November 2011 - Parks & Recreation - 42

LAW REVIEW continued from page 39

The Manual also allows LWCF assistance for certain " eligible support
facilities, " including support facilities
needed by the public for outdoor recreation use of an area, such as
restroom buildings, as well as facilities that support the operation and
maintenance of the recreation resource on which they are located are
eligible, such as maintenance buildings and administrative offices.
Manual at 3-13.

As a result, the federal district court
concluded that the NPS decision was
" contrary to its own regulations, which demonstrably support the position that the Tobacco Warehouse and Empire Stores were
properly placed on the 6(f)(3) boundary
map. " Accordingly, the court found " any
change to that map removing them constitutes a conversion requiring New York
to consider alternatives and to provide

substitute parkland " consistent with the legal requirements of Section 6(f) (3).

See 36 C.F.R. § 59.3(a)
This section of the Act assures that
once an area has been funded with
LWCF assistance, it is continually maintained in public recreation use unless
NPS approves substitution property of
reasonably equivalent usefulness and
location and of at least equal fair market value. " 36 C.F.R. § 59.3(d)

No Changes
Further, the federal district court noted, " the
LWCF regulations contain no allowance for
a 'revision' or 'correction' to a 6(f)(3) boundary other than through the conversion process. " On the contrary, the court found the
expressed language in the LWCF Manual
provided: " No changes may be made to the
6(f) boundary after final reimbursement unless the project is amended as a result of an
NPS approved conversion. "

Further, the court noted that the Manual specified " what area must be covered
in a § 6(f) boundary map " :

Any change to the 6(f)(3) boundary after the close of an LWCF
grant-regardless whether that change
is referred to as a " revision " or " correction " -triggers the conversion
process and requires the full consideration of alternatives and, if needed, the
substitution of a replacement property.

At a minimum, 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.
Except in unusual cases where it can
be shown a lesser unit is clearly a
self-sustaining outdoor recreation resource, the area subject to Section 6(f)

no boundaries.

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November 2011 - Parks & Recreation

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