Cover Image

Larger ImageView Larger

Slide Mountain

Or, The Folly of Owning Nature

Theodore Steinberg (Author)

Available worldwide
READ AN EXCERPT

Paperback, 224 pages
ISBN: 9780520207097
November 1996
$31.95, £21.95
Other Formats Available:
The drive to own the natural world in twentieth-century America seems virtually limitless. Signs of this national penchant for possessing nature are everywhere—from suburban picket fences to elaborate schemes to own underground water, clouds, even the ocean floor.

Yet, as Theodore Steinberg demonstrates in this compelling, witty look at Americans' attempts to master the environment, nature continually turns these efforts into folly. In a rich, narrative style recalling the work of John McPhee, Steinberg tours America to explore some of the more unusual dilemmas that have arisen in our struggle to possess nature.

Beginning along the Missouri River, Steinberg recounts the battle for three thousand acres of land the river carved from a Nebraska Indian reservation and deposited in Iowa. Then he travels to Louisiana, where an army of lawyers butted heads over whether Six Mile Lake was actually a lake or a stream. He continues to Arizona to investigate who owned the underground, then to Pennsylvania's Blue Ridge Mountains to see who claimed the clouds. He ends in crowded New York City with Donald Trump's struggle for air rights.

Americans' obsession with owning nature was immortalized by Mark Twain in the tale of Slide Mountain, where a landslide-prone Nevada peak turned the American dream of real estate into dust. In relating these modern-day "Slide Mountain" stories, Steinberg illuminates what it means to live in a culture of property where everything must have an owner.
Preface, by Senator Dan McCorquodale

Fast Fish in America: An Introduction

1. Blackbird's Ghost: Real Estate and Other Fantasies
2. Identity Crisis in Bayou Country
3. Notes from Underground: The Private Life of Water
4. Cloudbusting in Fulton County
5. Three-D Deeds: The Rise of Air Rights in New York
6. Paper Moon: A Conclusion
Theodore Steinberg, Assistant Professor of History at New Jersey Institute of Technology and Rutgers University, Newark, is author of Nature Incorporated: Industrialization and the Waters of New England (1991).
"A beautifully written work. . . . A tremendously fresh assessment of not only the perils of owning nature, but an entire realm of public and private thoughts, writings, laws, and legislation having to do with nature, property, conservation, and culture."—William Deverell, author of Railroad Crossings
Chapter 5. Three-D Deeds: The Rise of Air Rights in New York


We will probably be judged not by the monuments we build but by those we have destroyed.
NEW YORK TIMES, EDITORIAL (1963)

Singer Tower was once the tallest skyscraper in the world. Over six hundred feet of red brick and steel lavished with pediments, balconies, cartouches, and consoles and capped by a huge mansard roof with decorative lantern—this futuristic gem was completed in 1908 for the famous sewing machine company. Its lobby resembled a cathedral, replete with sixteen exquisite piers of Italian marble, intricately detailed bronze railings, and a vaulted ceiling with glass domes. It boasted its own little generating plant for producing power and heat; special vacuum tubes set into the walls to make office cleanup easy; even a network of pipes made especially for cleaning silk hats. Not a detail was overlooked, right down to a system for distributing ice water—cooled in a basement refrigeration plant—to tenants. Singer Tower was truly a modern building, a structure ahead of its time. Perhaps that is why Ernest Flagg, who designed th tower, believed it to be "as solid and lasting as the Pyramids." 1

Flagg died in 1947. Two decades later, Singer Tower lay in a steaming pile of plaster and dust—courtesy of the Lipsett demolition company. Superintendent Harry Glick, whose crew leveled the tower, laughed when he was reminded by some reporters that back in 1908 Singer Tower held the height record before being overshadowed the following year by the seven-hundred-foot Metropolitan Life Insurance Tower. "History moves fast," Glick remarked. "I've been in demolition work for nearly forty years—on jobs ranging from chicken coops to skyscrapers. My father was a demolition man. He and his partner in the Louis J. Cohen Wrecking Company took down the old riding academy at Fifty-ninth Street and Fifth Avenue to make room for the Savoy-Plaza, and now we've taken down the Savoy-Plaza to make room for General Motors. History moves fast." 2

An inexorable economic logic drove Lipsett's wrecking ball. For all its beauty and elegance, the tower simply did not maximize the value of the site's air rights. It contained only a little more than four hundred thousand square feet of office space at a time when buildings four or five times that size were going up. Airspace had become a valuable commodity by the twentieth century, and only faint hearts would shy away from bulldozing the past to realize the future. No such hearts existed at U.S. Steel; the company built a fifty-four-story structure with 1.8 million square feet of office space atop Singer Tower's corpse. So eager was the company to capitalize on the new building's economic potential that it secured control over a plot of land south of the site and landscaped it into a plaza; that move earned U.S. Steel a zoning bonus that allowed the plaza's unused air rights to be transferred to the site of the imposing steel behemoth. Today the building looks like the work of a steel company. Finished in 1974, the structure amounts to a monumental advertisement for its product, featuring exposed steel girders evenly stacked one on top of the other. Thus did Singer Tower become the U.S. Steel Building, which became One Liberty Plaza when the company chose not to make its headquarters there. It was evidently more lucrative to stick with its current lease and rent out the new space on lower Broadway. 3 Welcome to New York.

In the modern world, Karl Marx once observed, "everything seems pregnant with its contrary." 4 Elsewhere, he explained why in a famous passage: "The bourgeoisie cannot exist without constantly revolutionising the instruments of production, and thereby the relations of production, and with them the whole relations of society.... Constant revolutionising of production, uninterrupted disturbance of all social conditions, everlasting uncertainty and agitation distinguish the bourgeois epoch from all earlier ones." "All that is solid," he concluded, "melts into air." 5 But what would happen when all that was left was air? Answer: It too would melt. In the modern world, there is modern property, of which airspace is the quintessential example. Cut off from the land below, airspace has little, if any, territorial allegiance. In the century after Marx's death in 1883, New York City's air was distilled into a set of exchange values. Airspace became real estate, the better to own and trade it.

In a culture in which everything must have an owner, even something as diffuse as airspace could become property. How did this come to pass? What did the transformation of airspace into a commodity that could be owned and traded mean for New York and those who lived there? We must search for the answers to such questions to better understand the dilemmas of modern living, to make sense of ourselves, our cities, and the world we have made—and destroyed.


