I was very disappointed to learn that last year’s Building Brooklyn Awards did not include a single North Brooklyn project. Given the sheer volume of new construction in Williamsburg and Greenpoint, you would think that there was at least one decent new building. But alas, no – North Brooklyn was shut out in 2007 (as we were in 2006, 2005, 2004, 2003, 2002, 2001 – remarkable, eh?1).

But its a new year, and hope springs eternal. So imagine my excitement when I read that the Brooklyn Chamber of Commerce is accepting nominations for the 2008 Building Brooklyn Awards. Surely this will be our year.

The contest regulations require that a project have a temporary or final CO issued in calendar 2007. So such favorites as 20 Bayard, North8 Condos, 207-211 South First Street and the Lucent are eligible. Others, in that grand Brooklyn tradition, will have to wait until next year. Oh, and I suspect someone will be submitting a nomination for a lifetime achievement award to a certain local developer.

The deadline for submissions is 15 February 2008; I’ll be accepting nominations in comments.

Remember – vote early and vote often.

1. To be fair, a number of North Brooklyn rehabilitation projects won awards, including 37 Greenpoint Avenue, a GMDC project and the Smith Gray Building, Kay Development/Scarano Architects (both in 2003); the Doe Fund project, Santoriello & Groom Architects (2004); and the Williamsburgh Branch Library renovation, Vincent Benic Architect/Westerman Construction (2005).↩

Original photo: Gowanus Lounge

The New York Water Taxi notified its customers today that is suspending East River service effective 1 January 2008. Commuter service will not resume until 1 May 2008.

In a flyer handed out to patrons this evening, NYWT cited noted that it “broke even during the spring, summer and fall when tourist used the commuter service for sightseeing” (the first time they’ve ever broken even). With ridership generally dropping 30% in the winter months, and the cost of fuel having doubled this past year, though, NYWT says it can no longer afford the operating losses.

The water taxi is expensive and only really convenient to a relatively small number of North Brooklyn residents, but it is a very civilized way to commute to and from midtown or lower Manhattan. And the rides in the winter are particularly enjoyable, in part because it is less crowded (not that its ever really that crowded), and in part because you get to see the city at night from the river. For those of use who do use the water taxi, this news certainly sucks.

I don’t live in Schaefer Landing, but I imagine this news sucks even more for residents of that development (and others in Hunters Point, which is also served by the water taxi). Particularly for those who bought into the project because of the water taxi and the easy commute to Wall Street. Its a long walk to the J train, and an even longer walk to the L.

But this news truly sucks for the deck hands and other employees of New York Water Taxi, who just got a big lump of coal in their Christmas stocking.

From a practical point of view, ferries and water taxis are of limited appeal to most commuters. They are expensive ($5 each way from Schaefer to Wall Street), and unless you live and work near the waterfront, require another $2 for a subway or bus. The service will hopefully do better when it opens stops at Northside Piers and Domino, but that’s a ways off. The City could make the water taxi a bit more appealing by providing subsidies, or by providing MetroCard transfers to eliminate the double fare hit. Anything that gets people off the L train and into the city without using a car seems to me to be a public benefit.

UPDATE: CityRoom has more information on the closing.

Photo: sps

The Landmarks Preservation Commission officially designated [pdf] the Dumbo historic today. Coming in the final LPC hearing of the year, this closes out what has turned out to be a banner year for the oft-maligned industrial heritage of the city. In addition to this designation, LPC has also designated the Domino Sugar Refinery, the Eberhard Faber Pencil Factory Historic District, the Standard Varnish Works Factory Building [pdf] (SI) and the Sohmer & Co. Piano Factory (Queens). Add to this the National Trust’s designation of the Brooklyn Waterfront as one of the nation’s 11 most endangered historic resources, and it was not a bad year at all for our industrial heritage.

Still, there are some enlightened souls who just don’t get it. For instance, this commenter on the Dumbo designation thread at Brownstoner:

when landmarking first started it was to save architecturally unique and interesting buildings and architecturally beautiful buildings. now it has become the protection of buildings just because they’re old. Dumbo has old buildings – buildings built in the late 1800s and early 1900s. can anyone point to any one building in Dumbo and explain what’s so unique or beautiful about them [sic] beyond [sic]? they’re nothing like the beautiful brownstones of Brooklyn Heights or Greenwich Village. they’re old factory buildings. they weren’t even built to be architecturally significant or interesting – just practical factories. all I have ever heard is that people in the neighborhood don’t want more J Condos. the prevention of new tall “ugly” buildings is not the same as protection of old buildings.

