Libertarian law professor Richard Epstein's latest weekly column is up at the Hoover Institution's Web site. It's about the New York City planning department's proposal to limit the width of storefronts on Broadway, Columbus, and Amsterdam avenues on Manhattan's Upper West Side. He writes:
Scroll down through the Planner's defense of the UWS plan, and the word "compensation"—as in compensation to those landlords affected by the burden of the proposal—will not be found.
The legal explanation is simple. The United States Supreme Court and the New York State Court of Appeals don't care about property issues. In both places, the key cases hold that land use restrictions should be regarded as "regulatory" and not "physical" takings. While there is a near per se duty to compensate for the latter, "mere" regulations may be imposed on property owners without compensation, except in rare circumstances where the government acts in a bizarre and irrational way. Any proposal that goes through an intensive study, as the UWS plan did, will not flunk that last test. So compensation to the aggrieved landowners and tenants is off the table. The planners don't have to pay property owners a dime for the loss in the value of their space and thus systematically downplay their predicament.
Their free ride, courtesy of the courts, drives the decisions of planning boards everywhere.