The Expansion of Penn Station: A Story of Eminent Domain, Landmark Status, and James Harden

Josef Khaimov

1. Introduction

It’s November 30, 2021, at the Barclays Center. The Knicks are visiting their cross-town rivals, the Brooklyn Nets. Early in the first quarter, James Harden sizes up his defender with a dribble combination; he wants to create space for himself. Suddenly, Harden steps back and hits his patented three-pointer. The move is virtually unstoppable—even if the defender sees it coming. Little do the players and thousands of other New Yorkers know that the state government has set in motion an unstoppable move of its own—one that will reshape the ground upon which they stand.

A few days earlier, New York Governor Kathy Hochul unveiled a plan to transform Penn Station and revitalize the surrounding area.^[1] The plan called for building a new 250,000 square-foot facility, encompassing new amenities such as restaurants, and an underground connection to the 34 St-Herald Square subway station.^[2] The purpose of the gargantuan project was to improve the functionality and track capacity of Penn Station.^[3] Track capacity and functionality are critical to Penn Station because every 90 seconds, a thousand people either arrive at or depart from our nation’s busiest railway station.^[4] To bring the plan to fruition, Penn Station would have to expand.^[5] However, that expansion would require the acquisition of some of the hottest real estate in the world.^[6] More troublingly, the owners of that real estate are no pushovers—they include the Archdiocese of New York and a slew of other powerful organizations.^[7] To effectuate the expansion, it would have to displace those people and secure the land necessary to improve Penn Station.^[8]To mere mortals, this task is impossible. The government, though, has a signature move even deadlier than James Harden’s step-back three—eminent domain.^[9]

2. Rules of Eminent Domain

Eminent domain is the process by which the government can take private property for “just compensation” and “convert it for public use”.^[10] In New York’s jurisprudence, the eminent domain procedure is spelled out in the New York Eminent Domain Procedure Law §§201-208 (NYEDPL). First, under §201, the condemner, a.k.a. the government, must hold public hearings.^[11] The purpose of these hearings is to inform the public of their plan and to review the current use of the property in question.^[12] Under §202, the government must notify the public about the hearing.^[13] The notice requirement can be fulfilled by publishing the details about the hearing in five consecutive daily newspaper editions.^[14] Furthermore, the government must personally serve this information to all potentially-affected property owners.^[15] Critically, the failure to inform those property owners personally does not invalidate the ultimate taking of their property.^[16] Once the meeting is set, §203 obliges the condemner to explain the purpose of the public project, the proposed location of the project, and any alternative locations they are considering.^[17] After the plan is presented, the floor is opened for the public to ask questions or make comments orally and in writing.^[18]

After the public hearings, §204 gives the condemner 90 days to gather its findings and make decisions.^[19] Once a decision has been reached, it must be published in widely-read newspapers.^[20] The publications should include details on the purpose and benefits of the project, the location of the project and the rationale behind that choice, potential environmental impacts, and any other relevant information.^[21] Additionally, the condemner has to personally inform the potentially-affected property owners again.^[22] The personal notice must contain information about the decision, inform the landowner of the 30-day period to challenge the decision in the appellate division of the local supreme court, and that copies of the decision are available for free.^[23]

Alterations to the plan can still be made after the decision is published and the property owners are informed.^[24]Under §205, if new information arises after the decision is made, the condemner can make necessary adjustments without further hearings. ^[25]Best of all, the alteration will have no impact on the validity of the acquisition.^[26] The next section, §206, contains exceptions to some of the procedures described above.^[27] However, assuming the normal process is followed, §207 outlines the most exciting part of the article—judicial challenges.^[28] NYEDPL §208 sets the stage by specifying that the challenge may only be brought before the appellate division of the relevant supreme court.^[29]

If eminent domain is the government’s version of an offensive move, then §207 outlines the last resort for defending against it. First, the potentially-affected property owners have 30 days to challenge the condemner’s decision in the relevant appellate division court.^[30] To initiate the challenge, the appellant must do two things: (1) file a petition with the court; and (2) demonstrate that he asked the condemner to provide records of the decision, along with the process by which the decision was made.^[31]

