'Times' to Commoners: Go Elsewhere

When The New York Times and Forest City Ratner Companies open their grand new office building on Eighth Avenue, it won't have a Taco Bell, McDonald's, Wendy's, or Nathan's, because they are specifically forbidden under terms of a land deal with the state. But a Starbucks or Cosi would be just fine.

The lease, which is on file with the Securities and Exchange Commission, also bars renting space in the 52-story building for "a school or classroom or juvenile or adult day care or drop-in center." It forbids "medical uses, including without limitation, hospital, medical, or dental offices, agencies, or clinics." It gives the New York Times Company "the sole and absolute discretion" to reject United Nations or foreign-government offices, including any "considered controversial" or that are potentially the focus of demonstrations. It bans any "employment agency (other than executive-search firms) or job training center" and auction houses, "provided, however, the foregoing shall not apply to high-end auction houses specializing in art and historical artifacts." Discount stores are forbidden. And the deal bars "a welfare or social-services office, homeless shelter or homeless assistance center, court or court-related facility."

In fact, any government office is excluded from the building if it would attract people who arrive "without appointment."

There goes the neighborhood: Street scenes outside the Times castle photo: Kate Englund

Lease restrictions that exclude the public may not be unusual in luxury office buildings, but there is an irony in this case. The Pataki administration, acting on behalf of the New York Times Company, condemned the property for a so-called "public purpose." This is the standard the Fifth Amendment sets for the state to invoke the immense power of eminent domain.

At one time, "public purpose" usually meant a highway, bridge, or utility service�something the public was actually allowed to use. But now it's routine for the courts to declare it a "public purpose" for the state to seize privately owned land so that another private owner can erect a very private office building where the public can't even buy an inexpensive taco. In this case, the services many New Yorkers most need�health, education, job placement�are officially locked out of a building that will be heavily subsidized by city taxpayers. And, it should be noted, this is a site with unique public access, located across the street from the Port Authority Bus Terminal and upstairs from the city's subway crossroads.

"Our new building will be an attractive and welcome addition to Times Square for all New Yorkers to enjoy," Times spokesperson Toby Usnik said in an e-mail interview after the company was asked if it had any comment on these provisions in its deal with Forest City and the Empire State Development Corporation. "We have worked with our partner, Forest City Ratner Companies, to define general categories of tenants that will complement our new building, including food and retail establishments with broad appeal. These are common types of establishments that New Yorkers and visitors alike now expect to find when visiting the new Times Square."

Such notions of a "public purpose" could well change as a result of outrage across the political spectrum over the U.S. Supreme Court's 5-4 ruling on June 23 that allowed the city of New London, Connecticut, to seize homes for private development. While the court ruled in favor of condemnation (and in 2003, also declined to hear a case against the Times project), the majority was troubled enough by the apparent unfairness to note that states can restrict the power of eminent domain, and that many have done so.

photo: Kate Englund

This has spurred a move across party lines in Albany and other statehouses to limit government's ability to coerce land deals for private developers. Assemblyman Richard Brodsky, a Westchester Democrat, proposed a bill, for example, to make condemnations more costly for the private developer and create a commission to review the "public purpose" standard. The bill would provide for displaced renters to be paid one and a half times their annual rent; property owners also would be compensated at one and a half times the market value of their property, according to Jim Malatras, legislative director for Brodsky, who chairs the Assembly's Committee on Corporations, Authorities and Commissions.

It comes too late to help the owners of the 16-story office building, student dormitory, business school, hat shop, and fabric store bulldozed to make way for the Times headquarters. And the Brodsky bill doesn't quite come to grips with the key issue: Exactly what "public purpose" should allow government the right to take your home or the place where you work? But it's a start.

One yardstick for deciding this tricky question can be found in a concurring opinion Justice Anthony Kennedy issued when he cast the swing vote in favor of the bulldozers in the New London case. He wrote that deals "intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits," should be forbidden.

Condemnation of private property for private development in New York City is often done as part of a no-bid deal that favors politically powerful businesses�companies that are major campaign contributors, hire politically connected lobbyists, or in the case of the Times, are media companies with enormous clout.