State Court Rules Bloomberg Administration and State Acted Improperly in Tobacco Warehouse Transfer

While the attempted turnover of the Tobacco Warehouse for use as a new home for St. Ann’s Warehouse Theater was effectively stopped by a federal court’s decision in July (and St. Ann’s has found a new, if temporary, home in DUMBO), a New York State court ruled in a parallel action brought by the same plaintiffs as the federal one–the Brooklyn Heights Association, the Fulton Ferry Landing Association, the New York Landmarks Conservancy, and the Preservation League of New York State–that the actions of both the city and state governments in transferring the historic structure were a “nullity because [they] violated New York’s public trust doctrine.”

Judy Stanton, Executive Director of the BHA, said:

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.

BHA President Jane McGroarty said:

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.

Joan Zimmerman, President of the Fulton Ferry Landing Association, said:

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.

The decision was also praised by State Senator Daniel Squadron and Assemblywoman Joan Millman.

Update: Haley Stein, Esq., Senior Counsel in the City’s Law Department, who served as lead counsel for the City in the case, had this to say:

This decision is a major setback toward improving the park and prevents the City and Brooklyn Bridge Park from moving forward with a project that would provide funding for the long-term preservation of the Tobacco Warehouse. The State transferred Tobacco Warehouse to Brooklyn Bridge Park without parkland restrictions, and we continue to believe that the community would greatly benefit from its re-use as a cultural and community center. The decision also hinders plans to rehabilitate and re-use Empire Stores — a series of enclosed warehouse buildings that are in need of preservation and are not usable by the public. The redevelopment of Empire Stores as a commercial and retail space is vital to providing revenue for the operation and maintenance of the park. We disagree with the decision and are considering our legal options.

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  • Livingston

    Am still disgusted by this ruling. Meanwhile, the Tobacco Warehouse remains an unused and desolate ruin.

  • jdubs

    just shows that sometimes you lose when you win….so much for me ever supporting these organization

    To the end the exude a sense of self-righteousness

  • stuart

    while the ends may have been commendable, the means were illegal.
    there are many who believe the ends justify the means but I believe whenever the universal application of law is upheld -the rich and powerful are not exempt- it is a victory for the community and for our democratic ideals. The state and city officials were wrong to give away public land. Bravo to the brave civic minded people who had the courage to stand up for what is right.

  • Karl Junkersfeld

    Community didn’t win this one IMHO. The Tobacco Warehouse will sit there and be of little use to the public at large and the Empire Stores are falling part before our very eyes. I walk by here every day for my baguette, at Almondine, and it breaks my heart to see these beautiful structures deteriorating right before my very eyes. If you recall, during the DUMBO Arts Festival someone took it upon themself to further desecrate this wonderful building with additional graffiti. When I questioned people as to their reaction, their response was “its fits in with the already existing graffiti”. No one respects this building under in its current state of political limbo.

    Apparently, the game is over so complaining is pointless. Congrats Brooklyn Heights Association.

  • Livingston

    Yup, a non-profit theatre is a real menace to society and our democratic ideals. The horror!

  • stuart

    what is the matter with you people? State and local officials conspired to take parkland away from the public and hand it over to a private developer without so much as a hearing? That’s Putin style governance. Holy crap! I expect a little more from the State and City Parks Department. Like TO FOLLOW THE LAW.

  • fulton ferry res

    “Meanwhile, the Tobacco Warehouse remains an unused and desolate ruin.”

    Yes, and a beautiful one at that — a building that any member of the public can walk into for whatever purpose desired, whether it be for meditation, admiring the views upward towards the Bridge, or attending any number of free cultural events staged there, such as October’s installation of Origin, the interactive audio-visual cube created by United Visual Artists as part of the Creators Project initiative. So much for unused.

  • David on Middagh

    Stuart, thank you. I was about to call the posters above you a bunch of Tories, but you have saved me from resorting to an epithet.

    Due process: without it, this nation is nothing.

  • stuart

    the elites often think that laws are only for the little people and can be sidestepped with a nod and a wink. Bloomberg. being a product of the Financial industry, certainly believes that. But I am surprised that otherwise sensible people in the neighborhood should be enticed by a theater troupe to ignore the law and nullify regulations intended to protect public parks. St. Ann’s Warehouse is a nice WASP-friendly theater company, God bless them, but are they really worth throwing overboard public protections of parkland?
    What are some of you thinking?

  • A Neighbor

    This was important. State and federal laws protect the public when a government entity tries to take away public parkland for a private purpose. The laws say this is a serious matter and require that the government entity follow a set of rules that are designed to allow the public to vote yea or nay.

