There are so many things synonymous with Macy’s: shopping, Thanksgiving Day Parade, July 4th Fireworks, and now an office tower.  It was recently reported that Macy's was looking to build an office tower on top of its iconic Herald Square flagship location.

You don’t have to be a retail industry analyst to know that physical retail stores have been closing and consolidating, faced with pressures from e-commerce, fast fashion brands, and Millennials looking for more experiences than shopping.

According to a Bloomberg story, "The company has floated plans for a 1.2 million-square-foot (111,500-square-meter) office tower that would be used by other tenants, according to a person with knowledge of the matter. Macy’s probably would push for zoning changes around its property to allow for the 800-foot (244-meter) building, which would bring an estimated 6,000 additional people to the area, said the person, who asked not to be identified because the talks are private. The plans are exploratory and may change."

Reports have said that Macy’s has been in talks with New York City about the project.  Two years ago the retailer wanted to add a roof deck to the Herald Square store as a way to increase foot traffic.  Feedback on that idea is what led to the idea that building upwards might be a better idea. According to a Macy's real estate executive, people in the real estate industry told the Macy’s real estate team constantly, "We love this piece of real estate, how do we get a piece of it?"

A Macy's spokesperson said: “Based on these discussions, we believe the best way to unlock the store’s underlying real estate value and promote economic activity in the area is to build a commercial office tower while continuing to operate this iconic store as our national flagship. But we’re still early in this process and there are a number of hurdles we need to cross before we can share more concrete details,” the statement says.

​One can’t imagine all that will have to happen in the area to absorb 6,000 additional people…might there even be some eminent domain news?

​Since 2017 we’ve been hearing a lot about the ups and a lot of downs of the Gateway project which is supposed to include: digging a new tunnel under the Hudson river, fixing-up the existing conduits, reconstructing the Portal Bridge in New Jersey, and renovating areas of connecting rail work.  Expected price tag? Approximately $30 billion.
 
We’d like to mention that 2017 is a key year in our blog post -- it’s when the Trump administration canceled an Obama-era agreement by which the federal government would fund half of the endeavor.
 
All of that seems to be taking a new and more positive turn as Oregon Rep. Peter DeFazio says he will put the project in a $2 trillion infrastructure bill.  That was the news given to a group from the New York press corps after a tour DeFazio took of the atrophied century-old tubes currently carrying commuters under the Hudson River. During the week of April 29th, President Trump, House Speaker Nancy Pelosi and Senate Minority Leader Charles Schumer arrived at the $2 trillion figure.
 
"I'm writing the bill, in my committee, and it is going to include projects of national and regional significance, and we're also going to have designated spending for members of Congress," DeFazio said.  "And I can guarantee this is one of the projects that will be included in those designations. This will be funded."
 
How will it all be funded? DeFazio said he would push to raise the federal gas tax by a penny and a half per gallon. It has been 18.4 cents per gallon since 1993.  Do you think that there will be push-back? This project is considered by many to be the most important infrastructure priority in the U.S. 
 
Let’s keep in mind that the Portal Bridge project has received the necessary federal environmental approvals, but the proposed new tunnel has not. DeFazio thinks that all will be well and he will waive the need for such reviews in the language of the infrastructure bill.  "We don't usually do that, but I find it hard to believe there's a negative environmental impact," he said. "We can just say it's deemed [done]."
 
Dare we add…has anyone mentioned eminent domain?

​It’s interesting how so many eminent domain blog posts from us also happen to include public transportation.  This time we found out about Elizabeth Crowley (D-Queens), the former Councilwoman who is pushing for a passenger rail line on the Long Island Railroad’s Lower Montauk branch, which runs 8.5 miles between Long Island City and Jamaica.  This new line, if plans come to fruition, could be used to bring new passenger rail service to communities like Maspeth and Glendale. Currently, there are no subway stops.  The hope is that this small and rarely used stretch of train tracks in Queens could be helpful in filling transit deserts.
 
If you seem to recall that there was service to the area way back when, you would be right.  Until 1998, the LIRR ran commuter trains along the line, but the MTA closed it when ridership became low. Currently, the tracks service freight trains and are used as an extra storage space for Sunnyside Yard.
 
Crowley commissioned an independent feasibility study in 2017, which was completed shortly after she left office in early 2018.  The proposal is to bring nine stops to the stretch.  How much would it cost? An estimated $2.2 billion and would serve about 21,000 weekday riders.
 
