Eminent domain would not be used/was not used in the ESDC conclusion, that’s why I mentioned they’d just be buying out the property and all it’s associated aspects, that is why the state would have to rebuild the arena somewhere else.
Why couldn’t they use ED if Dolan refused to sell?
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That’s a question for the ESDC as I myself can’t answer that/haven’t seen why that wasn’t included in the report/analysis.
I believe it is because MSG has successfully operated as a revenue generating venue, which is one of the stipulations of the use of eminent domain, if the tenant doesn’t want to sell but is generating revenue then eminent domain can’t be used. It is also because MSG is the only venue in the city that has been made to obtain a special operating permit to function. The use of eminent domain to force MSG out simply because their permit is not renewed would not be justifiable use of eminent domain as a number of law firms in the matter have opined on. Because Dolan could still demolish MSG and then build towers over the land to generate significant tax revenue. Which would still leave the station “underground” where it already is.
All of the scenario really kind of circle around each other because they are all a “this has to be done so that this is done so that this can be done” scenario, there are multiple things that have to happen for all the parties involved.
In a similar case, Barclays Center was built using eminent domain by the state (ESDC), because the state’s project approval process was/is easier than the cities’ land use process. It goes back to me saying that it would not be the city involved in rebuilding MSG if it were bought out, it would be the state helping Dolan as the developer to do that and that is where eminent domain would be used by the state and not do buy the land under the current MSG.
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I think that Chused teaches Constitutional law. He would know the intricacies of eminent domain.
I was reacting to an image you posted. If somebody else had posted the same image, I would have replied to them.
As far as being confused, I am actually confused now, because I can’t figure what you were trying to say. If the waterfall proposal is the new design or the old.
But all of this misses the greater point (and understandably not the readers’ fault, given critical context is missing due to my other post getting censored). The point is, NY developers have made this a standard practice: create a pie in the sky proposal, mollify every group in the review process, change up the design a few years later, use cost as an excuse. WTC, Hudson Yards are just two examples of this practice.
I don’t teach Con Law but property and I do know a bit about ED. What are the precise questions?
Oh no no, I understand that 
In my post that you were referencing I was saying I liked the old design (the one that had the plants) but that it would’ve looked better with the waterfall, which is the new ASTM design, because it seems like it would fit better with the color scheme. The waterfall, though it still looks nice, just looks plopped there in the new design. Hope that cleared things up?
As to the generally bulk of your post, I think I can disagree and agree, because cost is definitely a factor more than not rather than an excuse when things get watered down or change, etc. It also comes down to the engineering of things and how they really work out once tests and analysis of designs begins (like wind tunnel tests, facade pressure tests, etc).
Could we expect things to change if either the ASTM proposal or the state’s proposal (which we won’t even know what the final design is until the state chooses one since the FXCollaborative design isn’t the final one) were moving forward? Absolutely, but there are precedent for things that have remained the same throughout the process, like the the building of Moynihan and the reuse of Farley, that remained basically unchanged for the whole project.
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If the city lets the permit expire and thereby, forces MSG to find space for a new arena, couldn’t the city then acquire the MSG site by eminent domain if the Dolans refuse to sell it on the claim that they will redevelop it for offices and hotels?
I suspect it depends on a number of factors, not all of which I know about. First, even if the permit for using MSG expires, who then owns the land? That I suspect is very complex. There are a number of entities that have an interest in Penn Station and the buildings over it that might complicate building a new station. Public entities like the MTA and Amtrak have a stake. So do the lease holders and vendors in the existing Penn Station. Which of those interests would be impacted by construction of a new station? Probably all of them. Some of the non MSG owners’ interests might also need to be taken and used. But the interests of the public entities probably can’t be condemned since they are already publicly owned. They would, however, have to be involved in planning what needs to be condemned. Second, an economic development entity has already been created to work on the area. Might their plans conflict with new station plans and who would have the authority to plan the new project. Third, which public entities have the legal authority to condemn land in this part of Manhattan? The city? Maybe. The state? Maybe. The economic development entity? Maybe. Are the state statutes creating condemnation authority in the appropriate public entities extant and written in appropriate ways? Are they in conflict? Fourth, you need a valid public purpose to undertake any condemnation. What exactly is the public purpose here and, most importantly, what is its scope? Planning would have to be pretty far along in order to organize the taking claims. Fifth, any condemnation action filed, assuming it is done at the behest of an appropriate legal authority and is in pursuit of a valid public purpose, will have to end up paying “fair market value” for the parcel condemned. In this case, figuring that out would be quite difficult, in part because it would have to take into account the value of an arena planned to be destroyed. In short, as with any major real estate adventure in NYC, it’s probably a mess. It surely could be done. The purpose of constructing a major new piece of transit infrastructure certainly is enough to meet that requirement. But getting all the heads in the room on the same page will be hard. And since condemnation authority is a creature of state law, the General Assembly might also be at the table. For more details you really need to get help from a lawyer in the city, either for public or private entities, who does ED work. Offhand I don’t know of anyone.
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That’s a great and detailed response!
As far as I know eminent domain can’t be used on an area that is already operating economically, which MSG is, though as I mentioned without the permit, Dolan can still demolish the arena and build towers atop the station instead, which would still create economic development and generate revenue. MSG owns the land, the building, and all it’s air rights. Amtrak is the one who owns (has the most stake) and operates the station. But the LIRR and NJ Transit are of course state owned.
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If anyone would know, I assumed that among us, Chused, would have the most insight.
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If there is a good public purpose profitable assets may be condemned. It happens a lot. Just think about highway construction, urban renewal, or, now, a train station.
If Dolan owns the land subject to easement rights held by all the transit outfits, you are probably right about his right to go up. That might raise the fair market value of his interest well above the present value of MSG alone. Oops. That might ( I emphasize, might) be why the major players don’t want to condemn and take down MSG. That still may not give them control over above ground construction.
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If the government wanted to build a damn and had to flood an entire town then there would be multiple organizations involved. Same concept as this and it would eventually get done (for the greater good). Thats the bedrock of ED.
“….If there is a good public purpose profitable assets may be condemned…”
That was my understanding.
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More—. Just because you can take money making assets doesn’t mean it’s a good idea. Sometimes it works out ok. But urban renewal was often terribly implemented. St. Louis’ Miil Creek Valley project was terrible in what it did to decimate the black community there. Now more than fifty years later the area is only now being built out. SW DC also totally decimated a black community but panned out marginally better over time. The long term impact, however, has never been cured—especially for black owned businesses that never got replaced.
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Yeah but this is MSG we are talking about, in one of the most lucrative cities on planet earth. That’s much different than anything that happened in St. Louis. I highly doubt tearing down an old arena is going to butterfly effect the economic demise of Manhattan.
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F Wright— Didn’t say it would destroy NYC’s well being—just that care has to be taken in the use of ED and that train station design and grandeur is heavily impacted by the cultural moment and the availability of money. I think both will heavily influence what ends up happening with MSG. If NY. doubles the pot of gold and the city begs to get rid of MSG at its present site plans will change.
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Long Island Rail Road as well
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Exactly as expected…
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LIRR concourse is finished.
Some stuff on the ASTM proposal:
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