This story, in slightly different form, originally appeared in the New York Law Journal.

NEW YORK CITY-A federal judge has barred New York City from turning two Civil War-era Brooklyn buildings over to private developers as part of its plan to develop Brooklyn Bridge Park. Eastern District Judge Eric N. Vitaliano ruled on Wednesday in Brooklyn Heights Association Inc. v. The National Park Service that the federal National Park Service could not retroactively withdraw its protection from the Empire Stores and Tobacco Warehouse buildings after granting it nearly a decade ago.

The ruling is a victory for preservationist and community groups that filed suit earlier this year to block the proposed private development. The suit targeted the National Park Service and the Brooklyn Bridge Development Corporation, the publicly funded entity charged with developing the area.

The Park Service had argued that it had included the two buildings in its original grant of protection by mistake, since they were not suitable for outdoor use. But Judge Vitaliano said the administrative record made it "crystal clear" that the Park Service meant to include the buildings, granting summary judgment to the plaintiffs.

The Tobacco Warehouse was to be used by the St. Ann's Warehouse, a theatrical venue, the only bidder for the space. The city had planned to solicit proposals for the Empire Stores from private developers earlier this year, but was blocked by a temporary restraining order Judge Vitaliano issued in April.

The judge said, however, that his ruling does not mean the buildings can never be turned over to private developers. "It simply requires that the federal government keep its promise…that parkland developed or improved with federal taxpayers' money will remain available for public use, or at the very least, will be replaced with substitute parkland of equal or greater value," he wrote. "That promise must be kept."

Brendan Pierson can be reached at bpierson@alm.com.

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