Attachments to the Amended Complaint, dated

March 1, 2011

ATTACHMENT B

New York State Office of Parks, 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'

David A. Paterson Governor

Carol Ash Commissioner

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 York." . . .... :'.;.: .

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An Equal Opportunity/Affirmative Action Agency

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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

IN REPLY REFER TO:

L32 (4507) 36-01225 Empire Fulton Ferry State Park

Ms. Melinda Scott, Chief of Grants

NATIONAL PARK SERVICE Northeast Region

U.S. Custom House 200 Chestnut Street

Philadelphia, PA 19106-2878

L WCF 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 L WCF 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 L WCF 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 L WCF 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 L WCF 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 L WCF 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 L WCF 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.

cc.

Respectfully submitted.

Jane Carroll McGroarty President

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

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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 36­01225), 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 ofNew 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 L WCF 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 L WCF 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 L WCF 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 L WCF 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 L WCF 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

1 The 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 ofNew 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 ofthe 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