    You can’t give city officials a bye on this just because you like the people they are giving the public parkland to. In fact, the way lawyers analyze this is to ask how you would feel if city officials gave the land to someone you didn’t like — say, a big box store.

    In either case, the laws have to be followed. If (1) the legislature approves the transfer and (2) the city compensates the public with another equal piece of property, then the taking is OK.

    What happened here — and, if you read the opinions, both courts were a bit shocked — is that the 1% decided they knew what was right for the rest of us. Even if you liked their decision, don’t let them make the decisions that we should all be making together.

  • stuart

    Am in agreement with A Neighbor.
    If you read the papers, what is also shocking is the attempted justification/coverup. The parks department claims that the inclusion of the TW and the Empire Stores in, ahem, Empire Fulton Ferry State Park was an error, a mere typo. The Empire Stores, which gave the park half its name, were never really supposed to be part of the park. You know, that really is pretty sleazy. Shame on them.

  • David on Middagh

    Speaking of sleazy justifications/cover-ups, did anyone else notice that the period of closure pending the unhappy paving, redesign and partitioning of the once-wonderfully expansive lawn of that park was described as necessary to fix the drainage (and, oh, there’ll be a carousel)?

  • Livingston

    Could you give the “elites vs. the 99%” jargon a rest? It’s getting a bit hackneyed, if not misleading. Nobody was going to get rich (monetarily speaking) from the St. Ann’s/Tobacco Warehouse project.

    And speaking of money, where are the funds going to come from to maintain the skeletal Tobacco Warehouse and crumbling Empire Stores from further degradation? BHA dues?

  • nicky215

    Squadron praises the ruling.. what a joke.. he stated his career on the backs of advocates for a real public park and sold his vote to stop it to the mayor. he is a typical politican.

  • bklyn20

    “D of M, the drainage was fixed to save the pwecious carousel whose major feature — “Jane’s Nightlight” — doesn’t work. Yet it is supposedly bring in $8000/month, or 4000 visitors x $2.00. And that money is used only to sustain the earrthboou d whirligig

  • bklyn20

    “Earthbound whirligig,” is should have been. Sorry, I’m typing on my phone.

    Too bad they fixed that terrible drainage problem, because we could have turned it into a pool, right?

  • Gerry

    @ bklyn20 – we NEED A POOL!

    All of the development in downtown Brooklyn in the past 20 years and NO pool!

    We need a state of the art 50 meter long 20 feet deep Aquatics Center on Pier 5 where the soccer field is not going to be built.

    Brooklyn needs a pool like Asphalt Green on the east side 92nd street and East End Ave I must go from Brooklyn Heights to 92nd street to swim at 530am every morning.

  • Brian

    @Livingston: Yes, people were indeed making money off this whole scheme. Two Trees and the Walentases, who are booting St. Ann’s Warehouse out of its current space so they can build a high-rise condo building — but they still wanted to keep them nearby, because it adds buzz and draw (this has been their strategy for years in DUMBO: subsidize the arts groups, and the rich condo buyers will come). Plus it was Two Trees that had the inside track to take over Empire Stores — it was slated to be given to them for a nominal long-term ground lease if they kicked in a few extra mil for the Park.

    Also, it’s interesting that all the sob stories about St. Ann’s Warehouse (including in the Times) never mention a very salient fact: that they’ve spent 20 years in their current space virtually rent-free. They agreed to be subsidized by a developer who’s finally kicking them out — and then they blame the community for not letting them hijack public property in an under-the-table deal engineered by the developer. Cry me a river.

    @Stuart; A Neighbor: Absolutely correct. The problem was the total disregard for the legal process. The federal statute involved — under which NY received 300k for improvements to the park back in 2003 — committed the state to preserve the space for public outdoor use *unless* substitute parkland is provided. That is the issue here: the state (in conjunction with the city) was trying to convert those properties from public to private use without giving the public replacement parkland of equal or greater value. The city’s moaning and whining about these court decisions hurting the park are complete hogwash. They have every ability to convert these properties to other uses — it’s just that they want to cut corners and to do it on the cheap and without public input.

    Even worse, if all these government entities had just followed the rules the first time around, the correct process could have been completed by now. Instead, they’re threatening to waste even more time appealing these court decisions and dragging out the fight that *they* precipitated by breaking the rules. If the city continues this fight, shame on them — it would show that they care more about steamrolling the legal process and the public good (and not admitting that they were wrong) than they do about actually finishing off the park.

    To disagree with these court opinions is to exalt aesthetics over the rule of law. I’d rather have buildings sit for a few years and keep my constitutional governance, thanks.

