Quote:
Originally Posted by phoenixboi08
Well, it will be argued as being a "per se" takings. What the courts will have to determine is whether or not this rezoning removes all use of the land...in this case, the use is a transfer from the landmark to an adjacent site. From what I understand, the entire purpose of air rights was to allow owners to profit from land value since the current landmarks law doesn't not allow them to extract that value, on-site.
From a strict reading of the law, this guy probably doesn't have any standing, since the air rights simply guarantees that development can be transferred from the landmark site elsewhere, but doesn't guarantee/protect the value of that right.
Theoretically, a depreciation of the air rights does not remove all economically viable use of that [transferable property].
I don't predict an injunction from the court...but you never now.
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I appreciate that it would be argued as a "per se" taking, but would that argument not apply to all rezonings? When the city passes a down-zoning and the FAR of a particular parcel is reduced, existing air rights are not just less valuable (as in this case), but they are literally eliminated all together. To take the argument a step further, all zoning laws could be viewed as a per se "taking", in that they effect a diminution in the value of a parcel relative to what it would be without government intervention (i.e., if air rights were unlimited).
Thinking about this a little further, I'm guessing that this case is going to have to turn on the "public purpose" prong of the analysis. As you correctly point out, there is no colorable argument that the regulation extinguishes all economic use of the property--in fact he can still sell for a massive profit to other parcels in the area. I think his best argument would have to be that, unlike with a typical rezoning, which has a broad public purpose and applies equally to a number of property holders, this is a quasi-spot rezoning that is disproportionately benefits individual property owners (SL Green) at the expense of others (Penson), with only an incidental public benefit. I don't buy that argument for a second and don't think a court will either, but it's the only case I can see him making.
Apologies to forumers who are completely bored by legalistic stuff.
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