Once the request for the records is made and the records are delivered to the court, the court will begin its analysis.^[32] The court’s analysis consists of four queries.^[33] The first query is whether the condemner followed applicable state and federal laws.^[34] If they did, the next question is whether the condemner has legal authority to make the disputed acquisition.^[35] If that question is answered in the affirmative, then the court considers whether the condemner properly followed the procedures described in this section.^[36] Finally, the court will consider whether the project serves a public use or benefit.^[37]

3. The Current State of Affairs

Currently, the battle lines for the area around Penn Station are being drawn. On one side are some of the biggest railroads in New York including Amtrak and the Metropolitan Transportation Authority (MTA).^[38] The railroads want to double the number of trains that cross the Hudson River during the morning and evening rush hours.^[39] Construction has already begun on “Gateway,” a tunnel that would add new tracks to Penn Station for the first time since its original iteration was completed in 1910.^[40] The railroads have also assembled an advisory group to consider the options for expanding Penn Station.^[41] “We need to reach beyond [the boundaries of Penn Station and Madison Square Garden],” said one Amtrak official.^[42]

The opposition insists that expansion is unnecessary. According to their representatives, the railroads ought to turn Penn Station (Penn) into a “through-running” station to become more efficient.^[43] Through-running is an alternative to the way trains currently travel to and from Penn Station. Today, trains from Long Island arrive at Penn Station and drop off or pick up passengers along the way. Once they complete the trip, they turn around and do the same thing, but in the other direction. Under a through-running system, the trains would not turn around after Penn Station. Instead, they would continue all the way to New Jersey.^[44] The opposition describes through-running as an “alternative that allows you to increase capacity without having to demolish a block and a half of Manhattan [and the 150-year-old church that stands upon it].”^[45]

When James Harden uses a dribble combination, he’s looking to create space. That space allows him to separate from his defender and set up his signature step-back three-pointer. The defender’s job is to deny Harden the space he’s trying to create. Analogous to Harden’s space-creating maneuvers, the railroad officials’ public commentary and advisory boards are meant to drum up public opinion momentum for the expansion of Penn Station. If the railroad companies are successful, they can set the stage for the government’s signature move—eminent domain. The opposition plays the role of the defender. They must prevent the railroads from getting the public support they seek. If the opposition fails, the risk of eminent domain skyrockets while their hopes of a successful defense collapse. The defenders have a weapon of their own to prevent the seizure and demolition of their cherished block, but it cannot be illuminated without the story of the original Penn Station.

4. The Fall of the Original Penn Station

The construction of Penn Station began with finding materials befitting of its stature. About 20 miles east of Rome lies the city of Tivoli. In antiquity, travertine stone was excavated from Tivoli’s quarries and transported to Rome, where it served as the primary building material for the Coliseum.^[46] Centuries later, those quarries would provide building material for another empire’s icon—the original Penn Station.^[47]

Penn Station was a marvel when it opened in 1910. The station’s façade had columns in the style of the Greek Acropolis.^[48] The waiting room was an ode to Rome’s Baths of Diocletian; it had a 150-foot-high ceiling.^[49]

Within the next half century, that marvel would become a case study in entropy. The disintegration started shortly after the Second World War, when a decline in ridership brought financial hardship upon the Pennsylvania Railroad Company.^[50] To cover the shortfall, the station opened its majestic halls to advertisements. The advertisements, in turn, slowly killed the carefully crafted aesthetic of the Midtown colossus. Gaudy billboards advertising cars hung in the once-pristine 7th Avenue shopping area.^[51] A giant digital Coca-Cola (Coke) clock was erected in the middle of the concourse.^[52] The Coke clock’s digital display clashed with the hanging pendant clocks’ Roman numerals.^[53] The style clash hardly mattered, though, because the pendant clocks had advertisements hanging from them too.^[54]

Unfortunately, the advertisements failed to bring in the revenue needed to preserve the station’s grandeur. Neglect turned the granite walls from pink to grey.^[55] The artwork of Jules Guerin disappeared under layers of filth.^[56] Even the travertine stone from the Tivoli quarry became tainted with nicotine stains, changing the stone’s color.^[57]

