February 6, 2023

Times Square, Grand Central and the Laws That Build the City

Designers design buildings. Engineers engineer them. But the law is New York’s foundational architect and building block.

Before plans can be drawn up and construction crews can start jackhammering, legislators, lawyers, public representatives and planners decide how streets and buildings will be configured, the different ways they can be used and occupied, not to mention when and by whom.

The half mile or so between Times Square and Grand Central Terminal along 42nd Street, the heart of Midtown Manhattan, is ordinarily stoked by commerce and commuters. Its daily life, architecture and economy have taken shape over the years in no small measure as a consequence of legislative and political maneuvers, legal squabbles, regulations and court decisions.

This is the latest in a series of (edited, condensed) walks around the city. Jerold S. Kayden teaches law and urban planning at the Harvard Graduate School of Design, where he holds a chair named after the lawyer who greatly influenced the drafting of New York’s (and America’s) first comprehensive zoning legislation. Mr. Kayden clerked for Supreme Court Justice William J. Brennan Jr., and is an expert on the city’s so-called Privately Owned Public Spaces. He doesn’t seem to mind being referred to as the Pops of POPS.

Right, except for the word sorry. In return for what the Constitution calls “just compensation,” property is taken for some public use or to serve a public purpose. Justice William O. Douglas of the Supreme Court authored an opinion in 1954 that essentially said public purpose means whatever the government says it means. Not surprisingly, eminent domain has had a long and highly controversial history in the United States. It became a go-to for urban planners in the 1950s and ’60s.

Weaponized back then to demolish low-income, minority neighborhoods and replace them with highways or unloved tower-in-the-park housing developments.

Today, you would be hard pressed to find an urban planner who would advocate using eminent domain in the same ways. But for years it was considered a good strategy. It was striking that in 2005, when the Supreme Court upheld the use of eminent domain in Kelo v. City of New London, there was a big outcry all across the country — because in that case the land taken was middle-income, unblighted, white, single-family housing. There hadn’t been the same uproar in cases where a property was occupied by poor people of color.

And in the case of the Times Building?

This whole area is the product of a 13-acre urban renewal project, which relied on eminent domain. For years, there were various plans to clean up 42nd Street, which came and went. Finally, the New York State Urban Development Corporation, and then the Empire State Development Corporation, employed eminent domain to replace what they deemed to be blighted properties with family-friendly entertainment and office towers. Close to 50 lawsuits were filed, several claiming that eminent domain was not serving the public good but just being used to take property from one private owner, giving it over to another private owner, who was going to make a hell of a lot of money from the new development.

So you’re a critic of the redevelopment effort.

No. There are plenty of romantics who still look back at what Times Square and 42nd Street used to be in the ’60s and ’70s and claim that sort of wildness was what made New York City what it was. Rebecca Robertson, the former president of the 42nd Street Development Project, who is a very remarkable, thoughtful person, will look at you steely-eyed if you make this argument and point out that there was nothing romantic about child prostitution, which was one of many crimes taking place on 42nd Street before redevelopment.

Of course, the only two options weren’t Disney or child prostitution. But one lingering question is whether change might have happened anyway — whether it could have been accomplished, gradually, without eminent domain, by, say, a more aggressive use of rezoning.

It’s one of those unanswerable counterfactuals. The litigation brought about delays, so change turned out to be gradual, which was good because some early renewal plans like the one by Johnson/Burgee were rejected.

In the mid-80s, Philip Johnson and his partner John Burgee proposed turning Times Square into a kind of antiseptic office park with four Postmodern office towers and a giant sculpture of an apple by Robert Venturi and Denise Scott Brown. That might have been a bullet dodged but I can’t say that what we ended up with is either very attractive or wholesome.

Speaking of wholesome, an interesting issue that arose was where the adult entertainment businesses would go. The city decided to enact what some of us in the land use field refer to as “erogenous zoning”: prohibiting adult entertainment uses from residential areas, some manufacturing and commercial districts, requiring that they could locate no closer than 500 feet from schools, day care centers, houses of worship. That ordinance was challenged on constitutional grounds, because adult entertainment also has rights under the First Amendment free speech clause. On another, related note, you remember the controversy over the Elmos and desnudas in Times Square?

