W'Burg Builders Sue, Say Rezoning Like Eminent Domain

Carlos bought his property thirty or more years ago. He will make plenty of money even under the new zoning.

Posted by: guest at April 2, 2008 9:44 AM

I lost about 800 sqft (R6 to R6B) while others have gained (R6 to R6A).

"The only difference is, eminent domain is targeted against a specific homeowner and the government is required to compensate you for the loss at some sort of market rate," he said. "Whereas in zoning … there's no requirement for compensation and a very limited requirement for notice."

Agreed.

Why not at least lower our property taxes after taking something from us?

Posted by: guest at April 2, 2008 9:46 AM

good luck with that - not a hope in hell of them winning that suit.

Posted by: guest at April 2, 2008 9:48 AM

No matter. They do have a point. I know Brownstoner community is a big critic of emminent domain (or is at least since AY) - and a big proponent of down-zoning but
it is true in emminent domain you receive a fair price ( or even much better) but downzoning you just loose value.
(or if you are upzoned - you hit bonanza).

Posted by: guest at April 2, 2008 9:48 AM

It really depends. ED can be used for the greater good or private profits. DZ can be for the greater good as well or simply to appease NIMBYs while disregarding the city's long term growth.

Posted by: guest at April 2, 2008 10:34 AM

From the looks of it, Carlos has a foundation poured and is working on upper stories. So he's vested.

Posted by: guest at April 2, 2008 10:44 AM

It's not poured all the way, so he's not "vested." He didn't have time to do it safely with the zoning passing in only three months. And why should it matter if he bought the property 30 years ago? If he took out mortgages to pay for the planning and work that went into the project? How would you like if someone else who has never done your job came into your work and said you should earn less, or even lose money. Do you think they have the right to tell you what "plenty of money" is? You don't know his financial situation, or that of the other property owners who were affected, you just know that you don't like tall buildings and that's more important than someone elses' livlihood or personal property rights.

Posted by: guest at April 2, 2008 10:58 AM

Whether Carlos is going to make any money is irrelevant. That is argumentum ad hominem. I don't care if you are pro- or anti-development but at least keep the discussion squarely on the issue.

Posted by: guest at April 2, 2008 11:01 AM

I can see both sides of this. I can see homeowners and smaller developers being blind-sided by this and upset by the lack of notice and discussion. But it also appears that a lot of the larger developers knew about the proposed downzoning in a few months and were racing against the clock to get all their foundations done and signed off on before that date. And that cannot be safe at all.

Posted by: guest at April 2, 2008 11:05 AM

Why wouldn't it be the other way around? Why wouldn't it be that the anti-height people raced the downzoning in three months to beat the developers pouring the foundations? And if the larger developers "knew" about it, then the smaller ones should have, too. If there are changes being made to your property, especially substantial reductions in the value of your property (to suit someone elses' taste that lives blocks away), you should be SERVED with notice so you can contest it. It shouldn't be left up to "through the grapevine" or seeing a notice posted on a website, blog or telephone poll. At least there should be a change in law on that.

Posted by: guest at April 2, 2008 11:24 AM

"Fairness" is never the issue. The issue in eminent domain cases is whether one's property is taken without due process of law. Here, there isn't a taking at all. (There's no plausible argument that this rezoning would amount to a "regulatory taking," which would require the restrictions to be so severe that the benefits of property ownserhip are effectievly negated.) It's true that zoning affects more people than eminent domain, but it doesn't affect them in any way that the law sufficinetly cares about since no fundamental right is impinged. As long as whatever governmental body approved this followed its rules and can point to a rational basis for its decision (which is an incredibly weak test), any suit would be completely without merit.

Posted by: guest at April 2, 2008 12:08 PM

"it also appears that a lot of the larger developers knew about the proposed downzoning in a few months and were racing against the clock to get all their foundations done and signed off on before that date."

They didn't get sufficient notice at all. Regardless, no matter how much advance warning whether 1 week or 1 year, there MUST be a forum in which ALL property owners can participate in the debate. This isn't a feudal system. There isn't supposed to be an elite group with a very narrow set of concerns who decides everything for all property owners. And what about renters in the neighborhood hoping to purchase a condo in one of these completed buildings because they can't afford an entire house? They are part of the community too, with their own set of needs.