For centuries, land was a two-dimensional affair. When lawyers in Blackstone's day (1723-1780) spoke of owning real property in land, it was the earth's surface that they generally had in mind. Blackstone himself wrote that land comprehended in its "legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath." 6 It is, of course, true that Blackstone mimicked Lord Coke's famous ad coelum maxim (he who owns the soil owns upward to the sky). 7 But nevertheless, it was the surface of the earth that concerned those in a society based primarily on agriculture. One could walk the boundaries of such real estate, spell them out in metes and bounds, revel in the neat and ordered expanse of two-dimensionality that unfolded across the countryside. Landed elite and commoners alike had both feet planted firmly on the ground. 8

The same was largely true in America as well. Jurists like James Kent paid homage to the ad coelum maxim; but it is hard to believe, in a society based largely (through the nineteenth century at least) on the tilling of soil, that property owners thought of real estate as anything more than the earth's two-dimensional surface. 9 Certainly if possession is at the root of ownership—a commonplace in the law—it is hard to imagine that landowners really thought their "land" extended upward to the sky. As late as 1897, a treatise writer explained that "land means in law, as in the vernacular, the soil or portion of the earth's crust." 10

But in the twentieth century, all this began to change. With the rise of modern property, land took on a much broader meaning. The leading case of Butler v. Frontier Telephone Company illustrates the point. Butler sued the company when it stretched a wire over his land in Buffalo, New York. Neither the wire nor any supporting pole touched soil owned by him. Did Butler own the airspace over his land? Was he deprived of possession of that space by the telephone company's wire? In 1906, the New York Court of Appeals found for Butler. It reasoned that "space above land is real estate the same as the land itself." 11 Possession is founded on an understanding of the earth as a discrete set of ownable things (a point explored in chap. 1). By equating airspace with real estate, the court established the reality of this new form of property. "This case," wrote one legal scholar, "is an unequivocal commitment to the view that the land-space above the surface is subject to possession and ownership in the same complete sense that the surface is." 12

"Land," another legal writer observed in 1928, "has been the most corporeal of corporeal things. It is real estate. Can an abstract thing like space be bought and sold as land? The air as such obviously cannot." 13 But call what was above the ground airspace and property would plunge straight into the third dimension. Transformed into a thing, into real property, airspace was severed from the terra firma, cut adrift and catapulted into the world of property and trade.

In 1927, the Chicago Union Station Company sold the air rights needed for the Daily News Building. Meanwhile, Marshall Field bought air rights from a railway company and built the huge Merchandise Mart (finished in 1930), once the largest building in the world, with more than seven miles of hallways alone. 14 With the aid of three-dimensional deeds, financiers in New York, Philadelphia, Baltimore, and Boston all began capitalizing on the air in their respective cities. "Within the memory of the youngest of us," Theodore Schmidt told the American Bar Association in 1929, "millions of dollars' worth of usable space has been reclaimed from the wastes of a generation ago, to the gain of all concerned." Thus did real estate lose its attachment to the earth and become deterritorialized. "Conveyancers and lawyers," Schmidt explained, "are now for almost the first time required not only to think, but to speak, of land ownership in terms of three dimensions." 15

That was 1929. But by then New Yorkers had already been talking about air rights for almost thirty years. The city's first encounter with modern property began in 1903 with the decision by the New York Central Railroad to rebuild Grand Central Station. Until this time, the station (first erected in 1871) and its railroad yards occupied a stretch of land north of Forty-second Street on the city's east side. The plan called for electrifying the trains and relocating the terminal complex underground on a two-level platform. An engineer named William Wilgus proposed that with the terminal located belowground, buildings could go up on the "air rights" (a term he coined) above. "The keynote in this plan," he explained, "was the utilization of air rights that hitherto were unenjoyable with steam locomotives requiring the open air. . . . Thus from the air would be taken wealth with which to finance obligatory vast changes otherwise nonproductive. Obviously it was the thing to do." 16

Cashing in on that air first meant tearing down what existed above Forty-second Street, including about two hundred buildings. Demolition has been big business in New York ever since. With the land now cleared of its past, workers exploded one million pounds of dynamite and hauled almost three million cubic yards of rock and soil out of the earth to make way for the new terminal complex. The station alone took ten years to build. Completed in 1913, the building is a stunning Beaux Arts inspiration. The main facade on Forty-second Street features Corinthian columns and huge arched windows topped by Jules-Alexis Coutan's graceful Roman statuary. On the air rights nearby, seven new buildings were initially planned, including the Manhattan, Belmont, Vanderbilt, and Biltmore hotels. 17 The buildings were set on a steel and concrete roof that covered the tracks below; a special insulation system absorbed the vibrations caused by trains underneath. Eventually, air over some twenty-eight acres owned by the railroad was made available for similar ventures.

Building on air was a futuristic fantasy come true, but it was hardly the only product of the turn-of-the-century urban imagination. Property's new three-dimensionality also found expression in New York's 1916 zoning law, the first of its kind in the country. Prompted by the construction of the massive Equitable Life Assurance building (1915), which cut off light as far as four blocks away, the zoning law established height and setback rules. (The Equitable building is 27% smaller than the structure U.S. Steel later erected across the street to replace Singer Tower.) 18 Under the 1916 law, a tower could reach a limited height before it had to shrink to only 25 percent of the building plot. The 25 percent tower could then reach as high as one liked. Zoning, however, was more than just a form of self-protection for property; it was a vision—in three dimensions—of what the city could become.

It is useful to compare the 1916 zoning law with the other major exercise in urban dreamwork promulgated a century before: the Manhattan grid. The grid, developed by Simeon deWitt, Gouverneur Morris, and John Rutherford in 1811, divided the city into more than two thousand blocks (12 north-south streets and 155 running from east to west). The Dutch architect Rem Koolhaas called the Manhattan grid "the most courageous act of prediction in Western civilization: the land it divides, unoccupied; the population it describes, conjectural; the buildings it locates, phantoms; the activities it frames, nonexistent." Not merely an incredible prediction, it was also an amazing act of arrogance. "Through the plotting of its streets and blocks," Koolhaas continued, "it announces that the subjugation, if not obliteration, of nature is its true ambition." 19 What the grid did horizontally for the land, zoning did vertically for the sky. The 1916 law created more than two thousand imaginary boxes. It was a three-dimensional design for the city, and before long developers sought to make the most of each zoning box, maximizing profits by filling every square inch with concrete and steel.

manhattan grid
Manhattan grid: commissioners' plan of 1811

The new geometry of modern property spurred one of the biggest building booms in Manhattan's history. Since at least the Civil War, the city's economy had been based largely on the manufacture of apparel. But manufacturing activity peaked around 1919 and was later eclipsed by a new postindustrial service economy. 20 White-collar professionals—managers, brokers, lawyers, accountants, and so on—were flooding into the city to work. What they needed, of course, was office space to conduct their business. There were just three office buildings in the Grand Central area in 1900; in 1937, there were one hundred three. During the 1920s alone, sixty-four new buildings went up with a colossal twelve and a half million square feet of rental space. 21

Frederick Jackson Turner once declared that the American frontier had closed in 1890; New York developers proved him wrong. A huge frontier was lurking overhead—just waiting, it seemed, to be occupied. To the seven air rights ventures over the tracks leading out of Grand Central were added new hotels and office buildings. Slowly the holes over the terminal complex were filled in like a giant vertical jigsaw puzzle inching toward completion. First came three new hotels: the Marguery on Park Avenue between Forty-seventh and Forty-eight streets (1916-1917); the Commodore on Lexington Avenue and Forty-second Street (1917-1919); and the Ambassador up on Fifty-first Street (1921). Then came six more ventures in air, including: the Park-Lexington Building (1922-1923); the Roosevelt and Park Lane hotels (1922-1924); the Graybar Building (1926-1927); and the grand, ornate New York Central Building (1927-1929), a thirty-five-story tower with two traffic tunnels carved through it which could be seen from miles around. One historian called it "a fittingly extravagant conclusion to the orgiastic decade." And finally, there was the Art Deco Waldorf-Astoria (1930-1932), which occupies the entire block between Forty-ninth and Fiftieth streets stretching from Park to Lexington, its dual towers, all six hundred-some feet of them, resting on over two hundred steel pilings. Because it stands on the air over a railroad yard, the Waldorf has a very small basement, and thus its distinguished guests must tolerate the oddity of a wine "cellar" on the fifth floor. All told, the Central and Harlem railroads in 1930 reaped four million dollars in revenue from the leasing of air rights. 22

Where New York once produced clothing, now more and more it was becoming a huge factory for the production of space. As the philosopher Henri Lefebvre has argued, capitalism, to survive, extended its grip over "space in its entirety," not just the land but the earth below and the sky above, up and down as far as it could reach in the name of surplus value and profit. "The 'commodity world,' "he writes,". . . which formerly encompassed only goods and things produced in space, their circulation and flow, now govern\[s\] space as a whole, which thus attains the autonomous (or seemingly autonomous) reality of things, of money." 23 It was this very commodity world that colonized the airspace over New York City. The modernization of air started there at the turn of the century. A new geometry transformed airspace, liberating it from the land and converting it into private property. Real estate, the most tangible, corporeal of things, seemed to be disappearing into thin air. At the same time, airspace, a three-dimensional abstraction, became a thing that could be owned and sold. Thus was air welcomed into the modern world; a stroll down Park Avenue was all it took to prove it.