Well – there’s not a lot of love here for Dumbo, nor, by extension, anything that isn’t “beautiful” in the eye of the beholder. Lets take this one step at a time.

The commenter (lets call him “Guest 3:51”) starts out on pretty solid footing by saying that landmarking was intended to “save architecturally unique and interesting buildings”. Unfortunately he (for the sake of this discussion) ends the sentence with this fallacy: “and architecturally beautiful buildings”. There is nothing in the enabling legislation of the Landmarks Preservation Commission that talks about “beautiful buildings”. “Beauty”, “pretty”, “nice” – they are all words you do not find in Section 25-302: Definitions of the New York City Administrative Code. In fact, these words don’t appear anywhere in Chapter 3 (Landmarks Preservation and Historic Districts) of Title 25 (Land Use) of the Administrative Code.1

The Administrative Code is the only place where landmarks are legally defined. This is how a landmark is defined in Section 25-302 of Title 25:

Any improvement, any part of which is thirty years old or older, which has a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation, and which has been designated as a landmark pursuant to the provisions of this chapter.

Pretty broad, no? Nowhere does the concept of beauty enter into equation. The closest one can get is the phrase “aesthetic interest”, but that’s not the same as “beautiful”.

So what did the Landmarks Commission find so compelling about Dumbo? Perhaps they found it beautiful (I do, but that’s besides the point), but that is not a reason (in the legal sense) to designate a historic district. Again, lets consult the law, which tells us that a historic district is:

any area which […] contains improvements which: (a) have a special character or special historical or aesthetic interest or value; and (b) represent one or more periods or styles of architecture typical of one or more eras in the history of the city; and (c) cause such area, by reason of such factors, to constitute a distinct section of the city…

Clearly, whether you find the neighborhood beautiful or not, Dumbo constitutes a distinct area of the city that has a special character, a special historical interest, and, I would argue, a special aesthetic interest or value. That, and the fact that it represents one or more periods or styles of architecture, clearly qualifies Dumbo to be a historic district.

Photo: DropFocus

Quite simply, it does not have to be beautiful. It has to be a lot of things to be a landmark district, but it does not have to be beautiful.

Guest 3:51 goes on to say “now it has become the protection of buildings just because they’re old. Dumbo has old buildings – buildings built in the late 1800s and early 1900s. can anyone point to any one building in Dumbo and explain what’s so unique or beautiful about them [sic] beyond [sic]?” No – its not “just because they are old”. It is because Dumbo has a special character and a special historical interest. Or, to use an overused phrase, because Dumbo has a sense of place. The Landmarks Commission has determined that that sense of place is significant, and that preserving that sense of place is in the larger interest of the City. Perhaps there are no individual buildings in the Dumbo historic that are so unique or beautiful that they should be individual landmarks, but that is not the point.2 The sum of the parts adds up to a distinct area of the city that has a special character and a special historic and aesthetic interest.

I’m sure there are those who would say of the recently designated Sunnyside Historic District “can anyone point to any one building in [Sunnyside] and explain what’s so unique or beautiful about them” (some of those people live there, in fact). And the question more validity when applied to Sunnyside – a planned development of architecturally homogenous buildings – than it does to Dumbo. But again, that is not the point. Sunnyside, like most of Dumbo (and like most of Soho, Noho and Tribeca) merits designation as a district because it has that elusive “sense of place” quality.

Guest 3:51 digs the hole deeper when he says: “[the buildings of Dumbo are] nothing like the beautiful brownstones of Brooklyn Heights or Greenwich Village”. Lets think about the hallowed brownstone for a second – sure it is a nice enough building type, but it is also pretty ubiquitous. The brownstone districts – and I would not call Brooklyn Heights or Greenwich Village brownstone districts3 – are significant, again, for their sense of place, not because any one building or collection of buildings is beautiful. Like Dumbo, they comprise distinct areas of the city that have a special character and a special historic or aesthetic interest. Certainly, the city has designated enough brownstones, and, if they were to be judged as individual buildings, would not need to designate any more. But individual beauty is not the criteria that is applied to Park Slope or the Upper West Side; nor should it be applied to Dumbo or Soho. All of these are neighborhoods that rise to the level of a special sense of place worthy of protection.