In 2015, Mayor Bill de Blasio entertained the then-police commissioner Bill Bratton’s idea of ripping out the Bloomberg-era pedestrian plazas — despite their popularity and the fact that they boosted business and lowered the number of traffic accidents — because they had attracted some unruly costumed panhandlers and topless women wearing body paint. An anti-Semitic Elmo was reportedly ranting outside Toys “R” Us and a Cookie Monster shoved a 2-year-old.

Elmo and Cookie Monster have free speech rights, too, which the city can regulate by declaring where they can operate, within designated zones. Under the Constitution, the government can say, “Here you can speak, there you can’t. You can do it at this hour, but not at that hour, you can speak in a normal voice but not use a bullhorn.” But it has to be reasonable regulation.

Jane Jacobs gets all the play, but Holly Whyte deserves to be celebrated more than he has been. All this happened in the late ’80s and ’90s, around the same time as the appearance of a legally created vehicle called the Business Improvement District, or BID, which Biederman had pioneered up the street at Grand Central Terminal. The Bryant Park Corporation took on some of the characteristics of a BID, meaning a private, not-for-profit that managed the park.

Your point is that, at Bryant Park, private management worked. But it doesn’t always, as is the case with various POPS.

Like 120 Park Avenue, known originally as the Philip Morris Building, just up the block.

Grand Central is a magisterial, Beaux-Arts masterpiece, but for a subset of idiosyncratic people known as land-use lawyers and preservationists, it is equally revered as the subject of one of the most important constitutional law decisions ever issued by the Supreme Court. The case was Penn Central Transportation Company v. New York City in 1978, and it grew out of the city’s landmarks preservation law.

There were actually two proposals submitted to the commission, no?

Yes. One essentially destroyed the terminal. The other preserved the facade, but with the tower above. Both were turned down by the commission. So Penn Central brought a lawsuit, claiming that under the just compensation clause of the United States Constitution, property had been effectively taken from the company, because Penn Central was being prevented from earning the $3 million a year that the developer had promised to pay Penn Central in return for the right to build the tower.

In 1978, Justice Brennan of the United States Supreme Court authored the opinion that upheld the constitutionality of the landmarks preservation law, saying that the landmarks law served a worthy public purpose. He concluded that while the law undeniably reduced the value of Penn Central’s property, it still left the company with a reasonable return for the existing terminal use. In effect, he said, the company wasn’t entitled constitutionally to the speculative value associated with the building of a new tower above the terminal.

Thanks to which thousands of buildings and historical sites have now been preserved for posterity, reshaping New York and modern America. Brennan’s opinion has had more influence on the city during the last 40 years than the work of any architect or planner. But the ruling also meant it is constitutional that a city might reduce the value of your property, and it doesn’t necessarily owe you.

Michael, you have the makings of a superb constitutional land-use lawyer.

I missed my calling.

At that time, Penn Central owned other sites nearby, to which it could transfer development rights, which led Justice Brennan to conclude that the company could reap some additional financial benefit.

So readers not steeped in the utterly riveting minutiae of zoning understand, in certain cases owners that don’t max out on what zoning allows for a particular building site can sell the unused square footage to a contiguous site.

Right. Recently, the city passed zoning amendments that allow certain development rights to be transferred or sold within an 80-odd block district around Grand Central. Owners can also build larger buildings in the district if they provide transportation infrastructure and public realm improvements. Which is how we get One Vanderbilt.

Advertised as the commercial future of Midtown East. The latest new thing in the neighborhood. A just-opened 1,400-foot-high office tower right next door to Grand Central, developed by SL Green Realty, designed by Kohn Pedersen Fox in a way that allows peekaboo views of the terminal at street level, and that also corkscrews at the top, nodding toward the nearby Chrysler Building’s crown. The developers spent $220 million on train access, a new plaza and other public amenities, which they promise to maintain, as part of the deal with the city.

With so many eyeballs on this site, I would be surprised if they didn’t keep their promise.

And if they don’t?

That’s why we have lawyers.

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