Forty years after Grand Central Station was finished—eighteen thousand tons of steel, Corinthian columns, Mercury sculpture, bronze chandeliers, and Botticino marble assembled in over ten years of construction—Robert Young, chairman of the New York Central, owner of the property, announced that he was going to demolish the building. In 1954, Young said that with its mounting debt, the railroad could no longer afford to ignore the value of its air rights. On the ashes of Grand Central, Young proposed a huge office tower that would loom higher than the Empire State Building. 24

The building was never constructed. Instead, workers leveled a six-story office building just to the north of the station to make way for a fifty-nine-story tower, a 2.4-million-square-foot hulk of concrete and steel that at the time was the biggest office building in the history of the world. The infamous Pan Am Building (now Metlife) was built big and cheap to capitalize on rental revenue. But Pan Am is mainly remembered for blocking off the view up and down Park Avenue. That view, provided one could see it, had changed a great deal by the time the Pan Am Building was finished in 1963. Low-rise apartment and office buildings constructed earlier in the century were replaced by structures that filled the zoning box more completely. The twelve-story Montana Apartments at 375 Park Avenue became the forty-story Seagram's Building (1958). Down the block, the Marguery, also at twelve stories, became Union Carbide at fifty-two (1960). McKim, Mead, and White's 277 Park Avenue apartments, again twelve stories, became Chemical Bank at fifty (1962). It was the New York Central, of course, that mainly benefited from the remaking of the Grand Central area. The company realized higher profits from leasing more air rights.

Grand Central Terminal itself was spared, but only briefly. In 1967, the demand for Manhattan office space swelled. The city was on the brink of another building boom. Of the two hundred new office buildings that went up on the island between 1953 and 1973, 40 percent alone appeared after 1966. In other words, office space totaling seventy-one million square feet was built between 1967 and 1973. 25 Imagine the Empire State Building. Now imagine fifty more of them. In 1967, the New York Central sought to take advantage of the demand for midtown office space by proposing a tower to sit directly over the famed waiting room of Grand Central Terminal. Only a month before, the terminal had been declared a landmark by the city's Landmarks Preservation Commission (founded in 1965 to preserve buildings of historic or architectural significance). The British developer Morris Saady next leased the air rights over the terminal for fifty years at three million dollars per year. He hired the distinguished architect Marcel Breuer to build him a tower. Breuer proposed to float a fifty-five-story concrete slab over the station. 26 As Ada Louise Huxtable, New York Times architecture critic, pointed out, more than anything, the tower symbolized "the awesome value of New York air rights." Had it not been for the enormous value of the air, the tower project probably never would have come up. "That solid gold air is there to stay," Huxtable concluded, "and if its superheated values continue to rise as anticipated in the coming half century Manhattan could someday replace Fort Knox." 27

Breuer himself would have rather demolished the terminal. But the landmarks commission prohibited that; nor did it favor his plan for cantilevering the tower over the building since it affected the exterior of the historic structure. So instead Breuer proposed a second tower that would have completely destroyed the terminal's exterior but saved the main concourse inside. "There has always been some question in the minds of informed people," said Breuer, "as to whether the exterior of Grand Central Terminal is worth preserving." 28 Again, the landmarks commission turned down the plan. "To protect a landmark," their report reads, "one does not tear it down. To perpetuate its architectural features, one does not strip them off." 29

If only the railroad could have transferred its air rights somewhere else in the city, perhaps Grand Central would be spared the wrecking ball. Let the railroad realize the value of its air and maybe it would leave the terminal alone. Transferring air was nothing new in New York. The city had permitted the shifting of air rights from lot to lot to build higher towers at various times since the 1920s. 30 But starting in the 1960s, air rights were used to save the city's historic landmarks. Destruction was only one end to which the buying and selling of air might lead. Oddly enough, preservation was another. Because of changes in the zoning law, which we will address in a moment, the same air responsible for the destruction of the old buildings could instead be used to keep intact the city's architectural heritage. Maybe Marx was wrong. Maybe he had it backward when he said that things solid would melt into air. Maybe a way had been found for air to be used to give New Yorkers something solid to latch onto, a monumental remembrance of things past.

Using air rights transfers to preserve landmarks like Grand Central had its roots in a zoning law passed in 1961. New York needed a new zoning code at that time for one simple reason: Were building to take place in accordance with the 1916 resolution, the city would eventually have more than fifty million residents, not to mention a working population roughly the size of the entire United States today. 31 So to limit density, the law established floor area ratios (FARs) for all parts of the city. Consider this example. Suppose an area of the city was mapped with an FAR of eight. This meant that a builder with a zoning lot measuring ten thousand square feet could erect a structure containing no more than eighty thousand square feet of floor space on the site. To build twice as high, the builder could use only half the area of the lot.

Now nothing is more likely to cause apoplexy in a developer than a limit on building bulk. So to win support from the real estate community for the 1961 zoning resolution, concessions were made. Technically no area of the city was to have an FAR higher than fifteen; but by leaving room for a public plaza around the building, a 20 percent FAR bonus was added. Even more bulk could be squeezed onto the site by virtue of a second concession to development interests. The 1961 law liberalized the definition of the term "zoning lot." The term now included not just the building site but any other piece of land under identical ownership within the same city block. A lease of seventy-five years constituted "ownership" for zoning purposes. The rule allowed a developer to rent a vacant city parcel, thereby expanding the size of his zoning lot; this permitted the transfer of unused air rights over the empty land to the site of the new project. 32

Grand Central Terminal's FAR was one and a half; the district's maximum FAR was eighteen, making for an enormous unused development potential. Were it not for the fact that Grand Central already occupied an entire zoning lot, the 1961 law might have helped the railroad with its unused air rights. Neither did a 1968 amendment to the zoning code aid the company, an unfortunate development since it was designed specifically to facilitate the transfer of air rights over landmarks. The new amendment expanded the definition of a contiguous parcel of land; now lots that were across the street from landmarks could qualify as designated receiving sites for unused air rights. Under the new amendment, transfers could also take place between lots owned separately so long as the shifted air rights did not exceed 20 percent of the bulk allowed on the site. 33 The idea behind the amendment was to help the financially strapped city preserve landmarks—to put an end to the fast-forward history of our demolition expert, Mr. Glick. Since the city could not afford to save anywhere near the number of landmarks worth saving by purchasing them, the zoning amendment let the owners of landmarks themselves do the preservation work. The amendment established transferable development rights (TDRs) in air which permitted landmark owners to sell the air and keep the historic building intact. 34 But again, the railroad could not reap any benefit from the zoning law change; all the newly defined "adjacent" lots were already fully developed.

