Quote:
Originally Posted by Submariner
Any lawyers around who could shed some light onto this issue?
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I'm not really qualified to opine as to matters of zoning or Constitutional law, but my gut reaction is that this is an entirely frivolous law suit that isn't going anywhere.
The takings clause of the 5th Amendment is generally construed fairly conservatively, i.e., something actually has to be taken from you for it to apply. Penson is arguing that the grant of air rights to SL Green is effectively a "taking" because it reduces the value of Grand Central's air rights. In order to prevail, Penson would have to demonstrate that:
(1) the rezoning, which is funding over $200mm in public infrastructure improvements, does not serve any public purpose (good luck with that), and
(2) the government action has effectively "taken" property from him, which is going to be pretty hard to argue with a straight face given that he could still sell the air rights for a 500% profit (he bought them at $60 psf and they are estimated to trade at over $300 psf under the rezoning).
If this argument were to hold up, then every upzoning would trigger a "taking" in that it would reduce the value of unused air rights by current property owners in the surrounding areas. This would effectively destroy the model of funding public infrastructure with the sale of development rights and make it nearly impossible for the city to accomplish any upzoning anywhere. Thus, despite the fact that this already seems like a bullshit claim as a purely legal matter, the public policy implications of the precedent make it that much less likely a court would side with Penson.
This guy is just crying about having timed his bet wrong, I wouldn't take it very seriously.