Unable to maintain the building, the Pennsylvania Railroad Company opted to demolish it.^[58] At nine o’clock on the morning of October 29, 1963, electric jackhammers began picking apart the granite outside the 33rd street entrance.^[59] A group of architects protested behind the workmen.^[60] Their voices were drowned out by the jackhammers.^[61]The travertine stone was torn down along with the rest of the building.^[62] Today, the imported Italian rocks share a resting place with all the other rubble from the old Penn Station: the New Jersey Meadowlands.^[63] That cloudy October day marked the death of a monument to classical America.^[64] To the workmen and the destructive forces of entropy that preceded them, it was just another job.^[65] Soon, only the underground tracks would remain from the majestic building.^[66] In its place, a “futuristic sports palace,” Madison Square Garden, would be built.^[67]

Although the protesting architects went unheard under the rattle of jackhammers, their pleas caught the ear of City Hall. In 1965, the New York City Landmarks Preservation Law was enacted.^[68]

5. Preserving Landmarks

The Landmarks Preservation Committee (LPC) was formed with a simple purpose: to prevent the rot, decay, and destruction of New York’s architectural heritage while preserving the ability of the landowners to manage them.^[69] The commission designates buildings that possess special historical or aesthetic value as landmarks.^[70] Once the designation is made, the City’s Board of Estimate may modify or disapprove of the designation based on whether the designation fits within the Board’s plans.^[71] The owner may seek judicial review of the final decision.^[72]

A final designation of landmark status imposes obligations on the landowner. He must keep the exterior of the building in good condition and he must gain the approval of the commission before he makes changes.^[73] If he opts to seek permission to modify the building, the owner has three options. First, he can apply for a “certificate of no effect,” which would allow him to modify the building so long as the modifications do not affect the architecture of the landmark.^[74] Second, he may apply for a “certificate of appropriateness,” which would allow him to construct upon the landmark so long as the construction does not disturb the architecture. Finally, he may apply for a “certificate of appropriateness on the ground of insufficient return,” which could grant him tax benefits in return for the building being kept as-is.^[75]

6. The LPC Saves Grand Central

On the other side of town from Penn Station stands Grand Central Terminal. Completed in 1913, Grand Central is a 70-acre behemoth that dwarfs Penn Station in size and perhaps in grandeur.^[76] Built in French beaux-art fashion, the station summons a lack of adjectives in those who try to describe its impressiveness. The exterior houses an array of Roman-style carvings that surround Transportation, a gigantic statue designed by the world-renowned Jules Félix Coutan.^[77] The interior is no less magnificent. The ceiling of the concourse mimics the constellations as they glow around a gold band symbolizing the equator.^[78]

In 1967, Grand Central was designated a landmark of New York City.^[79] In 1968, the owners of Grand Central concocted a plan greedy enough to make Mr. Krabs blush—they were going to slap a gray, blocky 53-story office building on Grand Central’s roof and rent it out for millions of dollars.^[80] The proposed office building, Breuer II, was to be built at the expense of the 42nd street façade.^[81] When applying for a certificate of appropriateness, the owners pitched Breuer II and the partial demolition of the façade as an effort to protect Grand Central.^[82]

The Commission expressed the following sentiment with respect to the “protection” scheme:

[We have] no fixed rule against making additions to designated buildings—it all depends on how they are done . . . But to balance a 55-story office tower above a flamboyant Beaux-Arts facade seems nothing more than an aesthetic joke. Quite simply, the tower would overwhelm the Terminal by its sheer mass. The ‘addition’ would be four times as high as the existing structure and would reduce the Landmark itself to the status of a curiosity.^[83]

Needless to say, the application was rejected and the owners filed suit, arguing that the space above the building was taken from them by the government without just compensation.^[84] The crux of the owners’ argument was that by denying them the right to build the extension, the government was arbitrarily depriving them of the rights to the space above Grand Central, and thereby singling them out to endure financial hardship.^[85] The Supreme Court rejected the owners’ claims and held that “[the] New York City law embodies a comprehensive plan to preserve structures of historic or aesthetic interest . . . in the city.”^[86]

Ultimately, the owners failed to bring their plan to life. The jackhammer demolition of Grand Central Terminal was stopped before it could begin. In fact, Grand Central is still the magnificent Beaux-Arts marvel it was over a century ago. Looking to the future, the story of Grand Central’s preservation could play an important role in preventing the expansion of Penn Station.

7. Denying the Ball

James Harden’s distance from his defender is irrelevant in only one circumstance—if Harden does not have the ball. Without the ball, it makes no difference how much space is between Harden and his defender because the space is useless if there’s no chance of him shooting. Similarly, the public opinion momentum gathered by the supporters of Penn Station’s expansion will be irrelevant if a building in the expansion’s path is designated a landmark by the LPC.