Then in 1969, on precisely the day that the Penn Central company was readying to sue the city—for unconstitutionally taking its property in forbidding it to build its tower—the city planning commission proposed yet another amendment to the zoning code. 35 This one was tailor-made for the railroad. Again, the definition of an adjacent lot was broadened to include lots that were "across a street and opposite to another lot or lots which except for the intervention of streets or street intersections form a series extending to the lot occupied by the landmark building." 36 That was another way of simply saying that Grand Central's air rights could now take a cab uptown. The new amendment allowed the railroad to transfer its unused development rights five blocks north of the terminal to the Barclay Hotel on Lexington Avenue and Forty-eight Street. Also, the 20 percent limit on the amount of air rights that could be transferred was rescinded. In effect, the new amendment amounted to an FAR windfall; it boosted the total FAR on the Barclay site to thirty-four and a half, just shy of twice the allowable maximum under the law.

But the railroad was still unhappy. In the time it took the planning commission to come up with a zoning code that fit its needs, the market for office space in New York had dampened considerably. "You don't make the market," developer Harry Helmsley said at the time. "The market makes you." 37 Penn Central chose to sue, not build. It launched a suit against the city alleging damages of eight million dollars a year until the tower over the terminal could be built.

It took almost a decade for the case to be settled. The railroad complained that the application of the landmarks law amounted to an unconstitutional taking of private property without just compensation. In the company's view, its property consisted of two parts: ground (the surface plus the underground terminal) and airspace. By dividing the property in such a way, the railroad was able to claim that it had been deprived the profitable use of its air rights, whatever value it still derived from the terminal itself. As events unfolded, the New York Supreme Court found for the company; the appellate court above, reversed; the state's highest court affirmed the reversal. On appeal to the U.S. Supreme Court, the decision against the railroad was reaffirmed in 1978. Justice William Brennan wrote the majority opinion. He held that the landmarks law did not amount to a taking. His reasoning was simple enough. Unlike the railroad, Brennan refused to divide the property into ground and airspace. His was a somewhat less modern concept of property than the railroad's (at least when it came to takings law). Call it premodern. "'Taking' jurisprudence," he wrote, "does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated." It was the "parcel as a whole" that concerned him. Since the law forbidding the tower did not directly affect the company's ability to gainfully use the terminal, which it been doing for decades, no taking had occurred. 38

Grand Central was saved. And yet the ruling did more than affirm the constitutionality of the landmarks law; it also established the value of transferable development rights in airspace. If Justice Brennan was not thinking entirely in three dimensions, there is no doubt that the decision sanctioned the exchange value of air rights. The city's TDR program for preserving landmarks—embodied in the amendments to the zoning law—was not yet perfect, the court opined. But had a taking occurred, the right to shift air rights to another parcel of land would have "undoubtedly mitigate\[d\] whatever financial burdens" the landmarks law imposed. If not quite just compensation for the taking of private property, TDRs were still compensation, said the court; ergo, TDRs in airspace were a valuable form of property. 39

The preservation-minded hailed the decision as an important victory. "Today's ruling upholding the landmark law and preserving the integrity of Grand Central Station can truly be called a landmark decision," said New York's mayor, Ed Koch. There were others, of course, who were far less enthusiastic. Developer Melvyn Kaufman, whose family had been in the building business for six decades, said the decision would have important consequences for construction in the city. "It's not going to come cheap," he remarked. "There are no free lunches and the public will have to pay for it. Buildings that should be 30 stories tall will have to be 60." 40

Meanwhile, as the Penn Central case worked its way through the courts, the zoning law was further amended. Until 1970, the law allowed the transfer of air rights only over privately owned landmarks. But what about publicly owned ones like the massive U.S. Custom House on lower Broadway, with its more than three quarters of a million square feet of unused airspace? A company wanted to demolish a fifteen-story building across Bowling Green and erect a fifty-story skyscraper in its place; but it did not have the necessary air rights to do so. The Custom House did. The planning commission helped by amending the zoning law to allow such a transfer, but the weak market in office space scuttled the deal. The Landmarks Preservation Commission favored the air rights amendment, although one commission member, Beverly Spatt, did speak out against it: "If we sell the air rights over the Custom House the first time, what will be next? The Public Library on 42d Street? And the museums?" 41

As late as the early eighties, one could count the number of landmarks saved through air rights transfers on one hand. 42 There are too few fingers on the other hand to tally all the remaining air rights ventures that benefited solely private investors: Olympic Tower, Trump Tower, and the Tishman-Speyer building, just to name a few of the more notable ones. 43 What then should we conclude about the city's effort to use air rights to preserve the past? TDRs in airspace are a market solution to a market problem. They are premised on the idea that the exchange value of a landmark's air rights will be something that a nearby developer might want. If the real estate market is soft, as it often is, the value of the air diminishes, and so does the hope of saving the landmark.

Professor Lefebvre, whom we encountered earlier, has had something interesting to say about so-called solutions—like TDRs in airspace—to urban problems. Lefebvre, who, it may be relevant to point out, spent two years as a Paris cab driver, wrote as follows: "The supposed solutions of the planners . . . impose the constraints of exchangeability on everyday life, while presenting them as both natural (or normal) and technical requirements—and often also as moral necessities." 44 They are, in fact, none of the above. Solutions like TDRs to preserve landmarks are not simply neutral social practices; they are ideologies. While claiming to solve some problems, they force the ideology of exchange further into the marrow of daily existence.

To drive this point home, it is instructive to look at one air rights venture in more detail. The deal we are interested in involved the Racquet and Tennis Club, a Renaissance-style palazzo where the wealthy have gone to play squash and court tennis since 1918. The building is just up the block from Grand Central Terminal, at Park Avenue and Fifty-second Street. Built by McKim, Mead, and White, the five-story building did not achieve landmark status until after the events described below. But what happened at the Racquet and Tennis Club has something to tell us about the relationship between air and preservation.

The story begins in 1969. 45 That is when the Fisher family—parvenus headed by Larry Fisher, who was once described as "a tough, audacious street fighter"—launched a new project. The Fisher Brothers have been in the building business since before the turn of the century. In 1974, five years and twenty-two million dollars later, Larry Fisher and family controlled a prime piece of Manhattan real estate in the middle of the block bounded by Park and Madison, between Fifty-second and Fifty-third. The site was perfect for an office tower. The Fishers needed two things from the Racquet and Tennis Club: air rights and its Park Avenue entrance, to give the new tower a fancy enough address to attract tenants. So in 1977 the Fisher Brothers offered the club a few hundred thousand dollars. The offer was rejected when Jonathan Morse, an architect, real estate developer, and club member, convinced the club's president that it was a lousy deal. Morse said he knew little about the matter but was quite frank in his opinion of the Fishers. "If Fisher Brothers was going to deal with the Racquet Club," he remarked, "then the Racquet Club was going to get screwed."