Posted by: guest at April 2, 2008 12:09 PM

This is all that communities can try to do because the city refuses to enforce regulation.

Same with all things in the city:

something is viewed as profitable, more and more people start doing it (people who really don't have the ability to do it properly), the public starts to suffer, the city steps in with a draconian measure that stifles the industry instead of providing for the proper regulation that they should have from the start.

Posted by: guest at April 2, 2008 12:37 PM

These people need to understand that while this downzoning does decrease their property value, it is nothing in comparison to what the 421a change will do to value. That is really the major issue here. The change in height limitation only affects very large lots. The .2 of FAR that is being lost on the smaller lots will have a relatively small impact compared to the 421a change.

Posted by: guest at April 2, 2008 12:38 PM

The real issue is how disturbingly exclusive the whole process was and that the city is okay with that.

From the piece in The Real Deal:
"The filing claims that Community Board 1 voted on the rezoning in an emergency session called immediately after the January hearing without directly notifying the affected property owners. The petition alleges that the board's agenda for the meeting didn't mention the issue, and that a misleading notice of the hearing was passed out to pedestrians for only one hour in the middle of the day.
Phillips said he has met with about 100 property owners over the past few weeks, and claimed that none had known of the community board meeting in advance."

That is messed up. I hope these property owners bringing the lawsuit against the city stick with it and take it all the way. Oh and nice way for the homeowners who consciously shoved this through without alerting others in the neighborhood, to show how very little regard they have for their fellow residents. How neighborly and respectful of them!

Posted by: guest at April 2, 2008 12:58 PM

I've looked into some of the issues quoted by 12:58 in another context. I found nothing that required a community board to notify the affected property owners. And, the state Public Officers Law is silent on the issue of agendas. 12:58 may be correct when stating, "That is messed up." But it may very well not be illegal, which is what a lawsuit hopes to prove.

Posted by: guest at April 2, 2008 1:04 PM

Whether it's legal to do it and it's proper to do it are two different things.

Really glad I don't live in Williamsburg.

Posted by: guest at April 2, 2008 1:29 PM

Of course a downzoning is like ED, and as stated above with no just compensation (and no individual property owner due process).

BUT you will never hear a peep out of all the so called "property right" advocates like DDDB and other NIMBY groups because they are FRAUDS - they dont care about property rights AT ALL, they only care about their own anti-development agenda. THATS IT. If they could use ED to stop projects they'd be 4square in favor of unlimited ED.

That is the reason why (until unrelated market forces and a ridiculous judicial process) the anti-AY folks got nowhere - because they have no intellectual honesty - they just throw any argument they can think of up and see what sticks.

Thats at least why I respect the NY Sun (even if I don't agree) - they are honestly conservative - they are against ED as well as all the equivalent "takings" done in the name of zoning.

Posted by: guest at April 2, 2008 1:32 PM

10:58 - What proportion of the foundation has been poured? In the Fourth Avenue and other rezonings, BSA had some pretty loose definitions of "substantial completion" (as Brownstoner has documented here http://www.brownstoner.com/brownstoner/archives/2006/08/xmas_comes_earl.php and http://www.brownstoner.com/brownstoner/archives/2006/06/bsa_makes_a_moc.php) just for starters.

12:58 - The rezoning was on the Community Board's public hearing agenda for January. City planning made a long presentation, and everyone there was allowed to ask questions. There was public testimony (pro and con, but overwhelmingly pro). And there were "developers" there (not just for the tower), who also did nothing (until the very last minute) to alert their neighbors. They too must have little regard for their fellow residents, no?

I think its more messed up that City Planning is not required to notify property owners. They are the agency undertaking the action, not the community board. The CB and the boro prez have an advisory role in the review process, but they are reviewing and commenting on city planning's proposed action. That's the way it is with any land use action (or any other action that requires CB review, such as liquor licenses, sidewalk cafes, etc.).

