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February 5, 2015

Hon. Scott M. Stringer
Comptroller of the City of New York
One Centre Street
New York, N.Y. 10007
Dear Comptroller Stringer,
I am writing to you today because I have noticed that your office has been very proactive to date
in preempting litigation and liability before the risk to taxpayers can grow exponentially.
Yesterday I testified at a New York City Department of City Planning hearing to consider zoning
text changes that the City has proposed for an area of East Midtown known as the “Vanderbilt
Corridor” and a Special Permit that the real estate developer SL Green is seeking for a new high
rise, One Vanderbilt.
At the hearing, I provided my considered judgment as a legal scholar is that the proposed rezoning
constitutes a taking of Grand Central’s property rights that would be illegal and indeed
unconstitutional in the absence of what a court would determine to be just compensation.
The City, inexplicably, has not asked SL Green – the principal beneficiary of the rezoning – to
indemnify the taxpayers for any potential just compensation owed to Grand Central. SL Green
may wish to persuade the City that indemnification is unnecessary because the danger of an
adverse judicial decision is low. But if the risk is so small, then SL Green should be more than
willing to provide indemnification. And if the risk is not low, then the City truly does need to
protect itself and its taxpayers with indemnification from SL Green.
Grand Central’s property rights were clearly established by the United States Supreme Court in
the landmark Penn Central decision of 1978. That decision upheld New York’s refusal to approve
construction plans for a 50-story office building over Grand Central without paying just
compensation, noting the ability of Grand Central’s owners to transfer their development rights to
at least eight parcels in the vicinity of Grand Central, which ensured that “the rights afforded are
valuable.”
The latest proposal would renege on the bargain upheld in the Penn Central case by destroying the
value of Grand Central’s transferable development rights. The evidence suggests that the taxpayers
face as much as $1 billion in legal liability should my view prevail in subsequent litigation.
City Planning Chairman Carl Weisbrod and the attorneys hired by SL Green, the beneficiary of
the rezoning, disagree with my conclusion. While I am convinced of my position, no one can
predict with certainty how a court would rule, and that is the crux of the matter with which you are
now confronted.
My own view is that there is a substantial risk that a court will find a taking – and thus that the
taxpayers will be required to pay just compensation. Although I was retained by Boies, Schiller
& Flexner LLP, counsel to Grand Central’s owner, to provide my best legal judgment, I made clear
to the client that I would publicly state my independent conclusions as a constitutional scholar and
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could not promise in advance what those conclusions might be. Some might nonetheless choose
to discount the dangers to which I testified at yesterday’s hearing on the proposed rezoning. If they
want to underestimate my commitment to say only what I believe to be true, or to mistrust my
expertise and experience, that’s their prerogative – but why put the taxpayers at risk if they turn
out to be wrong?
A guarantee from SL Green costs the City nothing and provides a basic layer of vital protection.
If the Law Department is right and our claim fails, no harm is done in having sought
indemnification. If they are wrong, a great harm will be averted. In other words, the City has
nothing to lose and everything to gain by seeking indemnification for the One Vanderbilt Special
Permit associated with the Vanderbilt Corridor rezoning. As the steward of the City’s finances and
watchdog for the taxpayers, you are in a unique position to bring a measure of common sense to
this process. Your clear desire to protect the taxpayers at no risk to the City should make this
decision fairly straightforward. I am not asking you to settle with Boies Schiller’s client or admit
liability in any way. I am asking only that if the zoning does result in liability, then that liability
should fall on the private party benefitting, not on the City.
In short, I am asking you to take a very simple step to protect the taxpayers. Require
indemnification. Avert a significant potential harm. I realize that others see the potential harm
differently. But I can’t understand why they wouldn’t bother to take the basic step of protecting
the taxpayers on the chance that I happen to be right.
Thank you for your consideration.
Respectfully,

Laurence H. Tribe
Carl M. Loeb University Professor, Harvard University,
and professor of law, Harvard Law School

University title and affiliation included for identification purposes only; the views expressed are solely those of the
author as a scholar of constitutional law.

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