Unable to get the club to cooperate, the Fisher Brothers hatched a scheme to bring Park Avenue to them. They had their lawyer persuade the Manhattan borough president to change the address of their proposed building to "Park Avenue Plaza." The new address sounded fancy enough, even if it was not actually on Park Avenue. Now the Fishers no longer needed a right-of-way through the club. Nor did they need its air rights because of a special zoning bonus. Fisher Brothers had their architects design a huge, sixty-foot lobby for the building that would function as a public space. The lobby accomplished two things. It gave all the building's rental office space unobstructed views over the Racquet and Tennis Club. And, more important, it allowed the new tower an air rights bonus. The fact that the lobby would be open to the public qualified the building for an air rights increase equal to what the club had to offer. The Fisher Brothers would get their tower; the club would get nothing.

Unlike the Fishers, the Racquet and Tennis Club membership is old money—money that was not made by allowing people to take advantage of them. If the Fisher Brothers did not want their air, fine. They would use it themselves. Architects designed a hotel tower thirty-eight stories high to be cantilevered over the club. Throughout 1978, improvements were made to the design, including a plan by the architect Wally Rutes to increase the number of hotel rooms. (Rutes, according to Morse, had "a ton of concrete under his belt.") The hotel tower was supposed to save the building by helping the Racquet and Tennis Club to survive financially. But one solid reason for the hotel was to obstruct the Fisher Brothers—literally. If the hotel were built, the Fishers' tenants would gaze out their Park Avenue windows on a blank wall of concrete and steel.

In other words, the club was playing chicken, threatening to destroy itself in order to force the Fishers, now faced with an obstructed view, to buy its air rights. The club's scheme to shoehorn a huge tower over it was just like the plan to build a skyscraper over Grand Central. Some years back, when word of the Grand Central tower surfaced, the city's preservation commission suddenly became interested in making the building a landmark. And that was precisely what happened here. In the spring of 1978, the commission zeroed in on the Racquet and Tennis Club. Since it was very unlikely that the club's tower would be allowed once the building was designated a landmark, Morse and others tried to stall the preservation commission. As Morse put it, "It is not landmarking that makes it possible to preserve a building; it is the money that makes that building economically viable."

The club, of course, was bluffing all along. Yet so real, authentic, and absolutely viable was the club's plan for the hotel tower that even the savvy Fishers fell for the ruse. In August 1978, the Fisher Brothers capitulated. Convinced that the club might really build the hotel, the Fishers agreed to pay five million dollars for the air rights. One year earlier they had been willing to pay only three hundred thousand. The five million dollars, not landmarking, Morse pointed out, is what really saved the club.

What difference would it have made if the club had been declared a landmark? Probably none. In all likelihood, Park Avenue Plaza, as the Fishers' new tower was called, would have been built anyway (although the club no doubt would have received less money for the air rights). And if not Park Avenue Plaza, some other towering steel structure somewhere nearby would have gone up instead. Perhaps the New York skyline would look a little different today. But my question is this: How is it possible to talk about preserving anything in the superheated world of modern property values? What painfully few possibilities there are to save any building—landmark or not—when the sky is sliced up into three-dimensional pieces of property and regularly sold to generate greater profits. Keep in mind that the club was saved only when it threatened to destroy itself by putting a huge mass of steel overhead. That is an odd way to go about saving something. "In Manhattan's Culture of Congestion," writes Rem Koolhaas, "destruction is another word for preservation." 46 The reverse, we shall see shortly, is also true.


"SELL A COUNTRY!" exclaimed the Shawnee Indian chief Tecumseh in 1810. "Why not sell the air, the clouds and the great sea, as well as the earth?" 47 Why not indeed. Tecumseh was far more prescient than he ever could have imagined.

morse holding proposed hotel
Morse holding proposed hotel. Racquet club and Park Avenue Plaza in background

The Shawnee chief died in 1813. But had he lived into the twentieth century, no doubt he never would have believed the air rights deal that resulted in the colossal Trump Tower, finished in 1983. One can just picture the amazement on Tecumseh's face as he stared up at the sleek, sixty-eight-story glass ziggurat. Beneath the glass—with its twenty-eight sides—are ninety thousand tons of reinforced concrete, one of the tallest such concrete structures on the face of the earth. The words "Trump Tower" in bronze letters two feet high are emblazoned over the Fifth Avenue entrance. Inside is a huge atrium with a waterfall and public garden encased in more than two hundred tons of imported Italian marble; plenty of the world's most expensive retail stores selling everything from designer baby shoes to gold watches; thirteen floors of office space; and over two hundred fifty condominiums. When it opened a decade ago, a one-bedroom condo sold for half a million dollars. On the elevator going up we explain to the chief that Tiffany, in the building next door, sold its air rights totaling five million dollars to Donald Trump, who parlayed them into this saw-toothed colossus.

If Trump Tower were a person, its diagnosis would be narcissistic personality disorder. It stands as a symbol of the American Dream come true. You can shop at the best stores the world has to offer; live, if you can afford it, in one of the tallest residential towers offering stunning views of the city; rub elbows with the stars, including Johnny Carson, Steven Spielberg, and Paul Anka, not to mention Donald Trump himself, who lives—where else?—in the penthouse, replete with an eighty-foot living room. "In America," Mayor Koch said at the tower's topping-off party, "if you have your own dollars you're allowed to build what you want." 48 That was a stunning statement coming from the city's highest official; but who had time to bother with zoning laws or other nonsense? Let the party begin. Trump had built his monument.

Trump Tower is more than just a towering symbol of twentieth-century materialism; it also symbolizes air's transformation into a commodity. For Donald Trump, bigger is always better. And that was precisely the logic that informed this project from the very start. "Size," as he put it some years later, "was a top priority." 49 Trump began in 1979 by buying the Bonwit Teller Building on Fifth Avenue and Fifty-sixth Street, a stately Art Deco structure made of limestone. Then he negotiated an agreement with Equitable Life, which owned the land underneath the site. But the key to the tower project was the Tiffany air rights. Using just the Bonwit site alone, Trump's architect, Der Scutt, estimated that a building with a maximum FAR of eight and a half could be built. 50 That translated into twenty stories with roughly two hundred thousand square feet of space. However, purchasing the air rights over the Tiffany building boosted the possible floor space by 50 percent. By the time he was through—buying air rights, assembling land, and, by his own admission, twisting the arm of the city planning commission into allowing him a bigger building—Trump had extracted a maximum FAR of twenty-one from the site. 51 It amounted to enough floor space to give him the sixty-eight-story tower he was after.

According to Trump, when he sat down with Walter Hoving of Tiffany to negotiate the air rights, he told him, "I'm offering you five million dollars . . . to let me preserve Tiffany. In return you're selling me something—air rights—that you'd never use anyway." 52 It was hard to quarrel with that logic. And Tiffany is still there on Fifth Avenue, to this very day, as proof of Trump's sincerity. The Bonwit Teller Building is gone, of course. If you call that preservation-minded, then consider Trump's treatment of the two bas-relief sculptures on the face of the old Bonwit building. Trump first promised them to the Metropolitan Museum of Art. But when he realized that properly removing the pieces would cost him half a million dollars, he had them jack-hammered. Thus, in the words of Robert Miller, owner of an art gallery across the street from Bonwit, "Trump destroyed the past to put his belligerent mark on the future." 53

Trump Tower may not be a typical New York City air rights deal, but we can learn from it nonetheless. From Trump's perspective, he was carrying out his duty as a modern-day developer, treating airspace as an instrumentality to build bigger and to realize greater profits. But the commodification of airspace also needs to be seen in historical perspective. Since the seventeenth century, Americans have been slowly transforming the earth—land, trees, water, fish, livestock, grain, and so on—into a set of commodities. The commodity we now call airspace is of a piece with this particular way of conversing with the planet. It is a mistake to think that it was inevitable—"a matter of time"—before airspace too would fall victim to capitalist property. Things did not have to turn out this way; Grand Central's air rights did not have to be leased; the zoning law did not have to permit air rights transfers; Trump Tower did not have to be built to such a height. Of course, that is all the world that could have been but is not. In the real world of twentieth-century New York, airspace has been pulverized; space has been brought, in the words of the geographer David Harvey, "under the single measuring rod of money value." 54 Nothing was more critical to the commodification of airspace than the rise of three-dimensional property. It was the language of property that made it possible to own and hence to exchange airspace freely. The symbolic technology of three-dimensional property—with its deterritorialized vision of real estate, its zoning boxes, and floor area ratios—allowed developers and lawyers to invest airspace with value, to conquer, own, and trade it.

