November 2011 - Parks & Recreation - 41

the context of section 6(f)(3) are to be interpreted " broadly, to encompass uses
not involving the public's actual physical
presence on the property. "
Here, the Tobacco Warehouse and
Empire Stores serve an analogous
function, albeit in the context of New
York City, by adding to the scenic
character of the park and serving as a
buffer between the waterfront parkland and the commercially developed
DUMBO [i.e., Down Under the Manhattan Bridge Overpass] neighborhood
(to say nothing of the actual public outdoor recreation use inside the
Tobacco Warehouse and the public
restroom and park administration offices located at Empire Stores). Indeed,
BBPC itself markets the appeal of Empire Stores and the " iconic " Tobacco
Warehouse as " Points of Interest " to
draw visitors to the park.

These post-completion responsibilities
apply to each area or facility for which
Land and Water Conservation Fund
(LWCF) assistance is obtained, regardless of the extent of participation
of the program in the assisted area or
facility (emphasis of court ). See 36
C.F.R. § 59.1

Moreover, § 59.1 plainly indicates
that some property may be included
within the 6(f)(3) boundary despite
not receiving LWCF assistance. In
many instances, this mutually agreed
to area exceeds that actually receiving
LWCF assistance so as to assure the
protection of a viable recreation entity.

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In the opinion of the federal district
court, it was particularly " troubling " that
" NPS accepted OPRHP's bare assertion
of unsuitability and regurgitated it in a
revisionist finding of its own: 'since these
former warehouses are not suitable for
recreational use by the public, the preexisting warehouses should have been
excluded'. " According to the court, NPS
had based its decision " on an invisible record, and, in a sweeping action, entirely
failed to consider an important aspect of
the problem, " viz., " the vital importance
of the § 6(f)(3) protection of LWCF-assisted property. " As a result, the federal
district court found NPS had acted " contrary to the statutory provisions of the
LWCF and the regulations that govern its
application. "

Support Facilities
As cited by the court, " NPS regulations
make it clear that a 6(f)(3) boundary may
protect properties-including not only
the Tobacco Warehouse but also Empire Stores, with its OPRHP office space
and public restrooms-that 'support' or
'assure the protection of' public outdoor
recreation property without actually being used for public outdoor recreation
themselves. "

	

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& Recreation	 39
November 2011 - Parks & Recreation

Table of Contents for the Digital Edition of November 2011 - Parks & Recreation
