You should have seen George Pataki in January, at the press conference unveiling Santiago Calatrava’s design for the PATH station at ground zero. The governor invoked the late senator Daniel Patrick Moynihan and the 9/11 heroes, adding, “We weren’t just going to create a 21st-century infrastructure. We would do it in such a way that the buildings themselves would be a lasting tribute to those we lost.” Mayor Bloomberg followed, quoting Frank Lloyd Wright and listing the great architects now at work in New York (including Cesar Pelli, architect of the Bloomberg tower). It was as if the buildings were already standing.
Since then, Pataki and Bloomberg have announced plans for 28 million square feet of offices in the West Thirties, built around a stadium for the Jets and maybe the 2012 Olympics, plus a subway extension and a new avenue between Tenth and Eleventh—again, presented as if they were destined to be. Just as 9/11 transformed President Bush from a figurehead into a “war president,” Pataki has metamorphosed into an Ayn Rand Master Builder, leading architects on the path to greatness and knocking down all that stands in his way.
Yes, old-time urban renewal is back in style—and eminent domain, urban renewal’s best friend, is back, too. The Durst Organization, long in pursuit of the small buildings on the northwest corner of 42nd Street and Sixth Avenue, recently got the Empire State Development Corporation to condemn them. Soon Durst will begin construction there on a tower for Bank of America, to be called 1 Bryant Park and financed with $650 million worth of post-9/11 Liberty Bonds.
“New York State has the most developer-friendly eminent-domain laws in the country.”
The right of eminent domain, or the state’s ability to seize land for public use (paying the owners fair market value), is longstanding. But over the years the phrase “public use” has taken on broader and broader meaning. According to Norman Siegel, the civil-rights lawyer and former head of the New York Civil Liberties Union, a 1954 Supreme Court decision allowing land to be taken by a public agency put the court’s stamp on the urban-renewal boom that followed. A 1981 decision in Michigan, allowing a neighborhood to be condemned for a GM plant, transformed eminent domain into the voracious creature it is today. “From my perspective,” says Siegel, “eminent domain has run amok.”
In New York, we associate the abuse of eminent domain with Robert Moses, who, as of the head of the Triborough Bridge and Tunnel Authority, amassed enough power to remap the city. He built the Cross Bronx Expressway, Lincoln Center, the New York Coliseum, and much more. If Moses had had his way, there would be a highway where Soho sits, and a cluster of towers instead of the West Village. Moses did for eminent domain what Vietnam did for war: He made it into something no one wanted to be associated with for a long time. But times have changed, war is back, and so is eminent domain.
In truth, neither really went away. The redevelopment of Times Square relied heavily on seized property along 42nd Street. So does the planned New York Times tower on Eighth Avenue. What’s changed is that big rebuilding schemes are back in style. That’s partly attributable to Deputy Mayor Daniel Doctoroff, who’s leading the 2012 Olympics bid and all the development that the Games would bring. Public interest in the new World Trade Center also taught many officials about the power of architecture. Daniel Libeskind has sixteen acres of lower Manhattan, more or less, at his disposal; Sir Norman Foster is building one of his extraordinary Erector-set towers atop the Hearst Building on 57th Street; Frank Gehry is onboard for the Brooklyn Nets arena. This eagerness to build anew, however, brings with it an impatience to clear away impediments or, as Moses infamously put it, “hack your way with a meat ax.”
To be fair, the West Side stadium itself does not require any private property. It does involve public money: The Jets will put up $800 million for the stadium, and the state and city will front $600 million for a platform atop the rail yards and a retractable roof. (In other cities, issues like this are on the ballot. San Francisco, for example, voted down public funds for its baseball park, which was built with private money.) The $3 billion worth of infrastructure to support the stadium, however, is another story. Eminent domain enters into the picture with the plan to cut a new tree-lined strip called Hudson Boulevard, from 33rd to 42nd Street, between Tenth and Eleventh Avenues. The city’s Uniform Land Use Review Procedure, a long process of public scrutiny instituted to counter meat-ax tactics, doesn’t apply to the stadium, because the air rights over the tracks belong to the state, but it does affect the rest of the project, and that’s where opposition is coalescing. “Their strategy is to portray the stadium plan as a done deal,” notes Anthony Borelli of Manhattan’s Community Board 4.
As for Brooklyn, even more is envisioned. The planners see Flatbush Avenue and Fulton Street lined with office towers to bring back-office business home from Jersey City, plus high-density residential and retail building. It is pure old-school urban renewal, all on private land. At least 100 businesses of the modest type common in downtown Brooklyn will likely be forced out, along with 130 residences. This doesn’t even include Bruce Ratner’s much-talked-about Nets arena on Flatbush Avenue, ringed by seventeen high-rises. The whole thing will require condemning some 70 buildings and removing 100 residents (Ratner’s estimate), or 569 residents and jobs (Siegel’s number).
So far, the Empire State Development Corporation claims “nothing has been decided” about whether the state agency will step in and take property for the arena. The MTA denies that the sale of its air rights to Ratner is a fait accompli. But, as Forest City Ratner vice-president Jim Stuckey points out, when Ratner announced his acquisition of the Nets, he was flanked by Bloomberg and Pataki.
Activist groups such as the Prospect Heights Action Coalition have sprung up since the Ratner plan was announced, staging public rallies and hiring Siegel, who’d like to make the situation a test case. “The question becomes,” in Siegel’s view, “what did the framers of the Constitution mean when they talked about public use?”
Stuckey, for his part, intends to have shovels in the dirt a year from now. He has political momentum on his side. And New York State has the most developer-friendly eminent-domain laws in the country. “The problem with New York State is judicial,” explains Dana Berliner, a property-law expert with the libertarian Institute for Justice in Washington. “It’s public use to engage in any development project—it almost doesn’t matter what.” Berliner points out that New York is one of a handful of states that don’t give notice to owners in time to challenge a condemnation. (A published notice is the only announcement; 30 days later, the challenge period expires, all before the owner gets a formal letter.) A bill was passed by the State Legislature last year to rectify this Catch-22. It was vetoed by the Master Builder himself, George Pataki.