And trade it they did. The Trump project marked the beginning of another New York building boom. Between 1979 and 1987, when the stock market crashed, developers redesigned Manhattan. Fifty-nine new office buildings alone went up, containing over thirty-eight million square feet of space, the equivalent of twenty-seven more Empire State Buildings. "In the last five years," reported the New York Times in 1986, Manhattan's developers "have moved so much air around, stacked it so high in such slender columns and then built within it that they have redrawn the skyline. 55

One of the more grandiose air rights ventures from this period is the CitySpire tower. The tower was the work of Bruce Eichner, developer and Harvard Business School graduate. Back in 1983, Eichner visited a dilapidated garage on West Fifty-sixth Street. On that site, he dreamed himself a tower thirty-four stories tall. Then he took a stroll around the block. What he found was the dilapidated City Center Theater. Once before, the city had sold air rights over one of its buildings. So Eichner negotiated a deal with the city to contribute six million dollars, half to the opera and half to the ballet. Culture in the city profited, and so, of course, did Eichner. The deal gave him enough air rights to build an additional twenty-six stories. By agreeing to contribute another five and a half million dollars to help renovate the theater itself (the zoning law allowed such a bonus), Eichner gained twelve more stories. When he was through he had built the city's highest residential building (one story higher than Trump Tower). "The land has expandable possibilities," Eichner remarked. "But you have to figure out creative ways to see value." 56

The eighties, that decade of unbridled capitalist optimism and entrepreneurial ambition, saw developers prowling all over the city in search of potential cash-register towers. 57 The city's churches, which tended to be built just a few stories high, came under particular scrutiny. In 1982, Rev. Evert Olson of the Church of Sweden sold the air rights over his four-story church on Forty-eighth Street for nearly a million dollars. "We hardly believed it," Christine Olson, the pastor's wife remarked. "In Sweden they just shook their heads and said it must be a miracle. Such things don't happen there." 58 But in New York, the miracle of turning air into cash occurred with some regularity.

Probably the most controversial air rights venture ever involved Park Avenue's famed St. Bartholomew's Church. Early in the eighties, the developer Howard Ronson revealed a plan to demolish the community house attached to the church and build a tower fifty-nine stories tall to cantilever over the church's beautiful Byzantine dome. The financially strapped church claimed it needed to sell the air rights for the tower to preserve itself. St. Bartholomew's Church had already been declared a landmark, so it needed permission from the city to build a tower that might affect its exterior. Had the possible receiving sites in the neighborhood not already been fully developed, St. Bart's might have been able to transfer its unused air rights elsewhere. Its leaders said the church had no choice but to let the tower be built. "The Christian church must be free to carry out the commands laid upon us by Jesus Christ," said Paul Moore, Jr., bishop of New York. "St. Bartholomew's seeks to carry out its ministry under those commands and cannot do so unless a secure new source of revenue can be found." Put simply: God Almighty demanded the tower. The plan raised a tidal wave of opposition from architecture critics, lawyers, planners, and churchgoers themselves. One theologically minded observer put it this way: "We know that heaven is not literally up. But modern man still considers that his prayers fly up. The idea that they would do so through desks, chairs, wastebaskets and ashtrays would be something of an anticlimax." 59

The landmarks commission turned down the tower plan. A second tower designed to forty-seven stories—described by one opponent as "monstrous, needle-esque"—was also rejected. Rebuffed twice, the church took its case all the way to the U.S. Supreme Court. In 1991, the court stayed the wrecking ball by refusing to hear the case. "We're disappointed, of course," explained senior warden Fletcher Hodges III. "Our next step will be looking into long-term fund-raising programs." 60

The threat of a tower over St. Bart's stands as a negative symbol of where the freedom to buy and sell three-dimensional property might take us. What the church sought in its tower scheme was something that most property owners want at one time or another: the freedom to do as they pleased with what was theirs. Yet as Lefebvre once observed, private property involves privation. 61 In this case, the church was seeking to deprive itself, its members, the world, of the past to realize a new future of towering steel and glass. There may be something to recommend such a future. Certainly the developer himself would benefit; the church too would gain financially. Perhaps some of that newfound wealth extracted from the sky's frontier might even dribble down to the poor and homeless found crawling up Park Avenue. But before we build any more such capitalist cathedrals, we should stop and rethink our priorities.

Airspace is unique in that it presents few problems compared to owning, say, underground water or land along a river. Airspace is an abstraction. And abstractions, because they are human artifacts, tend to be easier to own since, unlike land or water, we humans invented them. All that needed to happen was for the law of property to define airspace as a thing that was real enough to be owned. It is a tribute to the colonizing impulse at the heart of property law that it has been able to encroach on the space above the earth. Of course, the urban consequences of modern three-dimensional real estate might be something to question: the increasing density in the fashionable midtown area, the wind, the noise, the loss of sunlight. But consequences of a different sort are what concern us now. A world where virtually everything—airspace included—is transformed into property and exchanged is, to be sure, a very creative world. It is also an impoverished, even dangerous world as well, full of lots of fast-moving history. Recall that to preserve itself, the church was saying, it needed to destroy its architectural past. All it had come to mean to its parishioners and others—passersby wandering up Park Avenue, whoever—would come crashing down so the church could be saved. Saved? One wonders about the sanity of a culture in which the goal of preservation is reached only through destruction.



Notes:

Note 1: Quoted in Talk of the Town, "Tallest," New Yorker, Sept. 9, 1967, 38; also see Ernest Flagg, "The Singer Building, New York," Architects' and Builders' Magazine 40 (1908): 429-444, for an excellent description of the building.  Back.

Note 2: Quoted in "Tallest," 38. On the destruction of the building, also see "End of Skyscraper: Daring in '08, Obscure in '68," NYT, Mar. 27, 1968, 49, col. 1.  Back.

Note 3: Stephen Zoll, "Superville: New York—Aspects of Very High Bulk," Massachusetts Review 14 (1973): 493-494. The building was also called Merrill Lynch Plaza for a time.  Back.

Note 4: Karl Marx, "Speech at the Anniversary of the People's Paper," in The Marx-Engels Reader, ed. Robert C. Tucker, 2d ed. (New York: Norton, 1978), 577.  Back.

Note 5: Karl Marx and Friedrich Engels, "Manifesto of the Communist Party," ibid., 476. Also see Marshall Berman's brilliant book, All That Is Solid Melts into Air: The Experience of Modernity (1982; reprint, New York: Penguin Books, 1988), which inspired this chapter.  Back.

