BROOKLYN HEIGHTS — When a high-powered law firm offers its talent pro bono for a legal action, there’s usually a respectable point of law involved.
This appears to be the case in a lawsuit brought in state and federal court by the joint efforts of the Brooklyn Heights Association, the New York Landmarks Conservancy and the Fulton Ferry Landing Association.
“If they could do this with the Tobacco Warehouse, then they could do it anywhere,” said attorney Jim Walden, co-chair of the White Collar Defense & Investigations Group at Gibson, Dunn & Crutcher, about the allegedly improper “de-parking” (removal from protected parkland) process that has led to the instant litigation. “These things need to be in the sunlight, not done in the dark.”
Momentum seems to be building on the side of the lawsuit’s claim that the National Park Service made an arbitrary and misinformed decision to remove the warehouse’s designated parkland status.
“We’ve taken on a number of causes where communities have been shut-out and government officials in backrooms and hallways have struck decisions without giving the public its right of access, its right of input,” Walden said about the case.
“For 50 years the BHA has been fighting for this landmark, and then suddenly because somebody has the idea to privatize it, they’re shut out. Our firm is always going to take a case like that and represent those parties.”
Walden is referring to the successful efforts by the Brooklyn Heights Association to meet with then-Gov. Hugh Carey and to persuade the New York State Parks Department to purchase the Empire Stores Warehouses and the land between the two bridges. At the time then-Mayor John V. Lindsay was attempting to move the Fort Greene meat market to the waterfront site. Soon thereafter, the land was known as Empire State Park and was maintained by the state parks agency.
Last week the U.S. Department of Justice enjoined work in the area and ordered a review of the decision. Yesterday the New York City Law Department threw in its support, signing a stand-still agreement to enjoin work on the warehouse pending a review by the National Park Service.
Walden’s lawsuit zeroes in on that decision. Federal grant money was first directed to Brooklyn Bridge Park in 2001 and spurred development of the popular project. At that time, the Tobacco Warehouse, which was granted landmark status in 1974, was considered part of the park.
The warehouse was removed from the park, and thus made available to be leased to a private entity, in 2008 by the National Park Service at the request of the New York State Office of Parks, Recreation and Historic Decision.
“All I know is that in the application, State Parks said, ‘The Tobacco Warehouse is neither suitable for, nor used for, outdoor recreational opportunities.’ That is not true,” Walden said. “I think any lawsuit that goes to show that there were false federal filings is one that is filed in the public’s interest.”
In fact, the warehouse has lent itself to be used as a unique outdoors event space for a decade, with its roofles and windowless structure framing views of the park and waterfront. Free and ticketed activities open to the public took place in the Warehouse from 2002 to 2009, Walden said, ticking off events from plays and concerts to recreation camps, picnics and weddings.
“Just about anyone that wanted to use the Tobacco Warehouse for an event that entertained the public was able to do it under the old structure,” he said.
Walden’s petition requests that the Tobacco Warehouse remain part of Brooklyn Bridge Park and that no action be taken “in reliance on the 2008 determination of the National Park Service.” He said that his clients would be open to proposals for how to best use the location if the process had been done properly.
“It’s not about what eventually happens to it (the Tobacco Warehouse); it’s about restoring the Tobacco Warehouse to the point where the public was actually involved in the process,” he said.
St. Ann’s Warehouse Not the Issue
The lawsuit is even drawing some scrutiny from those who believe St. Ann’s Warehouse, the DUMBO-based theater company that has been selected to lease and develop the site, would be a perfectly fine tenant in the area.
“My clients have a great deal of respect for St. Ann’s Warehouse and for the incredibly important work that Two Trees has done to develop DUMBO,” Walden said. “They want to see St. Ann’s in a new home as much as anybody else. It doesn’t mean that the Tobacco Warehouse should be pulled out of federal protection to achieve that goal, or that that’s the only possibility.”
Walden also refuted claims by some commentators that this lawsuit is part of a scheme to keep traffic levels down in the area.
“They [the BHA] supported the idea of turning it into an ice-skating rink and a roller rink. In my view, that use, day-in and day-out, would create much more traffic,” Walden said.
A 19th-century structure, the Tobacco Warehouse stands northeast of the Brooklyn Bridge as a relic of Brooklyn’s former shipping industry.
Among the ticketed and free events held at the Warehouse have been a Fashion Week show, a “literary mingle” as part of the Brooklyn Bookfest, staged performances of Shakespeare and the Brooklyn Brewery’s annual Pigfest.
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