Then we get to the ugly utilitarian building canard: “they’re old factory buildings. they weren’t even built to be architecturally significant or interesting – just practical factories.” Well, no. Today we build functional factory buildings with little regard for aesthetics (not at all unlike the way we build our residential buildings). But in the late 19th and early 20th centuries that was absolutely not the case. Yes, many industrial buildings were utilitarian in nature. But they were still decorated boxes that usually reflected the prevailing architectural style. (Are brownstones really that different? Aren’t they simply facades (brick facades, at that) decorated with stone trim?) In Dumbo, we see a wonderful juxtaposition of the decorative and the utilitarian, played out in evolving architectural styles and building materials. Many of these buildings were designed to make a statement – they were advertisements for the companies that built them, and were used as such in letterheads and advertisements. Certainly they were built for utility – they had to function, first and foremost – but beyond that there was clearly and effort on the part of owner and designer to strive for the other two Vitruvean ideals: durability and beauty.

Photo: NewYorkDailyPhoto.com

Unlike brownstones, the reinforced concrete buildings of Dumbo represent an important advance in building technology, further emphasizing their historical significance. The material itself allowed more efficient and more open buildings in an era before efficient interior lighting. And the designers of the buildings clearly struggled to both find a new aesthetic for this new material (viz, the Austin, Nichols Warehouse) and to anchor the material in the past (Gair No. 6, or the former Dutch Mustard Company building, for instance). This is just one aspect of the special historic character of the district that LPC recognized today.

Landmarks has applied the same standards to individual landmark designations. Again, it is all subjective, but recall that Councilmember Simcha Felder called the Austin, Nichols Warehouse a “piece of trash“. Never mind that it was Louis Kestenbaum’s years of shoddy maintenance that most contributed to the worn appearance of the building.4 The fact is that that building, like so many other industrial buildings of that era, was designed (by one of the preëminent American architects) with a sense of monumentality, proportion and, yes, beauty in mind.

Guest 3:51 ends his post with another common refrain: “all I have ever heard is that people in the neighborhood don’t want more J Condos. the prevention of new tall “ugly” buildings is not the same as protection of old buildings.” Here, he has a point. Yes, landmarking is used to thwart development and stop ugly (and out of context buildings). Soho, when it was designated, was threatened with the Cross Manhattan Expressway. The role of the Landmarks Commission, though, is to apply the broad and subjective standards granted to it in the city charter, not as a tool for stopping development, but as a means of protecting that which has a “special character or special historical or aesthetic interest or value”. The sad fact is many city residents don’t think about their surroundings and what does (and does not) have that certain sense of place. Combine that with an understaffed Landmarks Commission that is rarely in a position to act proactively, and you have a process that is continually reacting to threats.

The bottom line, of course, is that beauty is in the eye of the beholder. Guest 3:51 is well within his rights to say that the buildings of Dumbo are not beautiful. But he misses the point entirely when he extrapolates his sense of the beautiful to the designation of a historic district. Because beauty is not in the Landmarks law. And it doesn’t belong there.

1 The Administrative Code can be found here. Its all encoded in Java, so I can’t link directly, but follow the directory path to Administrative Code Home->Title 25: Land Use->Chapter 3: Landmarks Preservation and Historic Districts.↩

2 Its also not true – off the top of my head, 1 Main Street, to name just one building, probably rises to the level of an individual landmark. I’m sure there are others.↩

3 Brooklyn Heights and Greenwich Village, the two earliest district designations, largely predate the brown decades of the post-Civil War era. What gives these neighborhoods their special character is their diversity of building styles and materials, and their unusual physical layout. They are, to my mind, the most wonderful districts in the city.↩

4 LPC Commissioner Gratz, in a different case, was right to note that the Commission should stand up and designate buildings that retain less than their full integrity. Particularly when that lack of integrity has come about as a result of prophylactic demolition – intentionally demolishing architecturally significant parts of a building in order to thwart a landmarks designation.↩

