating architecture, decorative arts, fashion, and music from the 1920s and 30s! I look forward to seeing you at the next event!**

15 April 2011

Understanding the Tobacco Warehouse Controversy

A sigh of relief was heard last Friday from local preservation advocacy groups, the New York Landmarks Conservancy, Fulton Ferry Landing Association and Brooklyn Heights Association, after federal judge Eric Vitaliano "granted a preliminary injunction" halting New York City's plan to turn over two historic structures to private developers. The verdict comes as a response from a lawsuit filed by the advocacy groups back in January when they claimed the National Park Service (NPS) and the New York State Office of Parks, Recreation and Historic Preservation (OPRHP) were urged by the Bloomberg Administration to revise the zoning map, whereby the Tobacco Warehouse and the Empire Stores building were strategically drawn out of the federal landscape.

Nearly 150 years old, the Tobacco Warehouse once served as an inspection site for imported tobacco, while the Empire Stores building was used for coffee storage among other spices. Both are located in the northern section of Brooklyn Bridge Park in the Fulton Ferry Landing District. Their presence celebrates the shipping industry that once played an integral role in New York City's 19th century economy. 

In order to understand the court's decision, one must be aware of the laws that protect these historic buildings. First, the structures are located on federal parkland which means NPS is ultimately responsible for their well-being. Secondly, the Tobacco Warehouse has been on the National Register of Historic Places since 1974 protecting it from demolition. Finally, OPRHP applied for a Land and Water Conservation Fund grant and was awarded the funds in 2001. Under this grant certain requirements must be satisfied and laws obeyed. Of great importance is a provision in the Land and Water Conservation Fund Act of 1965 under section 6(f)(3) which states: "no property acquired or developed with assistance under this section shall, without the approval of the Secretary [of the Interior], be converted to other than public outdoor recreation uses." To preservationists dismay, this is exactly the compliance that had been breached by allowing St. Ann's Warehouse, a theater group in DUMBO, to lead a $15 million redevelopment of the empty Tobacco Warehouse including building a permanent performance space and administrative offices.

The heart of the controversy lies in changes made to the zoning area. A subsequent paragraph in section 6 reads: "No changes may be made to the 6(f) boundary after final reimbursement unless the project is amended as a result of an NPS approved conversion." In 2003  no other documentation accompanied the request for final reimbursement of the grant. The monies were claimed and the grant was closed out in good order. However, in 2008 OPRHP requested NPS to "revise the section 6(f) boundary map" for the Empire Fulton State Park (ESFP) stating that the warehouse buildings were "not suitable for nor used by the public for outdoor recreational opportunities in the park." In response, NPS acknowledged their oversight of the warehouses in the original grant application stating they should not have been part of the area under the terms of the grant as the grant only covers conservation of land and water and outdoor public spaces. To complicate matters further, NPS reissued a new boundary map that did not include the Tobacco Warehouse or the Empire Stores building.
The precedent this case could set  is of great concern to the preservation community as it would essentially compromise the protection historic buildings and sites currently receive under HPS. As Peg Breen, President of the New York Landmarks Conservancy, stated last Sunday, "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 could suffer."

The debate is not solely pinned to HPS overlooking buildings in a grant application; rather, it extends to the lack of coordination between the state and city agencies. EFSP and OPRHP twice confirmed that by submitting appropriate documentation to complete the grant application, including the controversial boundary map with the Tobacco Warehouse and Empire States building in its zone, "it understood the implications of the proposed 6(f) boundary." If they were unable to foresee the use of the buildings in the future by either state or city agencies, OPRHP should never have included the buildings in their grant submission.

According to Vitaliano's decision, the plaintiffs demonstrated irreparable harm and a likelihood of success on the merits which were items necessary to order an injunction. St. Ann's Warehouse and/or Brooklyn Bridge Park Corporation (BBPC) are planning to commence drilling in the concrete floor to determine whether or not the structure is sound for further development. Potential injury to the building is completely possible and, "all agree that the Tobacco Warehouse is worthy of preservation and care, and thus the inadequacy of monetary compensation for any harm to it is self-evident." The likelihood of success on the merits was based on the record of the Land and Water Conservation Fund grant. "There is no suggestion of a cartographical error of any kind...the purposeful inclusion and acceptance of the structures within the 6(f)(3) boundary is further confirmed by a wealth of details from the record."

The good news is the Tobacco Warehouse will continue to serve as an outdoor public space enjoyed by those who visit Brooklyn Bridge Park. On the other hand, St. Ann's Warehouse might be out of a home if they do not find a proper space for their theater group. Preservation decisions are never black and white. Although adaptive reuse of the buildings presented itself as a viable option at first glance, the integrity of the buildings might be compromised due to dangerous construction conditions. It is also unfair for city agencies to proceed with any projects that directly affect the public without first consulting them. NPS and BBPC will most likely continue to challenge the court's decision by using the case they made a mistake in the grant application submission, but is this really just cause for potentially harming a historic property and taking it out of the public's hands?

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