Several candidates for landmark status exist in the proposed expansion area.^[87] Among them is the St. John the Baptist Roman Catholic Church.^[88] The Gothic-style sandstone church was erected in 1872 and has only slightly been changed since then.^[89] Unfortunately, it would be torn down if the plan were to proceed.^[90]

To firmly secure the church’s preservation, opponents of expansion would have to convince the Commission to designate it a landmark. Although the St. John the Baptist Church does not currently have landmark status, a New York-state funded impact study concluded that the church is eligible for such a designation.^[91] Interestingly, church leaders have opposed the potential landmark designation because it would restrict the church’s own plans for a potential expansion.^[92]

Instead, the church has opted to fight a determined battle for self-preservation in the media.^[93] As part of its strategy, the church hired a consultant group to argue that the plan to destroy the building is a misguided attempt to make a quick buck.^[94] According to the church and its allies, in a city full of unused office space, the historic building will be torn down and replaced with even more unnecessary offices—an outcome that will only benefit developers.^[95] The church’s leadership has a clear message to those who wish to see its demise: “[m]ove us, go around us or put us in a new building and pay for it all.”^[96]

The church’s confidence in its survival is well-founded. In 2016, KBS Capital acquired an 80% interest the church and planned to spend over 14 million dollars to convert the space into a neon-laden modern shopping center.^[97]Renderings of the planned mall depicted a flashy façade advertising Under Armour products where the sandstone house of worship currently stands.^[98] The mall was never built and the church remains where it has been for over a century. Despite the church’s lack of landmark status, its long life, savvy media strategy, and the option of pursuing the designation at a later time may help it cheat death once again.

Ultimately, a decision will need to be made as to whether Penn Station expands and in which direction. In the meantime, the legal world will watch the battle for positioning between the iron-clad determination of the railroad companies and the steadfast faith of the church’s leadership.

---

^[1] Penn Station Reconstruction, METROPOLITAN TRANSPORTATION AUTHORITY (Oct. 5, 2023), https://new.mta.info/project/penn-station-reconstruction.

^[2] Id.

^[3] Denis Slattery, Cuomo Backs Plan to Acquire Block South of Penn Station to Increase Track Capacity, N.Y. Daily News (Jan. 6, 2020), https://www.nydailynews.com/2020/01/06/cuomo-backs-plan-to-acquire-block-south-of-penn-station-to-increase-track-capacity/.

^[4] The World’s Busiest Train Stations, Railway Technology (Aug. 8, 2012), https://www.railway-technology.com/features/featureworlds-busiest-train-stations/.

^[5] Slattery, supra note 3.

^[6] Id.

^[7] Id.

^[8] Id.

^[9] N.Y. Em. Dom. Proc. Law § 202 (McKinney 2023).

^[10] Eminent Domain, Cornell Law School Legal Information Institute, https://www.law.cornell.edu/wex/eminent_domain (last visited Oct. 7, 2024).

^[11] N.Y. Em. Dom. Proc. Law § 201 (McKinney 2023).

^[12] Id.

^[13] N.Y. Em. Dom. Proc. Law § 202 (McKinney 2023).

^[14] Id.

^[15] Id.

^[16] Id.

^[17] N.Y. Em. Dom. Proc. Law § 203 (McKinney 2023).

^[18] Id.

^[19] N.Y. Em. Dom. Proc. Law § 204 (McKinney 2023).

^[20] Id.

^[21] Id.

^[22] Id.

^[23] Id.

^[24] N.Y. Em. Dom. Proc. Law § 205 (McKinney 2023).

^[25] Id.

^[26] Id.

^[27] N.Y. Em. Dom. Proc. Law § 206 (McKinney 2023).

^[28] N.Y. Em. Dom. Proc. Law § 207 (McKinney 2023).

^[29] N.Y. Em. Dom. Proc. Law § 208 (McKinney 2023).

^[30] N.Y. Em. Dom. Proc. Law § 207 (McKinney 2023).

^[31] Id.

^[32] Id.

^[33] Id.

^[34] Id.

^[35] N.Y. Em. Dom. Proc. Law § 207 (McKinney 2023).

^[36] Id.

^[37] Id.