The project would be paid for by selling off MTA air rights and tax schemes like transit-oriented development. Half of the money would go towards upgrading freight operations.
 
Speaking to a Daily News reporter, Crowley said, “Queens is not getting its fair share of transit and local residents feel beyond frustrated with their daily commutes times,” said Crowley. “Trains would run on existing MTA owned rights of way, the line could be used immediately without eminent domain.”
 
Did you read our blog post last week about the Second Ave subway line? Note the cost when you re-read it! For this project, since the MTA already owns the tracks, the project would cost $259 million per mile to complete. If you recall, that’s a lot less than the $2.5 billion the agency spent building each mile of the Second Avenue subway.  For reference, the Second Avenue subway line has about 69,000 paying riders each weekday when counted in 2017.
Those in opposition to the plan say it’s too much money for too few passengers. Supporters note that the areas it will serve expect to boom in the coming years.  They site growth in areas such as Long Island City, Downtown Jamaica, and areas near JFK.
 
As one advocate put it…“You just can’t get to some places in Queens without going into Manhattan and coming back out again,” said Dorothy Morehead of Queens Community Board 3. “That’s crazy, I think it (the line) would be very good for everybody.”

Anytime New Yorkers hear about an upgrade in public transportation it probably starts off with excitement and ends with either dismay, frustration, apathy or all of the above.  The people of East Harlem have been hearing about a planned train for some time.  The stop is slated to be on Second Avenue at 106th and 116th streets, and two more on 125th street and on Lexington Avenue.
 
Here’s the part that gets residents feeling frustrated.  Preliminary MTA plans for the new subway lines require, you guessed it, eminent domain.  It is possible that several dozen of properties, some even say up to 41 properties, will be taken through eminent domain. This would result in the displacing hundreds of people along the Q train’s planned path.
 
No one knows the exact numbers just yet, but in the case of so many of these projects, the MTA still needs billions of dollars for funding to even start.  As you may have heard, this year’s Trump administration budget has included zero dollars for the project.
 
The City, a local news outlet that covers NYC, went through the federally approved 230-page document.  Their reporters note that “on the 23rd page of the sixth section… the MTA’s plan is laid out in black and white: The subway construction is slated to permanently displace 505 workers and 140 residential tenants.”
 
This is by far the largest property seizure in recent MTA history.  The first phase of the Second Avenue Subway on the Upper East Side displaced 56 residential tenants.  It is also triple what the MTA estimated in 2004 for a preliminary plan for the East Harlem portion of the train project. 
 
Eminent Domain could affect a variety of businesses from large development lots on East 125th Street to hair salons, bodegas and small apartment buildings farther south. 
 
For many who have grown-up and continued to live in buildings all of their lives, the thought of leaving is difficult.  It can also be difficult for those who wish to sell their property, as buyers often do not want to be caught in an eminent domain battle. For commercial businesses, it can be a difficult decision whether to stay or go, and information is difficult to come by. Often residents find out at local community board meetings.
 
Commercial tenants are entitled to compensation.  The Uniform Federal Relocation Act requires the State to reimburse losses caused by moving the business, among other things.
 
According to the MTA, officials say that they alerted property owners about the possibility it would take their properties in letters sent beginning in May.  Residents say that this is not the case and that they have not received any information. Even if the construction began in mid-2019, it is not expected to be completed until 2029.  We will keep you posted…

​They say eminent domain, we say blog!
 
Although it seems like every project has a budget overage, this one is really impressive.  We’ve blogged about the Gowanus Canal sewage-tanks and about the preservation efforts surrounding the historic Gowanus Station Building. Now we are ready to discuss a news update reporting that the price of the two sewage retention tanks the city will construct as part of the effort to clean up of the area has increased. 
 
The reason why we call it news is because that budget number has jumped more than 15 times beyond initial estimates.  Go ahead, do the math…the original projected budget was $78 million and now it’s up to $1.2 billion. That’s even double the estimated cost of the entire Superfund cleanup.  Those numbers came from The Brooklyn Eagle, by the way.
 