Note 6: He was paraphrasing Edward Coke. William Blackstone, Commentaries on the Laws of England, 1st ed. (1765-1769; reprint, Chicago: Univ. of Chicago Press, 1979), 2:17.  Back.

Note 7: Ibid., 18. Also see my discussion in chap. 4.  Back.

Note 8: However, there did evolve in Britain, at some point, the idea of "horizontal hereditaments," which consisted of a lateral division of space and essentially amounted to title to a bit of airspace. See James Edward Hogg, "The Effect of Tenure on Real Property Law," Law Quarterly Review 25 (1909): 184-185.  Back.

Note 9: See Robert R. Wright, The Law of Airspace (Indianapolis: Bobbs-Merrill, 1968), 36.  Back.

Note 10: Quoted in Stuart S. Ball, "The Jural Nature of Land," Illinois Law Review 23 (1928): 60n.  Back.

Note 11: Butler v. Frontier Telephone Co., 186 N.Y. 486, 79 N.E. 716, 718 (1906).  Back.

Note 12: Stuart S. Ball, "The Vertical Extent of Ownership in Land," University of Pennsylvania Law Review 76 (1928): 673.  Back.

Note 13: Laird Bell, "Air Rights," Illinois Law Review 23 (1928): 252.  Back.

Note 14: See James J. Brennan, "Lots of Air—A Subdivision in the Sky," Section of Real Property, Probate and Trust Law (Proceedings, Aug. 22-24, 1955, American Bar Center, Chicago), 25.  Back.

Note 15: Theodore Schmidt, "Public Utility Air Rights," Report of the Fiftysecond Annual Meeting of American Bar Association (Baltimore: Lord Baltimore Press, 1929), 839, 841. I borrow the term "deterritorialized" from Henri Lefebvre, The Production of Space, trans. Donald Nicholson-Smith (Oxford: Basil Blackwell, 1991), 347.  Back.

Note 16: William J. Wilgus, "The Grand Central Terminal in Perspective," Transactions of the American Society of Civil Engineers 106 (1941): 1003.  Back.

Note 17: Carl W. Condit, The Port of New York: A History of the Rail and Terminal System from the Grand Central Electrification to the Present (Chicago: Univ. of Chicago Press, 1981), 85, 97-98.  Back.

Note 18: Seymour I. Toll, Zoned American (New York: Grossman, 1969), 71; Zoll, "Superville," 494.  Back.

Note 19: Rem Koolhaas, Delirious New York: A Retroactive Manifesto for Manhattan (New York: Oxford Univ. Press, 1978), 13, 15.  Back.

Note 20: On the postindustrialization of New York, see John Hull Mollenkopf, "The Postindustrial Transformation of the Political Order in New York City," in Power, Culture, and Place: Essays on New York City, ed. John Hull Mollenkopf (New York: Russell Sage, 1988), 225-229; and Matthew Drennan, "The Decline and Rise of the New York Economy," in Dual City: Restructuring New York, ed. John H. Mollenkopf and Manuel Castells (New York: Russell Sage, 1991), 25-41.  Back.

Note 21: Samuel B. Kuckley, Rebuilding Manhattan: A Study of New Office Construction (New York: Real Estate Board of New York, 1972), 10t, 14t.  Back.

Note 22: Quote is from Condit, The Port of New York, 198; also see pp. 190-198 on the progress of the Grand Central air rights ventures between 1913 and 1932. On the Waldorf wine cellar, see Creighton Peet, "No Land? Then Build it on Air," Popular Mechanics, Jan. 1966, 134, 136.  Back.

Note 23: Lefebvre, The Production of Space, 325, 337.  Back.

Note 24: "World's Loftiest Tower May Rise on Site of Grand Central Terminal," NYT, Sept. 8, 1954, 1, col. 7.  Back.

Note 25: Kuckley, Rebuilding Manhattan, 22t, 23t.  Back.

Note 26: "Grand Central May Get a Tower," NYT, Sept. 21, 1967, 1, col. 4; "Breuer to Design Terminal Tower," NYT, Feb. 24, 1968, 30, col. 3; "Grand Central Tower Will Top Pan Am Building," NYT, June 20, 1968, 1, col. 4. As far back as 1911, there were plans to put a twenty-three-story office building on top of the terminal. It was never built. See William D. Middleton, Grand Central: The World's Greatest Railway Terminal (San Marino, Cal.: Golden West Books, 1977), 136.  Back.

Note 27: "Architecture: Grotesquerie Astride a Palace," NYT, June 20, 1968, 37, col. 3.  Back.

Note 28: Quoted in "New Tower Sought for Grand Central," NYT, Apr. 11, 1969, 1, col. 7.  Back.

Note 29: Quoted in "Landmarks Panel Bars Office Tower Over Grand Central," NYT, Aug. 27, 1969, 1, col. 4.  Back.

Note 30: Apparently, the Department of Buildings interpreted the zoning code from the 1920s to 1945 in such a way that builders were able to merge zoning lots and thus gain additional air rights over what the zoning law allowed. The practice ended in 1945, was resumed ten years later, and then stopped in 1959. See "Air Rights Ruling to be Tested Here," NYT, Mar. 30, 1958, sec. 8, 1, col. 1, and "Floor Area in New Skyscrapers May be Shrunk by Court Ruling," NYT, Jan. 11, 1959, sec. 8, 1, col. 5.  Back.

Note 31: "New Zoning Plan Offered to Guide Growth of City," NYT, Feb. 16, 1959, 1, col. 8; also see S. J. Makielski, Jr., The Politics of Zoning: The New York Experience (New York: Columbia Univ. Press, 1966), 70-106, for a history of postwar efforts to pass a new zoning law in New York.  Back.

Note 32: David Alan Richards, "Development Rights Transfer in New York City," Yale Law Journal 82 (1972): 338, 344-349.  Back.

Note 33: Ibid., 351.  Back.

Note 34: On TDRs, see the following works by John J. Costonis: "Development-Rights Transfer: A Proposal for Financing Landmarks Preservation," Real Estate Law Journal 1 (1972): 163-174; "Whichever Way You Slice It, DRT Is Here to Stay," Planning 40 (July 1974): 10-15; and Space Adrift: Landmark Preservation and the Marketplace (Urbana: Univ. of Illinois Press, 1974).  Back.

Note 35: In 1968, the New York Central Railroad and Pennsylvania Railroad merged to form the Pennsylvania New York Central Transportation Company, better known as Penn Central.  Back.

Note 36: Quoted in Richards, "Development Rights Transfer," 356; also see his discussion of the amendment on 353-358.  Back.

Note 37: Quoted in Eleanore Carruth, "Manhattan's Office Building Binge," Fortune, Oct. 1969, 115.  Back.

Note 38: Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 130-131 (1978). It was a six-to-three decision, with Justice Rehnquist writing the dissenting opinion.  Back.

Note 39: 438 U.S. at 137. For an analysis of the opinion that advocates that the supreme court adopt a more modern concept of property (in keeping with the need to buy and sell air freely), see Mary B. Spector, "Vertical and Horizontal Aspects of Takings Jurisprudence: Is Airspace Property?" Cardozo Law Review 7 (1986): 489, 510-518. Also see Norman Marcus, "The Grand Slam Grand Central Terminal Decision: A Euclid for Landmarks, Favorable Notice for TDR and a Resolution of the Regulatory/Taking Impasse," Ecology Law Quarterly 7 (1978): 731-752.  Back.