^[38] Patrick McGeehan, Plans to Rebuild Penn Station and Expand Gateway Program Move Forward, N.Y. Times (Oct. 2, 2024), https://www.nytimes.com/2024/10/02/nyregion/penn-station-gateway.html.

^[39] Id.

^[40] Id.

^[41] Id.

^[42] Id.

^[43] Id.

^[44] Patrick McGeehan, Plans to Rebuild Penn Station and Expand Gateway Program Move Forward, N.Y. Times (Oct. 2, 2024), https://www.nytimes.com/2024/10/02/nyregion/penn-station-gateway.html.

^[45] Id.

^[46] Myles Zhang, Excavating Old New York Penn Station, https://www.myleszhang.org/2020/07/09/penn-station/ (last visited Oct. 5, 2024).

^[47] Id.

^[48] Id.

^[49] Id.

^[50] Michael Kimmelman, Longing for the Old Penn Station? In the End, It Wasn’t So Great, N.Y. Times (Dec. 30, 2015), https://www.nytimes.com/2015/12/31/nyregion/longing-for-the-old-penn-station-in-the-end-it-wasnt-so-great.html.

^[51] Id.

^[52] Id.

^[53] Id.

^[54] Id.

^[55] Kimmelman, Supra note 50.

^[56] Id.

^[57] Id.

^[58] Id.

^[59] Martin Tolchin, Demolition Starts at Penn Station; Architects Picket, N.Y. Times (Oct. 29, 1963), https://timesmachine.nytimes.com/timesmachine/1963/10/29/80476709.html?pageNumber=1.

^[60] Id.

^[61] Id.

^[62] Id.

^[63] Kimmelman, supra note 50.

^[64] Tolchin, supra note 59.

^[65] Id.

^[66] Zhang, supra note 46.

^[67] Tolchin, supra note 59.

^[68] New York City Landmarks Law, N.Y. Preservation Archive Project, https://www.nypap.org/preservation-history/new-york-city-landmarks-law (last visited Oct. 16, 2024).

^[69] Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 110 (1978).

^[70] Id.

^[71] Id. at 111.

^[72] Id.

^[73] Id. at 112

^[74] Id.

^[75] Id.

^[76] Sam Roberts, The Birth of Grand Central Terminal, 100 Years Later, N.Y. Times (Jan. 19, 2013), https://www.nytimes.com/2013/01/20/nyregion/the-birth-of-grand-central-terminal-100-years-later.html.

^[77] Penn Cent. Transp. Co., 438 U.S. at 115.

^[78] Id.at 116.

^[79] See id.

^[80] See id.

^[81] Id. at 117.

^[82] See id.

^[83] See id. at 118.

^[84] Id. at 123 (“We need only address the question whether a ‘taking’ has occurred.”)

^[85] Id. at 131 (“Stated baldly, appellants' position appears to be that the only means of ensuring that selected owners are not singled out to endure financial hardship for no reason is to hold that any restriction imposed on individual landmarks pursuant to the New York City scheme is a ‘taking’ requiring the payment of ‘just compensation.’ Agreement with this argument would, of course, invalidate not just New York City's law, but all comparable landmark legislation in the Nation. We find no merit in it.”)

^[86] Id. at 132 (“[The] New York City law embodies a comprehensive plan to preserve structures of historic or aesthetic interest wherever they might be found in the city, and as noted, over 400 landmarks and 31 historic districts have been designated pursuant to this plan.”)

^[87] Michelle Young, At Risk: The Landmark-Eligible Buildings Around Penn Station, Untapped New York (Mar. 17, 2021), https://www.untappedcities.com/landmark-eligible-buildings-around-penn-station/.

^[88] Id.

^[89] Id.

^[90] Id.

^[91] C.J. Hughes, Chelsea Church Digs in Against Penn Station Redevelopment Plan, Crain's N.Y. Bus. (July 22, 2022), https://www.crainsnewyork.com/commercial-real-estate/chelsea-church-st-john-baptist-digs-against-penn-station-overhaul.

^[92] Id.

^[93] Id.

^[94] Id.

^[95] Id.

^[96] Id.

^[97] Dana Schulz, Historic Church Near Penn Station to be Converted to Modern Retail Space, 6sqft (Nov. 9, 2016), https://www.6sqft.com/historic-church-near-penn-station-to-be-converted-to-modern-retail-space/.

^[98] Id.