I just learned that the BSA has approved the application to resume construction at 144 North 8th Street (the Finger Building). BSA’s decision was based on a letter from DOB Deputy Counsel Felicia Miller, stating in part:

the permit issued in connection with Job # 301784399 for a 16 story building was a validly issued permit. We understand further that there is pending litigation regarding the applicant’s right to use roof top space at 115 Berry and 138 North 8th Street, as reflected in the plans. If they should loose that litigation, then the applicant will be in violation of open space requirements to the extent they decide to continue with construction beyond 10 stories. For this reason, there is a stop work Order in place for construction beyond 10 stories

144 North 8th Street (aka The Finger Building)
Photo: A Test of Will

The building permit for 144 North 8th, issued prior to the 2005 waterfront rezoning, expired in May, 2007 (two years after the enactment of the rezoning). Today’s BSA decision allows construction to proceed on the entire project. However, the pending litigation of which Miller speaks precludes any construction above the 10th story.

Here’s the kicker: for more than two years now local residents have wanted to sue to stop this project. Such a suit would have to be brought before BSA, and would be based on the fact that the building plans were not valid when approved (via self certification by Scarano Architects). But the neighbors can’t bring a case in front of BSA until DOB issues a “final determination” that the permit is valid. Now, one would think that a letter from a Deputy Counsel at DOB to the BSA – the very letter upon which BSA is basing its decision to allow the project to go forward – would constitute a “final determination”.

But it doesn’t.

According to DOB, a final certification can only come from the Brooklyn Borough Commissioner. Until such a determination is made, the public can’t challenge the validity of the permit in front of BSA. However, BSA is free to allow the permit to be renewed based on a not-so-final determination of the validity of the original permit by a DOB deputy counsel.

And the Deputy Counsel Borough Commissioner has, for over two years now, refused to issue such a determination.

Runs rings around you logically, eh?

When I linked to TRE’s Karl Fisher interview a few days ago, I said:

unfortunately, with the exception of 20 Bayard Street, just about every Fischer project is a box devoid of curved lines, angled lines, and, dare we say it, flair; which is probably for the better, as 20 Bayard is the worst of the opus

Photo: Curbed

When I wrote that, I hadn’t seen the base of the building since the sidewalk bridge came down. Today, Curbed posted this picture, and I have to say that I was wrong – I went way too easy on 20 Bayard. This is one of the ugliest things I have seen in ages – a senseless mashup of bad corporate park architecture and bad junior high school architecture. I can only assume that there is a cafeteria at that second floor apsis (and that it too sucks).

There is also a high degree of ridiculousness here (beyond the obvious ridiculousness of that central paired column with the metal collar). I mean M. C. Escher couldn’t find his way into this building. There’s a central stair leading to two sweeping stairs up to the second level, what looks like a secret portal between the two “columns” straight ahead, and two flanking stairs that look they’re townhouse entries. How the hell do you get into this place? Better yet, how do you get in if you’re wheelchair bound?? If the answer is a chair lift, Karl Fisher deserves to lose his license to practice architecture in polite society – chair lifts should be a last resort in rehab projects. (And if the answer is some at-grade entry off to the side somewhere, the Mayor’s Office for People with Disabilities should slap a huge-ass fine on this project for violating the spirit, if not the letter, of Local Law 58.)

The good news is that 227 Grand Street was going to be demolished anyhow. Unfortunately, gravity reared its ugly head before the demo crew could get to that end of the building.

This is all part of the Gandar’s demolition at the corner of Grand and Driggs (where a 14-story condo is proposed – that’s the former Stinger Club at the far right of the photo). The building in question was a three-story flat house, constructed in the mid-19th century. In all likelihood, the failure of this wall was related to vibrations caused by the ongoing demolition, as well as the demo itself. But its also very likely that the side wall was compromised years ago, as it is a former party wall that was never intended to be exposed to the elements. As we recall, the building next door was demolished about four or five years ago.

A stop work order has been issued on this project (for an expired permit, not as a result of this wall failure). According to our friends on the block (who took these photos today), workers have been busy on the site for the past few days. And they weren’t doing “emergency” repairs to keep this wall standing and ensure the public safety.