Note 40: Quotes are from "Tower Over Grand Central Barred as Court Upholds Landmarks Law," NYT, June 27, 1978, 1, col. 1. The subsequent history of the terminal's vast reserve of unused air rights is as follows: Philip Morris had already bought—in the late seventies—75,000 square feet for the construction of a new building at Park and Forty-second Street. Then, in the following decade, a real estate partnership owned by Wall Street's First Boston Company negotiated a deal for 1.5 million square feet, the biggest air rights sale in history. First Boston planned to use about half of those rights to build a skyscraper at 383 Madison Avenue, a seventy-four-story tower to replace a much shorter (14-story) office building dating from 1923. The tower was never built. A dispute surfaced over whether Penn Central could legally transfer its terminal air rights to the tower site. Under the zoning rules, such a transfer had to follow a contiguous chain of landownership. Back in the seventies when the railroad was facing bankruptcy, it had sold a large number of properties in the Grand Central area. Still, the railroad argued that it retained title to the subsurface lots, allowing it to transfer the air rights from the terminal up to Madison and Forty-sixth Street, the site of the new tower. The City Planning Commission ruled against the railroad in 1989. By selling its property, the commission explained, the company had broken the chain of title necessary to transfer the unused air rights. Sylvia Deutsch, chairperson of the planning commission, explained that approving the sale would have far-ranging consequences. "One could establish a link or a chain going past Yonkers, conceivably," she remarked. "If you establish the principle that a subsurface lot qualifies as a zoning lot, then one could establish chains that would travel in many directions. Certainly, all the way up Park Avenue." The decision was recently upheld by the New York Supreme Court. See "Panel Rejects Plan to Shift Grand Central's Air Rights," NYT, Aug. 24, 1989, sec. 2, 3, col. 5. Also see, "Plan for Tower Uses Air Rights of Rail Station," NYT, Sept. 17, 1986, sec. 2, 1, col. 4, and "A Battle Looms Over Grand Central's Air Space," NYT, July 6, 1989, sec. 2, 3, col. 2.

Most recently, the terminal's reserve of air rights has interfered with the restoration of the deteriorating physical condition of the terminal itself. The Cincinnati-based Penn Central Corporation, which owns the terminal and its air rights, has been leasing the terminal to the Metropolitan Transportation Authority (MTA), which in turn allows its subsidiary, Metro-North, to operate the terminal. But the MTA has only reluctantly carried out restoring the declining terminal since any improvements made ultimately would redound to the financial advantage of the building's owner, i.e., Penn Central. Also, the MTA has shied away from buying the terminal itself because the building's enormously lucrative store of air rights would add tens of millions of dollars to the asking price of the building. So there has been pressure on the City Planning Department to come up with a zoning plan that would allow Penn Central to capitalize on its air rights. In an official statement made in 1992, Penn Central said, "The city and community should not misunderstand Penn Central's resolve, and that is to realize the value of the air rights, which value has been denied it for so long." (Quoted in "Grand Central Owner Seeks Broader Use of Air Rights," NYT, May 3, 1992, sec. 10, 1, col. 5.) Special zoning options that would help Penn Central find a place for its air rights have since been proposed by both the corporation and city planners. But as of December 1993, Penn Central and the MTA were getting ready to sign a new long-term lease that would give the MTA effective control of the building and forbid Penn Central from developing the airspace over the landmark. The new lease will allow the MTA to push ahead with its planned renovations. Still, however, even under the terms of the new lease, Penn Central will retain ownership over the terminal's unused air rights. See "Transit Agency Seeking to Buy Grand Central," NYT, Aug. 30, 1990, sec. 2, 1, col. 5, and "Deal Reached on Restoration of Grand Central Terminal," NYT, Dec. 21, 1993, 1, col. 1.  Back.

Note 41: Quoted in "Planners Seek to Shift Custom House Air Rights," NYT, Apr. 9, 1970, sec. 8, 56, col. 4.  Back.

Note 42: They included Amster Yard, the Villard Houses, the Philip Morris Building, and the Continental Center.  Back.

Note 43: David Alan Richards, "Transferable Development Rights: Corrective, Catastrophe, or Curiosity," Real Estate Law Journal 12 (1983): 26, 43-48. The zoning law was amended in 1977, Richards notes, to "facilitate the private sector transfer process." On the zoning law change, see Terrence Kennedy, "New York City Zoning Resolution Section 12-10: A Third Phase in the Evolution of Airspace Law," Fordham Urban Law Journal 11 (1983): 1039-1056.  Back.

Note 44: Lefebvre, The Production of Space, 338.  Back.

Note 45: All quotes below are from C. Ray Smith, "Squaring Off on Park Avenue: A Gentlemen's Club K. O.'s the Real-Estate Kings," New York, Nov. 27, 1978, 47-52.  Back.

Note 46: Koolhaas, Delirious New York, 126.  Back.

Note 47: John Bartlett, Familiar Quotations: A Collection of Passages, Phrases, and Proverbs Traced to Their Sources in Ancient and Modern Literature, ed. Justin Kaplan, 16th ed. (Boston: Little, Brown and Co., 1992), 370.  Back.

Note 48: Quoted in Sy Rubin and Jonathan Mandell, Trump Tower (Secaucus, N.J.: Lyle Stuart, 1984), 9.  Back.

Note 49: Donald J. Trump with Tony Schwartz, Trump: The Art of the Deal (1987; reprint, New York: Warner Books, 1989), 163.  Back.

Note 50: "If you want sunlight, move to Kansas" is what Der Scutt told one tower opponent. Quoted in Rubin and Mandell, Trump Tower, 27.  Back.

Note 51: Regarding the city planning commission, Trump explains, "If you want Bonwit to return to Fifth Avenue, I told them, you're going to have to give me my zoning." Trump with Schwartz, Trump, 170.  Back.

Note 52: Quoted in Trump with Schwartz, Trump, 154.  Back.

Note 53: Quoted in Rubin and Mandell, Trump Tower, 44.  Back.

Note 54: David Harvey, The Urban Experience (Baltimore: Johns Hopkins Univ. Press, 1989), 177.  Back.

Note 55: "Trading Air to Build Towers," NYT, Feb. 21, 1986, sec. 4, 1, col. 3.  Back.

Note 56: Quoted in "Trading Air to Build Towers."  Back.

Note 57: I borrow here from Marc Reisner who uses the term "cash-register dams." See Marc Reisner, Cadillac Desert: The American West and Its Disappearing Water (1986; reprint, New York: Penguin Books, 1987).  Back.

Note 58: Quoted in "$1 Million Air Sale Proves Godsend to Church," NYT, May 3, 1982, sec. 2, 3, col. 3.  Back.

Note 59: Quotes are from "Battle of St. Bart's Goes to Landmarks Panel," NYT, Feb. 1, 1984, sec. 2, 1, col. 3.  Back.

Note 60: Quoted in "Court Ends Tower Plan at St. Bart's, NYT, Mar. 5, 1991, sec. 2, 1, col. 6. On the design of the second tower, see "A Smaller Office Tower Is Planned by St. Bart's," NYT, Dec. 21, 1984, sec. 2, 3, col. 5.  Back.

Note 61: Lefebvre, The Production of Space, 338.  Back.


Join UC Press


Members receive 20-40% discounts on book purchases. Find out more