Apr
21

SAS eminent domain may torpedo an UES Fairway

By · Published in 2010

Bad things happen when the government gets between Manhattanites and their gourmet grocery stores, and the MTA is about to see, first hand, what happens during those battles. Last night, during a hearing on the MTA’s request to use eminent domain to take some properties it needs for Second Ave. Subway infrastructure, the news came out that a planned Fairway for 86th St. may be in jeopardy. According to Gabriela Resto-Montero of the news site DNAinfo, the MTA has requested some property that would “cut into a loading zone at the 240 East 86th Street location,” a spot Fairway has been eying for an Upper East Side store.

As Resto-Montero recounts, the MTA has proposed taking some of Fairway’s planned loading space and allocating it to other Second Ave. businesses that have suffered a loss in curbside access due to subway construction. Fairway, on the other hand, has requested an expanded loading zone and an exemption to delivery hours to compensate for their losses. “They don’t want to get into a situation where they can’t operate properly,” Richard Levin, the grocery store’s lawyer, said of Fairway last night. The grocery chain’s planned UES expansion may yet be another business casualty of the ongoing Second Ave. Subway construction.



14 Responses to “SAS eminent domain may torpedo an UES Fairway”

  1. SEAN says:

    In this corner! the MTA’s Second Avenue Subway! & in this corner! Fairway Market!

    Lets! get ready! to rumble!!!!!

    Welcome to the war

    • Jerrold says:

      Let us remember that the neighborhoods who are now complaining about the noise and the physical mess of their streets are the same neighborhoods who were JUSTIFIABLY complaning for so many years about how the East Side had only ONE subway line.

  2. Scott E says:

    I can sympathize with the hardships of existing businesses that are suffering. But for a business which hasn’t yet opened its doors, nor even leased its space, not so much so.

    I can’t understand how this space is going to business that lost its curbside access during construction. Wouldn’t this mean that their curbside access would come back when construction is done? Why do they need to permanently take space from Fairway to do it?

    • Aaron says:

      And where does MTA find authority to do what the article describes? It theoretically could under Kelo but I thought most states, NY included, had passed laws or state Constitutional amendments abdicating that newfound authority under Kelo.

      (Note: I don’t think the fault is with MTA, I think the reporting here is probably so imprecise aso be unintentionally misleading)

      • Jerrold says:

        For those of us who are not lawyers or law students:
        Is “kelo” some court decision that first established the concept of eminent domain, or what?

        • Kelo was, in a nutshell, the case out of New London in which the Supreme Court held that the use of eminent domain would be upheld for the public purpose of economic development even if it involved taking land from a private owner and transferring it to another private owner. It was a controversial holding, and Pfizer’s development in New London never came to pass.

          The reaction to Kelo was swift and numerous states passed statues explicitly countering the holding, but New York can exercise eminent domain for the construction of the Second Ave. Subway. That’s pretty much the ideal use of ED.

          • Aaron says:

            Ben: I read the article above to say that MTA is planning on exercising eminent domain on the property that the Fairway bought in anticipation of opening a store and is going to allocate it to other 2nd Ave. businesses in compensation for their other losses. If that’s a correct reading, than the issue I raised is entirely on point (did some brief googling and it actually looks like New York State is one of the few states that didn’t pass laws in response to Kelo so it’s kind of a moot point, even if that is what they’re doing it’s still legal today – most states passed laws that, as I described, more tightly constrained when state agencies may exercise eminent domain).

            Having said that, what I know about real estate law would fit on the head of a pin, my experience is in labor/employment issues, so I won’t claim to be infallible here.

      • Not quite sure I get the question, Aaron. The MTA is following the proper eminent domain hearing. Last night, they held a hearing. Eventually, they’ll put in their request to take the property. New York certainly hasn’t given up its eminent domain authority.

        • Eric F. says:

          Kelo was controversial because it held that the constitution permits a government to take private property from one owner and hand it to another under its power of eminent domain. The notion of ‘public purpose’ was interpreted very broadly, essentially covering any possible value enhancement the property would receive in the hands of the new owner.

          By contrast the ‘taking’ described above is exactly the sort of traditional eminent domain taking that fits what people would normally think of as a true ‘public purpose’, i.e., a taking to facilitate construction of public infrastructure.

          • Marc Shepherd says:

            I agree with this. Kelo is not even close to relevant.

            • Aaron says:

              As my comment below:

              As Resto-Montero recounts, the MTA has proposed taking some of Fairway’s planned loading space and allocating it to other Second Ave. businesses that have suffered a loss in curbside access due to subway construction.

              Who owns the loading dock area in question right now?

        • Aaron says:

          This is the part that had stood out as a little odd to me:

          As Resto-Montero recounts, the MTA has proposed taking some of Fairway’s planned loading space and allocating it to other Second Ave. businesses that have suffered a loss in curbside access due to subway construction.

  3. Alon Levy says:

    I’m sure Fairway will survive.

  4. david f says:

    WE NEED A FAIRWAY on 86th st.

    LET’S FIGURE A WAY TO MAKE THIS WORK…

    PLEASE!!!!!

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