The Oberserver reported today that DOB fatalities and accidents resulting in injury are down for the year to date. That is good news, indeed (though as the Commissioner herself reminds us, one fatality is one too many).

Before everyone declares victory, let’s keep in mind that the data sets are pretty small. Scaffold fatalities, for instance, fell from 6 in 2006 to 1 in 2007 (all figures are YTD), or 83%; scaffold injuries fell from 17 to 11, or 35%1. Construction-related fatalities fell from 14 to 8, or 43%; but construction-related injuries only fell from 105 to 104, or less than 1%. And citywide, accidents on high-rise construction sites rose by 83% (from 23 to 42), while accidents on low-rise sites fell 23% (66 to 51).2

For the most part, DOB’s powerpoint presentation (warning: PDF) does not provide much in the way of apples to apples to data. For instance, fatalities are down, but what are the comparisons on a per job or per worker unit basis? They do report the total number of high-rise and low-rise construction projects for YTD 2007. From that, we can learn that the rate of accidents per high-rise project rose by 65% (vs. the 83% rise the overall number of accidents) – still an unacceptable number, but at least a number that takes into account the number of project sites active in a given period. Similarly, the rate of accidents on low-rise sites has fallen a rather remarkable 43% (a combination of a 31% increase in the number of low-rise construction sites and the 23% decrease in accidents). That 43% decrease, in statistical terms, is probably a lot more meaningful than the reported 43% decrease in construction-related fatalities.3

Beyond this year-over-year comparison of 2006 to 2007, DOB does not provide any trend data. What are the comparable fatality, injury and accident rates going back 10 years? Was 2006 an anomaly? 2007?

Also missing from the report card are any data on crucial areas of DOB deficiency in recent years. How are we doing on stopping damage to neighboring buildings?4 What are the trend figures in the numbers of complaints, inspections, stop work orders, etc.?

1. The number of scaffold injuries, and construction-related injuries in general, is probably woefully underreported. Still, I’m sure that was the case in 2006 as in 2007, so all we can compare is what was reported.↩

2. Again, I would suspect massive underreporting, particularly on low-rise sites, which tend to be non-union (union sites are much more likely to report even minor accidents).↩

3. If you are doubting my skepticism in notes 1 and 2, above, take a closer look at the numbers in this last paragraph. Citywide, there were 202 active high-rise construction sites in 2007, and 4,126 active low-rise construction sites. But despite representing just 4.67% of the city’s overall construction activity, these 202 high-rise sites accounted for a whopping 45.2% of all construction accidents citywide. If that were true – and it isn’t – the city would be best served by shutting down every high-rise construction site.↩

4.DOB does report 335 inspections by the Excavation Safety Team, resulting in 153 stopped jobs. This, too, is a good thing. And based on anecdotal evidence, I do suspect the number of catastrophic accidents affecting neighboring properties is down, but DOB provides no data to support this assumption.↩

The Department of Education released its schools report card today. By and large, the local schools fared very well, almost without exception earning strong As and Bs. The one exception is the much-maligned PS 84 (Jose de Diego), which lives up to its reputation with a D. 84 has been the subject of a nasty fight between one group of parents (generally newer residents) pushing for a “progressive” curriculum and another group parents (generally older residents) and the teachers favoring “traditional” education approaches. Based on this report card, it looks someone needs to focus on basic quality, pedagogy be damned. Unfortunately, this will probably not convince the traditionalists and teachers that change is needed, and its also going to do nothing to stem the tide of progressives to private or out of district schools (including 132).

From the Times:

A “not insignificant number” of those F schools, and even some of the 99 schools that received D’s, could be closed or have their principals removed as soon as this school year, Mr. Bloomberg said at a news conference announcing the grades. He added: “Is this a wake-up call for the people who work there? You betcha.”

