Preservation Issues

Second Court Decision Finds City and State Violated the Law Regarding the Tobacco Warehouse

Tobacco Warehouse, Brooklyn

Read the State decision below

State Opinion.pdf

December 13, 2011

A State Supreme Court Justice ruled that the City and State violated the State Public Trust doctrine when they removed the Tobacco Warehouse from Brooklyn Bridge Park.

This strong decision follows an equally strong Federal Court decision in July stating that the City and State violated federal laws in this same action. The Landmarks Conservancy was a co-plaintiff in the Federal suit.

A press release is below.

Press Release by Linda Gross, LCG Communications
-December 13th, 2011

Community Groups Score Second Big Win In Tobacco Warehouse Case

State Court Declares Illegal Transfer Of Historic Structure a “Nullity,” Saying State And City Officials Violated Public Trust

Brooklyn, New York – In sweeping language, a state judge ruled yesterday evening that state and city officials violated the public trust by transferring the Tobacco Warehouse to a private theater, and he forbade officials from taking any further action over the historic structure (which is located within Brooklyn Bridge Park) without the explicit approval of the state legislature.

With this new decision, the plaintiffs in the case — the Brooklyn Heights Association (BHA) and the Fulton Ferry Landing Association — achieved a second historic legal victory, which has far-reaching consequences.

The decision severely restricts state or city officials from giving parkland away for private development. In his decision yesterday, Justice David B. Vaughan wrote that the Bloomberg Administration’s plan, which got the help of state officials, was a “nullity because it violated New York’s public trust doctrine.” The court’s decision recounts the shadowy series of transfers, based on dubious legal authority, the administration had used to transfer the Tobacco Warehouse to private interests. Justice Vaughan’s opinion rebuked the Administration’s arguments, citing “undisputed evidence” that the dedication of the Tobacco Warehouse as parkland was “manifestly unambiguous” and derided the Administration’s arguments as “conclusory” and devoid of legal support.

“Since two separate courts have found the government’s actions unlawful, we hope the Administration will finally appreciate that it put the interests of a private organization over the public interest, and it failed in its duties to protect a vibrant and important public structure,” said Jim Walden an attorney with Gibson Dunn & Crutcher, the firm that litigated the case pro bono on behalf of the plaintiffs.

“We knew that our fight to save the Tobacco Warehouse for the public was necessary and that the defense of the public trust in this case was the right thing for the Brooklyn Heights Association to do. We feel doubly rewarded by Justice Vaughan’s decision to uphold it,” said Judy Stanton, Executive Director of the BHA.

“Historically, it’s fallen to us, the community, to step forward to protect the Tobacco Warehouse from being snatched from the public. This victory for public land – not once, but twice affirmed by the court, is incredibly gratifying and will stand as a precedent for years to come,” said Joan Zimmerman, President of the Fulton Ferry Landing Association.

The public trust doctrine is an accepted legal principle, a part of common law in New York State, which says that parks belong to the people. If land has been designated or used as a park consistently, state courts have often ruled that the land cannot be removed or “alienated” without the approval of the State’s legislature.

Assemblymember Joan Millman, in whose district the Tobacco Warehouse resides, applauded the decision and vowed to uphold the public trust doctrine, if put to the test. “Our position regarding the Tobacco Warehouse has once been upheld, first by the federal court and now by our state court. According to the state judge, a municipality cannot take dedicated parkland and covert it to non park purposes without the approval of the state legislature. And there’s no way I’m approving that,” she said.

This decision follows a federal decision in July, also in favor of Gibson Dunn’s clients, (including The New York Landmarks Conservancy, and the Preservation League of New York State in addition to the Brooklyn Heights Association and the Fulton Ferry Landing Association) declaring that federal, state, and city officials violated federal law by removing the structure without following a regulatory requirements. The state decision is broader, as officials are now required to get permission from the state legislature before they can even apply exemptions under federal rules.

“Today’s court decision is another sign that process does matter, and New York’s public trust doctrine is one of our state’s fundamental protections of open space. I hope that the community comes together on uses for the Tobacco Warehouse within the definitions laid out by the court yesterday,” said State Senator Daniel Squadron, who represents the Tobacco Warehouse neighborhood.

But the state court’s decision also has national implications, especially for those concerned with protecting public spaces. “Groups fighting for the preservation of public parkland, other public spaces and landmarks will hail this as a major victory and will be able to cite this case as they pursue their own battles,” said Peg Breen, President of the New York Landmarks Conservancy.

“We hope everyone will now agree that the Tobacco Warehouse is exactly where it belongs and that a precedent has been set that sends a strong message: public spaces and are for all of the public to enjoy and attempts to take away any of it will be met with action by community groups and the courts,” said Jane McGroarty, President of the Brooklyn Heights Association.

In addition to Jim Walden, the Gibson Dunn & Crutcher legal team included attorneys James Hallowell, Richard Falek, Adam Cohen, Matthew Menendez, Kimberly Yuhas, Adam Jantzi, Lloyd Kim, Vikram Kumar, and Yara Mansour.