Posted by: guest at April 2, 2008 1:36 PM

1:32 - Just this week, DDDB came out against Lopez's Pfizer ED gambit, so I think they are being consistent.

Posted by: guest at April 2, 2008 1:37 PM

No 1:37 - they are being relatively consistent on being against ED (wonder what would happen if the ED was for a park?) but we are talking about a non-ED "taking" - here by way of zoning. DDDB and there brethren are consistently and hypocritically in favor of virtually all such "takings" - as long as it will result in less development

Posted by: guest at April 2, 2008 1:45 PM

No community board that I know of lists "votes" on the public hearing agenda. A lot of boards do all the review and presentation at the committee level, without a presentation by the applicant (city planning in this case).

Posted by: guest at April 2, 2008 1:47 PM

Sorry, I misunderstood what you were saying 1:32. For what its worth, zoning is more akin to takings for a park or other benefit to the public at large. I do object to the use of ED to advance private development (as at AY, Kelo, etc.) And, of course, zoning is not a complete taking (neither is landmarking, for instance), so it is very different from ED.

1:37

Posted by: guest at April 2, 2008 1:51 PM

1:47 here. I meant to say without a presentation by the applicant to the full community board at a public hearing. The applicant does present to the committee at a public meeting.

Posted by: guest at April 2, 2008 1:54 PM

ED simply for private development is prohibited - it is only permitted to convey a legitimate "Public benefit" - of course the ultimate (and often subjective) definition of what is a "public benefit" is the $100,000,0000 question.

And ED is not a "complete taking" either - you must be justly compensated (which one does not receive in a taking like a downzoning)

Posted by: guest at April 2, 2008 2:05 PM

This is Nimby through and through... No reason for the down-zoning at all. The area is so convenient to all of Manhattan via 2 different trains that are only one stop away. The people of the city deserve the housing.

As an owner of a very large condo, it does in theory increase the value of my property by limiting supply, but I find this down zoning to be unethical and illegal, and cannot support.

Loathe this sort of thinking.

Posted by: guest at April 2, 2008 2:34 PM

The Supremes have defined "public benefit" pretty far down, in my opinion. Kelo was a public taking for a private development; the "benefit" was an increased tax base. In other words, there no longer needs to be a direct benefit to the public at large, as in a park.

Semantics, maybe, but ED IS a complete taking (the property and all rights to it are taken in their entirety). The compensation is what makes the full taking constitutional. The 5th Amendment "...nor shall private property be taken for public use without just compensation". Also, "just" compensation and "full" compensation are two very different things.

Because zoning is not a complete taking, it does not require compensation to steer clear of 5th Amendment. The zoned property owner loses some, but not all rights. And sometimes, they lose no rights, which raises an interesting question - should we compensate the "losers" from the pockets of the "winners"?

Posted by: guest at April 2, 2008 2:46 PM

Rereading my post (2:46), I guess what Kelo did was to shift the bar from "public use" to "public benefit". The 5th Amendment clearly says public use, and Kelo was not for a public use. But because of issues like increased tax revenues, the court found it to be constitutional.

Posted by: guest at April 2, 2008 2:55 PM

2:55 - I'm not sure that Kelo really made such a monumental shift - plenty of precedent prior was on that side of the fence.

Besides - how can an Arena for mass entertainment not be considered a public use? - Surely it can't all hinge on who owns the deed - remember the NY City Subway system was originally built by private for profit corporations.

I'm sorry but I don't how one can intellectually oppose ED (as broadly as the anti-AY folks do) and yet be in favor of (or not equally oppose) totally uncompensated "takings" of property rights like in a downzoning.

Posted by: guest at April 2, 2008 4:41 PM

I don't understand the logic of the anti-zoning claim here. The property has value ONLY because of its neighbors, NYC's zoning history, NYC's creative and financial industries, etc.

Why should one individual have a right to free-ride on that benefit over the objections of his/her/its neighbors as expressed through the usual political process?

Eminent Domain is a kind of tax -- one person's property taken for the benefit of others. But zoning is just a determination of what your property rights are in the first place. It's no different than the (partial) right to exclude others with police assistance.