Here’s the local rundown (by no means comprehensive, I’m sure I missed some):

PS 13 (Roberto Clemente, S3 & Keap) B
PS 17 (Henry Woodworth, N5 & Driggs) B

PS 18 (Edward Bush, Maujer & Leonard) A

PS 31 (Samuel Dupont, Meserole & Guernsey) A

PS 34 (Oliver Perry, Norman & Eckford) A
PS 110 (The Monitor, Driggs & Monitor) B

PS 132 (Conselyea, Manhattan & Metro) A
PS 184 (Jose de Diego, S1 & Berry) D
PS 250 (George Lindsey, Montrose & Manhattan) B

JHS 50 (John Wells, S3 & Roebling) A
JHS 126 (John Ericsson, Leonard & Bayard) D

El Puente Academy HS (S4 & Roebling) B
Automotive HS (Bedford at McCarren) “under review”

Harry van Arsdale HS (N5 & Roebling) does not appear on the list that I can see (it may show up as a series of mini schools).

Some caveats: The rankings appear to weight very heavily performance on standardized tests, which is different than academic achievement; they also give weight to schools that have shown year over year improvement. The grading was on a curve, so 60% of the schools received As or Bs (50 received Fs, and 99 received Ds).

I am a big fan of Brownstoner and the community he has created on his blog, and usually I am in tune with his thinking on issues of development, design and so on. Today, though, he has staked out a position on the question of eminent domain that is, quite simply, off base. Writing about the City’s negotiations for property in the Bushwick Inlet area for a future city park, Brownstoner takes the position that eminent domain is wrong. Period. I’ll admit that I am not very close to the Atlantic Yards imbroglio, but I think even the opponents of that project have staked out a more nuanced position against eminent domain abuse, not eminent domain per se. With regard to the Bushwick Inlet and eminent domain, Brownstoner is wrong on both the specifics and the larger philosophical/consitutional points. Here’s why.

On the specifics of Bushwick Inlet, Brownstoner was responding to the same issue (though via a different article) I cited a couple of days back. There, attorneys for some of the owner’s were saying that the City was underpaying them for their property, and citing market rates of $100 to $200 per buildable square foot.1 All well and good, but as I pointed out before, these properties are zoned for park use. Unless you are building a park, a price per buildable square foot is meaningless. Yes, there are grandfathered uses on these properties, but they are manufacturing uses (heavy manufacturing uses), that do not command hundreds of dollars per buildable square foot. Basically, there is no FAR here – the attorney’s are simply trying to run up the tab at the taxpayers expense.

So even if the market rate was $200 per buildable square foot, $200 x 0 is still 0. Which is not to say that the property is worthless, or that the owners should get nothing (or even get shafted for the public good). But the property is zoned for park use, and grandfathered as heavy industrial use. The owners should be compensated on that basis, and not expect a windfall. Is it fair that owners to the north and south got a windfall from the rezoning? Maybe not, but that windfall (or lack thereof) was the result of a multi-year rezoning that went through a massive environmental impact study, years of community review and approvals from the Borough President, City Planning Commission, the City Council and the Mayor.2

There is also the issue of cleanup – both the CitiStorage site and the Bayside Fuel Oil site are heavily contaminated, and will require millions of dollars of remediation. So even if there is an as-of-right residential use, the brownfield costs on these properties are so high as to vastly diminish the market price per buildable square foot. To my way of thinking, CitiStorage, to take an example, should be compensated at market rates for the cost of their (highly contaminated park) land and made whole for the cost of relocating their business. But we should not pretend that they have some right to compensation on the basis of a residential use, when no such use exists.

What about eminent domain in general – isn’t that a “bad thing”? The Fifth Amendment of the Constitution has a clause that prohibits the government from taking a person’s property without just compensation (“nor shall private property be taken for public use, without just compensation“). The Fifth Amendment does not prohibit takings, only undue takings without compensation3. The Constitution, and subsequent Supreme Court interpretations, have recognized that some takings are in the public interest.

Some takings do not even require compensation – the public benefit in regulatory takings is deemed so great that the value to the many is found to outweigh any detriment to the few. These takings, which I suspect are near and dear to Brownstoner’s heart, fall under this category. Zoning, for one, greatly limits the use to which an owner can put his or her property. Because of zoning (a 20th Century construct not envisioned by the framers), I do not have an inalienable right to put my horse rendering factory next to your McMansion. I also do not have an inalienable right to build an 80-story tower next to that same three-story McMansion. In the case of zoning, the Constitution and the Supreme Court have recognized a public benefit in limiting what an owner can do with his or her property.

