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Originally Posted by Crawford
Why would it be a "taking" and why could Grand Central's air rights not be sold?
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They might not be sold because the city could undercut the existing TDR market - ie, offer developers square footage for far below what it would have cost them to buy up air rights in the conventional way.
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Originally Posted by Crawford
The city has the legal right to "unilaterally offer additional air rights" already, everywhere in the city. A municipality can change its zoning whenever it chooses to.
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As-of-right zoning changes and selling air rights are two very different things from a zoning law perspective. Also, New York can't change its zoning "whenever it chooses to." There are processes in place to guide those changes.
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Originally Posted by Crawford
You think developers can succesfully sue when an area is downzoned? Of course not. The law recognizes that municipalities have the right to control their built form, and there is no permanent, unalienable right to maintain zoning as-is.
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Of course they can. If you can prove that a down zoning constitutes a taking, the city could be on the hook for compensation. You could also prove that the change is done in bad faith - ie, the city is trying to line its own coffers via undercutting of the TDR market - rather than serving a real public interest. When you own a piece of land, you own the rights to develop that land at a certain use and density, which in theory (and in real terms) constitutes economic value. That value is not fungible at the whims of every municipality.
I'm not saying I agree with the Grand Central folks in this case. But that doesn't mean the argument isn't interesting and potentially problematic for the city.