  • Livingston

    Wow, Brian. Kind of feeling like the Grinch today? You begrudge Walentas for developing his own private property and condemn him for the time he generously let a non-profit arts group use the property rent-free? Walentas will profit riregardless of the outcome of St. Ann’s/Tobacco Warehouse — it’s not a quid quo pro situation. And per property rights and rule of law, this is allowed.

    Also,for the record, St. Ann’s has been in Dumbo for 10 years, not 20.

    BTW, if you’re familiar w/ Joseph Papp’s Public Theater in Manhattan, they were able to get their property (formerly the Astor Library) through the city’s intervention. Another historic treasure on the verge of being demolished by a developer in the 1960s, the Landmarks Commission stepped in to rescue it. And this public/private solution has worked out very well, for the building, the arts, and society.

  • Gerry

    @ Brian, @ Livingston @Brooklyn 20, etc. Jane of the Carousal is married to Jed Wallentas she provided DUMBO with a Carousal these Walentas people are a gift to humanity dont y’all see that?

  • Try again

    Actually @Gerry, Jane is married to David Walentas. Jed is her son, not her husband. And whatever else you want to say about the Walentas’ it’s just a plain fact that they a) donated a multimillion gift to the park that includes a carousel which has already brought joy to over 50,000 children, and b) They gave St Ann’s warehouse rent free space for 10 years when they had to leave their prior space in Brooklyn Heights. You may not like them personally, you may disagree with their plan to build a tall building near the brooklyn bridge, and you may argue that both the carousel and the St Ann’s warehouse “gifts” were actually in their own self interest. That may all be true, but it’s also true that we, the people of Brooklyn have also benefited from these moves by having a world class theater in our midst for the past decade and having a beautiful carousel for our kids to ride on. The world is complex – just because someone does something you don’t like in one instance doesn’t mean that everything they do is bad. Sometimes it feels like alot of the folks who were in favor of this lawsuit were viewing this as a continuation of the BHA’s battle with Walentas over the Dock St project, which they lost.

  • Master Of Middagh

    @Try Again- so you think that because they put in a carousel (which is NOT FREE, I will remind you), that entitles them to break to law? I didn’t think so- Try again, Try Again…

  • Master Of Middagh

    That should read “the law”; and it would if this blog would allow me to edit my posts.

  • Gerry

    @ Try Again, Thank you for correcting me I had thought that Jed was Janes husband and not David.

    I have no doubt that the Wallentas empire have done a number of good things with money even the carousal was probably intended for good however on more than one occasion the Two Trees/Wallentas clan have pushed the envelope beyond reason.

    With all of the good deeds that have been done the Wallentas have such a bad reputation why is that? They need a good public relations campaign.

  • Brian

    I don’t begrudge Two Trees’ ability to develop its property. I just think the stories about SAW’s predicament have always conveniently left out some very salient facts — that they were saving oodles of money over the years by not paying rent, they could’ve foreseen that eventually their sugar daddies would pull the plug, and instead of saving for this rainy day, they play along with the land-grab, effectively asking the public to subsidize them by seizing public property for zero compensation (as opposed to the replacement parkland to which the public is entitled). And when the courts stepped in to say that was illegal, SAW has played the victim. But it’s disingenuous at best.

    Two Trees has been clever: appearing generous by subsidizing arts groups and carousels, all of which increases the value of their properties. That’s all well and good, and hats off to them. But they don’t get to have government officials quietly redraw property maps for them without the required legal process — which is what happened here.

    That, by the way, is what the 99%/1% thing is really about. It’s not about whether the 1% can make big profits — they can, and good for them if they do. The problem is when they rig the game by using backchannels and sweetheart deals to entrench and enrich themselves. The problem is that they don’t want to play by the same rules — they want to use their money to be above the law.

    I’m not saying that was necessarily the Walentases’ intent here — or Bloomberg’s — but it sure seems emblematic of a lot of what’s wrong with this city and this country. And using a wittle harmless non-profit performance space as a pawn or cat’s paw doesn’t make it ok.

  • Fritz


  • Elmer Fudd

    Gerry, want a pool? Visit the 2 Trees building on the NE corner of Atlantic Avenue and Court Street. They have a pool. That site used to be a city owned parking garage.


    I have observed this inside dealing for years, spent every summer in court for 30 years. In order to protect your rights it is necessary to bite the bullet. Developers assume the public will wear itself out. I commend the fellow warriors who fought the fight.

  • Claude Scales

    Fritz: is that a grade?

  • Knight

    @Master of Middagh: I empathize with your last post. @Homer: in that vein, have you considered how much technical engineering it would take to allow a poster to recall one of their own comments?