What’s to blame for the budget estimate increase? Eminent Domain of course!  The city is planning on building the two tanks on private land acquired through eminent domain. Meaning that the city is not using city-owned property nearby that was recommended by the EPA.  City officials say that the federal estimate was too conservative (no one ever gets NY prices, unless you’re from LA) and did not take into consideration the preservation of the historic Gowanus Station Building. (Remember that blog post?)
 
The low federal estimate also was considered by the EPA to have problems because it considered only simplistic construction methods and ignored community impact.  The original cleanup budget in 2013 as proposed by the EPA was $506 million. That would include cleanup of industrial and sewer discharges. The cost of the tanks is being picked up by the city with help from National Grid.
 
"DEP has built several CSO facilities and since 2013 has consistently estimated the project costs in excess of $700 million," read the statement a DEP spokesperson provided Crain's. 
 
Those following our blog also note that the plans have changed all together from the building of two tanks, one 8 million gallons and the other 4 million gallons) which would divert sewage and stormwater away from the canal to an alternative plan in the form of a tunnel.  The tunnel could store up to 16 million gallons of sewage and stormwater overflow. 
 
"DEP’s proposed tunnel alternative would include more storage, be scalable to accommodate increased population growth and cause less disruption during construction – clearly a much bigger bang for New Yorkers’ buck," a spokesperson said. 
 
Whatever is decided, this is one project that just will not be left by the wayside.  The cleanup is part of a major re-envisioning project for the Gowanus neighborhood. The area has gone from industrial to more residential, with plans to become "the centerpiece of a green, resilient neighborhood" with mixed-use development around parks and community resources. That’s according to a draft zoning proposal from the Department of City Planning.
 
What we do know right now is that there might be more than a few new blog posts on this topic as the budget and the project moves forward.

Usually when we write a blog post it is based on something we’ve read from a news agency or an announcement from New York State or the City about Eminent Domain.  It’s safe to say that we’ve never blogged about an Op-Ed from a dairy farmer. Ok, Leisa Boley Heelwarth also happens to be an attorney near Celina, Ohio. Either way, we found her thoughts interesting.
 
Note that we don’t like to get political on our blog either. Like they say, never talk about religion or politics if you want remain friends. This blog post is actually about how different people have a whole lot in common. 

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Boley Heelwarth notes that California and 15 other states (Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon and Virginia), the ACLU (American Civil Liberties Union), Public Citizens (a liberal watch dog group) and Texas landowners (typically conservative farmers and ranchers that are supportive of the current administration) have all filed suits against Trump’s emergency declaration regarding the border wall.

You may recall that on February 15, 2019 three landowners from Starr County, Texas and the Frontera Audubon Society filed the first lawsuit challenging the emergency declaration for the border wall.  The grounds for the lawsuit were based on an objection to the process that the President used to gain the funding after Congress largely denied it to him. They claim that Trump cannot waive eminent domain. Eminent Domain requires the government to demonstrate a public use for the land and provide landowners with compensation by declaring a national emergency.  
 
All four plaintiffs claim the wall would deny them access to their land. The plaintiffs contend that there was no real emergency as required by the National Emergencies Act. Even if there was an emergency, it does not  “requires the use of armed forces” which is the critical condition in the budget statute that the President unlocked by issuing his emergency declaration. Technically then there should be no emergency authority to redirect military construction dollars toward a border wall.
 
Long story short… Even if there is a military necessity — those dollars cannot be spent on just anything Boley Heelwarth says.  Money used to take property for a National Emergency would then belong to the military, not the government.
 
She says that we are likely to see intense litigation over a subtle but critical point. Can judges second-guess the president’s determination that there is an “emergency” under the National Emergencies Act? Can they at least second-guess the determination that the scenario “requires the use of the armed forces” as stipulated by the budget statute? It is a risky outcome either way, but landowners may want to watch for any ruling that chips away at eminent domain protections.
As is often the case, the issues spread to other issues and take years to untangle.  Boley Heelwarth notes that while the plaintiffs are focusing on the public use requirement of eminent domain, a whole other fight can break out about determination of appropriate compensation.
 
Why does any of this even matter to a farmer in Ohio? (That’s what we want to know too!)
 
Regardless of your opinion of the current administration, any legal action that makes it easier for a governmental entity to acquire private property has to be watched carefully. Eminent domain, as established in Constitutional amendments and subsequent case law, spells out specific criteria enabling a government to take private property, including farmland. Why would we enable any official to ignore these protections by declaring an emergency? That is a slippery slope that citizens need to watch out for.
 
