Agency takes administrative shortcut = problem

When an agency tries to take a shortcut or change its mind after a decision, it can raise all sorts of problems. Dean Patty Salkin (Albany) describes such a situation in "Fed. Dist. Court Prevents Performing Arts Center From Relocating to Dilapidated Historic Warehouse" on her Law of the Land blog:

The tobacco warehouse, which has been on the National Register since 1974, is located in Empire Fulton Ferry State Park. In 2001, the New York State Office of Parks, Recreation, and Historic Preservation (OPRHP) received funding from the National Park Service (NPS) for a cove restoration project in the park, and included the tobacco warehouse in the boundary map. The grant was authorized under Section 6(f)(3) of the Land and Water Conservation Fund Act, 16 U.S.C. § 4601-8(f)(3), which requires that “once an area has been funded with L&WCF assistance, it [must be] 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.” ...

In 2008, after the project had been completed and administratively closed, OPRHP asked NPS to amend the project boundary map to exclude the tobacco warehouse, explaining that “these former warehouse buildings are not suitable for nor used by the public for outdoor recreational opportunities in the park….” Because the grant program was not intended to provide assistance for indoor recreational use, NPS agreed that it should not have included the buildings within the project boundaries and approved the revised project map.

The amended map was later attached to a conveyance of the property to the Brooklyn Bridge Park Corporation, which intended to include it in a larger park covering 85 acres of Brooklyn waterfront. In 2010, BBPC approved St. Ann’s Warehouse’s application to rehabilitate the tobacco warehouse as a performance space and outdoor garden. The project would preserve the walls of the historic structure, but add a roof for the theater.

At this point, the Brooklyn Heights Association raised concerns that construction would damage the historic structure, and it requested that NPS reverse its decision to exclude the tobacco warehouse from the LWCFA project map. NPS, treating this request as a “informal appeal,” issued a final decision in February, 2011, upholding the map amendment. Although NPS recognized that it did not follow its regulations for substituting reasonably equivalent property for the parcels removed from the project boundary, it considered the change to be a “technical correction” that was exempted from these procedures. BHA then filed for a preliminary injunction to prevent the theater project from going forward. ...

[Discussion of equitable issues for injunction.]

More importantly, neither the LWCFA nor NPS’s regulations included any provision for “’technical correction’ procedure self-originated and employed by NPS here, even given…a deferential treatment of NPS’s interpretations of these provisions.” To the contrary, “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.” NPS’s “last gasp argument”—that it had an inherent residual power to reconsider its action—was also rejected by the court.

An agency has to follow its own rules. It can change those rules, but it needs to follow the rules for changing rules. Shortcuts create problems. EMM