This particular zoning rule may or may not make sense-- I don't know the neighborhoods. But the notion that someone has a sacred right to exploit the former zoning law and to be paid for changes is absurd, (unless of course developers intend to pay for upzoning and the city resources on which they freeload).

Posted by: guest at April 2, 2008 5:30 PM

In a "taking" something has to be taken. Nothing was "taken" here. The law changed. How is that different from the market changing?

Posted by: guest at April 2, 2008 5:33 PM

Exactly, 2:34. The downzoning proponents have their homes so they don't care if anybody else gets to buy a place.

Oh and if anyone thinks the downzoning in areas convenient for commuters will be upheld 20 years from now when the population has increased substantially, think again.

Posted by: guest at April 2, 2008 6:23 PM

Thank Goodness that you CLOSE-MINDED Individuals were not around when the Empire State Building, Twin Towers and the like were being built because where would NYC be today?

Posted by: guest at April 2, 2008 9:15 PM

With regard to 12:09 above - Exactly HOW MANY developers got their foundations done in time??? From what I know of NONE did. This whole process was fast-tracked and many small developers (regular home owners looking to improve a neighborhood full of vacant lots) got screwed in the process.

Posted by: guest at April 2, 2008 9:22 PM

There does seem to be a lot of ad hominem here.

I think this is all just buyers remorse with the down-zoning. I've followed the "process" pretty closely over here in Carrol Gardens and the neighbors are stumbling all over themselves to down-zone. Afraid of something terrible that they are not sure what it is. A few "preservationists" have talked them into "saving the context of the community". They have absolutely no idea they are losing property value. Sometimes, when confronted with the reality they accuse any opponents of being "greedy" and "drinking Ratners kool-aid".

A lot has already been lost to down-zoning and the surviving industrial area landlords know that if they can keep their buildings empty of workers long enough they can have their building turned residential making them a gazillion. Thats the flip side of the down-zoning. It squeezes property values out of one area and it flows to another area. Ironically the real speculators have been buying up the industrial property for years and are actually happy the downzoning is going down. They are over in the M zones waiting for a "swap" like they did in south Park Slope.

The owners of the small frame houses in the South Slope really got snookered by the "community activists". Upzoning made a gazillion along 4th Ave, drove out the manufacturers and the small houses up the hill had their property values castrated.

Now that the business cycle is kicking the real estate market in the ass there won't be any need for down-zoning. Once it is down it will be very difficult to get it back up. Worse with the industrial areas "foremen says these jobs are going and they ain't coming back".

Posted by: guest at April 2, 2008 10:28 PM

these people only care about making a quick buck. Don't even try to compare the building which will go up with the empire state building... It'll either be an ugly glass structure or another fedders building.

Posted by: guest at April 3, 2008 2:20 AM

To 2:20 - These "People" are mostly hardworking people and not "Big Developers" who want to beautify Williamsburg and rid it of an abundance of abandoned lots which have only become unsightly parking lots. They are getting caught in the wash with these larger developers as it is not cost effective for them to build unless they can have specific square footage. The larger developers don't really care in the end as they will build anything possible and can afford to.

One Question - Are you even a homeowner that could be impacted by this ruling?

Posted by: guest at April 3, 2008 8:25 AM

As a senior citizen who was born and raised in Williamsburg it is terrible that there is all of this fighting with the size of buildings. Do these people own property? Probably no. So why all the fuss? The small people building five story buildings are only trying to make Williamsburg beautiful. Is there a law against this? From what I am seeing, there is a Judas among this group. Why would some people know about the city council hearing on 3/26 and others found out by accident? Why are some people interested in what other people will make? Is it jealousy? From what I read in the article with Mr. Isdith and his son John, Mr. Isdith is a current property owner who is paying to have his building built. He is not a big developer and he does have to pay his bills.

Posted by: guest at April 3, 2008 9:27 AM

I agree with the senior who was raised in Williamsburg. There does seem to be something smelly with this situation. Who is the Judas? Believe me, it will come out in the end. Too bad so many people are jealous of the ones who are trying to make it better for "EVERYONE".

Posted by: guest at April 4, 2008 1:05 PM