And if we can add our own Op-Ed to this piece, it would be that if you ever get an eminent domain notice in NY, make sure you call the right lawyers who know the complex issues involved.  Getting good legal advice in an eminent domain proceeding is priceless.

For our New York readers who like to walk the beautiful and interesting streets of the West Village, have you ever noticed a small triangle outside of the Village Cigars shop? To be honest, we’ve passed the mosaic sign on 110 Seventh Avenue South but never really stopped to read what it said or to think if there was any history attached. That’s why we found this particular story interesting.
​
The small triangular mosaic set into the pavement is just 3ft in front of the cigar shop.  It is made out of faded black-and-white tiles andthe triangle measures roughly 2 sq ft.  If you look closely you can see that it reads “Property of the Hess Estate Which Has Never Been Dedicated For Public Purposes.” According to Andrew Berman, president of the Greenwich Village Society for Historic Preservation, it is “A cryptic message that alludes to a story that has come to embody the struggle for personal identity in this area.”

If you’ve heard some of the Village’s history, you might know about Stonewall, speak-easys, and many of the famous authors that drank at local pubs.  As Berman commented, the Village has always been “progressive, forward-thinking and dynamic.

The Village had become culturally diverse by the late 19th Century and without all of the tall buildings, one can imagine that it was an intimate place to live.  According to reports, where the cryptic triangle now lies stood an apartment block, called Vorhes, built by Philadelphia native David Hess, who had died in 1907.

Dramatic change had come to the streets of New York by the early 20th century.  Penn Station was opened with a rail tunnel under the Hudson River, and more and more people were coming to the city each day.  Expansion plans included extending both the Seventh Avenue and the subway line that ran beneath it southward in order to improve commuting connections between Lower Manhattan and Midtown, the city’s two major commercial hubs. 

To complete the project, 253 structures would be torn down to accommodate the thoroughfare! Similar to today, this happened through New York City’s eminent domain order.

Hess was not happy with these changes and considered it to be bureaucratic overreach.  Hess and his family refused to sell and over the next few years the family fought valiantly against the order. Sadly, by 1913 the Hess family had exhausted all legal avenues and the apartment block was demolished shortly after. The Seventh Avenue extension would pass directly through where lot 55 had once stood. 

Since the city blocks in that area can have an odd shape and size, there were often irregular pieces of land. “One point often overlooked is that there were many small, irregular-sized lots left over after the destruction – but the Hess Triangle was the smallest,” Berman said. In a somewhat humorous twist of fate a surveying mistake meant that a portion of lot 55 had survived, and was still legally owned by the Hess Estate.

No one really knows what happened next, except after a few additional years of court battles and the Hess family refusing to give up even that small triangle of property, the City of New York had called upon the Hess Estate to pay the accumulated property taxes on the remaining portion of the lot. But Frank Hess, David Hess’ son, claimed to be unaware any portion of the lot still remained in his family’s name.

In tribute, on July 26, 1922, the mosaics were installed and records show that the property was assessed $100 in property taxes. The Hess Triangle was eventually sold to Village Cigars in 1938 for a steep $1,000 (which, after adjusting for inflation, would equal around $17,500 today), and it has been preserved exactly as it was ever since.
 
Even more amazing is that with all of the snow, ice, heat, and people walking all over the mosaic, it still remains as a tribute to the spirit of the Village.

Sanchez & Polovetsky PLLC is a New York based eminent domain firm, as you know, and that means we often rely on mass transportation when it comes to visiting clients or making our way around the area.  We also represent clients subjected to eminent domain to make way for transit improvements.  The story below hits close to home, as our firm is involved in multiple cases involving the current LIRR Third Track/Grade Crossings projects.
 
Our blog post is focused on the Highway-Rail Grade Crossing Safety Act, originally proposed in 2015.  This bill was meant to provide grant money for what Schumer and safety experts have called the “three E’s” of grade crossing safety solutions: engineering, education and enforcement.  Back in February 2015, Schumer and Sen. Richard Blumenthal (D-Conn.) proposed the bill shortly after a Metro-North train struck a sport utility vehicle on the tracks in upstate Valhalla, killing its driver and five train passengers. The plan was ultimately left out of a $305 billion federal transportation bill passed in 2015.
 