Likewise, historic designations greatly limit the ability of a property owner to alter his or her property. Again, the Supreme Court has recognized that there is a public good here – the community benefit is great enough to justify the real harm to individual property rights inherent in the regulatory action. (In New York City, this not only results in restrictions to what one can do with their property, it also results in the only meaningful design review for new construction and alterations.)

Eminent domain is obviously different from zoning or historic designation. In the latter, the state is taking a part of the property owner’s rights; in the former, the state is taking everything. The Constitution has an answer for that – just compensation. Assuming that there is a public use, the state has the right to take your property if the state provides just compensation. Now there are two fundamental questions here – what is a public use, and what is just compensation? Unfortunately, in the now-infamous Kelo case4, the Supreme Court has vastly expanded the notion of public use – essentially substituting “public benefit” for “public use”. It is no longer a park or an overpass; public use can now be the increased tax revenues that would result from a private entity obtaining a property and introducing a new, more intensive (and higher tax yielding) use. Essentially, the government now has free rein to acquire private property on behalf of other private entities, with only a tangential public use.

Still, even assuming a public use (under the broad or narrow definition), the second question is the issue of just compensation. That is a question that is usually decided by the courts, in this case, weighing (hopefully) all of the issues I discussed above. In the case of the Bushwick Inlet, I’m sure that the City’s opening position is a low one; clearly, the owners’ opening position is unjustifiably high. In the end, the legal process will arrive at a fair (though not necessarily fair market) price.

I suspect (and I certainly hope) that Brownstoner’s positions on eminent domain and the Bushwick Inlet Park are not as dogmatic as they comes across in his post on the subject. Unless you are truly dogmatic and far to the right on the issue, it is hard to argue that there is not a public purpose to some use of eminent domain. The phrase has taken on an ill connotation as the result of many abuses – dating back to Robert Moses and not helped by recent examples such as Kelo and, yes, Atlantic Yards – but the concept of eminent domain is still valid, when properly applied.

1. The article also discusses the Monitor Museum, which is an entirely different issue. There, the Museum is challenging the City to stay on the plot of land that was donated to it (a piece of land that, I believe, was not part of the Continental Iron Works, where the Monitor ironclad was built). I will admit that I am not fully up on the issue, but the Museum is challenging to fight relocation, not the value of the compensation. Hopefully, there will be an agreement reached that will give the community the park it deserves and the Museum the site to which it is entitled.↩

2. And it should be remembered that the creation of this parkland was one of the major public benefits promised as part of the rezoning (together with affordable housing). On a per capita basis, North Brooklyn has far less parkland than the city average, and the addition of tens of thousands of new residential units will only make that worse. Even with the addition of this park, the state park, the waterfront esplanade and the parks at Dupont Street and Manhattan Avenue, we will have less parks and open space than the average New Yorker (by GWAPP’s estimate (warning! – pdf), 1/3 the citywide average on a square foot basis).↩

3.The Fifth Amendment only applied to the Federal government; prior to the Fourteenth Amendment, state governments were free to seize property via eminent domain without compensation.↩

4. This case was based on a challenge by private property owners to the City of New London acquiring property on behalf of private developers through eminent domain. The claimed that the acquisition promised to increase the use of the property and generate greater tax revenues. The Supreme Court, led by the liberal wing, supported the City’s taking of the property through eminent domain.↩

Good news on the housing shortage front: Crain’s New York Business reported yesterday NYC is on pace to issue permits for 34,000 new housing units this year. That would be the highest number of permits since the early 1960s (the last high was 33,084 in 1972). The vast majority of those will be in Brooklyn (permits up 13% over last year) Queens (18% increase); permits have declined in Manhattan, the Bronx and Staten Island.

One reason for the increase in permits is the expiration of generous 421-a tax abatements. In most of Brooklyn and all of Queens, projects that have their foundations vested by 30 June 2008 will qualify for abatements without needing to construct 20% on-site affordable housing. If you’re not vested by then, you will need to construct the affordable housing in order to get the abatement.

In related news, Curbed reported on Monday that Quadriad has been issued permits to pour a foundation for an as-of-right five-story project on North 3rd Street between Bedford and Berry. Because Quadriad wants to build affordable housing, it just doesn’t want to do it using any of the programs that are in place for building affordable housing.