Sadly, recently there was a similar accident at the School Street crossings in Westbury, where police said a sport utility vehicle, fleeing the scene of a minor auto accident, drove around rail road crossing gates that were down and into the path of two oncoming trains. The vehicle’s three occupants died, and eight people aboard the train were injured.
 
At a news conference in Garden City, Schumer outlined plans to resuscitate grade crossing safety legislation and to provide new grant funding for enhancements.  He said that bill died in 2015 in the Senate because of a lack of support from the Republican-controlled House of Representatives. At the news conference Schumer also said he believes “it can pass relatively easily” in the Democratic-controlled House, packaged in a larger federal transportation bill expected to be proposed later this year.
 
Currently, the LIRR and the state are planning to eliminate that crossing and six others.  It is part of its $2.6 billion effort to construct a third track on the railroad’s Main Line.  According to sources, it would be too expensive and complex to close any more of the LIRR’s nearly 300 crossings.  This would involve building a bridge over a roadway, or sinking a road under tracks.
 
Schumer said that while a dollar amount has not been determined for the reintroduced measure, he expects it will be in the "low hundreds of millions."
There’s even some Republican support for the plans. Rep. Peter King (R-Seaford) said on Monday he supports funding crossing safety improvement and that he "would expect to support the bill.”
 
Grade Crossing safety is of utmost importance, as it not only saves the lives of the people crossing, but also saves the lives of train passengers and engineers alike.  We welcome any improvements to grade crossings, in New York and all over the US.  We will keep you posted on this developing story.

Photo: Brooklyn Daily Eagle
Fight to save building ends with façade being incorporated into new sewage facility

​In September 2018, you probably read either here or in another New York news outlet that the City of New York took title to the Gowanus Station Building, at 234 Butler Street, through its powers of eminent domain. The City plans to build a new sewage facility on the premises, since the Gowanus Canal has been dangerously polluted for years.

The new sewage facility will focus on cleaning up the Gowanus Canal, according to a plan finalized by the EPA in 2013. However, the Gowanus Station building will have to be demolished in order to make way for it.

Over the last few years, community activists have been staging protests against the planned demolition of Gowanus Station. A group called the Gowanus Landmarking Coalition campaigned for the century-old, Beaux Arts-style Butler Street building to be included in a city-designated historic district. This would have protected the building from demolition.

That didn’t happen, but a sort of compromise was reached. The Environmental Protection Agency has drafted a memorandum of agreement with the New York State Historic Preservation Office, and says that it will preserve the Gowanus Station’s two walls. Gowanus Station’s Nevins Street facade and 25 to 30 feet of its Butler Street facade will be dismantled and reconstructed “to the extent practicable,” the EPA said.

People from the Preservation Committee don't seem the least bit happy about all of this. “Preservationists know that a promise to tear down and rebuild a historic building does not mean that it will actually happen, that it will be done well, or that it will have any authenticity,” a Gowanus Landmarking Coalition spokesperson told the Brooklyn Eagle.

“If the city’s Landmarks Preservation Commission had stepped in, we would not be at this juncture,” the spokesperson added. “If the Department of Environmental Protection had not failed to consider the building’s value as a National Register-eligible site from the outset, we would not be at this juncture. If the Environmental Protection Agency had insisted that DEP back down from its fait accompli, we would not be at this juncture.”

Why all the fuss? At first glance, the Gowanus Station building located at 234 Butler Street doesn’t even seem like much. Maybe that’s because of the very distracting yellow “Sanitation Repairs” signage. But if you look a little closer, particularly at the top of this building, you will see that its details are actually quite beautiful.

Such is the power of eminent domain. When the government needs your property for a public use, no amount of protesting will stop it. Here, a sewage facility to help dispel the pollution in the Gowanus canal is inarguably a public use. So the 5th Amendment to the U.S. Constitution kicks in, and the property owner’s main recourse is to sue for just compensation in Court. Although these types of legal proceedings tend to take many years to resolve, with competent legal representation property owners are usually made whole.

And here we toot our own horn for a moment, and note that not a single one of our clients has ever gone out of business or lost money in eminent domain proceedings. This is not true for all property owners facing condemnation, even when represented by counsel claiming to know what they are doing. When facing eminent domain, it is very important to choose the right lawyer. You only get one chance to be made whole.