While the ARC Tunnel project was designed to support anticipated future development in most areas, there are certain properties that are located in the project protection zone (properties located close to escalator shafts, station caverns, ect) that will require a restrictive declaration filed against the property.
The restrictive declaration will force property owners to submit any current or future construction and development plans to the Port Authority for approval prior to construction. The Port Authority will then determine if such development or construction would have an adverse affect on the ARC project’s tunnels or other structural elements, or affect public safety.
The following document from the Port Authority details the restrictive declaration process more thoroughly.
In this document, the Port Authority claims that the restrictive declarations should not limit or constrain development of a property to less than its maximum use. On properties where planned developments are known, the Port Authority is intending to allow for maximum build out of land. The Port Authority claims that the only restriction for development in these cases is the location of the building core.
On the surface, it appears that the restrictive declarations will have little to no impact on future development. However, upon further scrutiny, they state ‘the restrictive declaration is intended to allow for future development with in the Project Protection Zone consistent with current zoning’. They continue to say that ‘on sites where future development is yet to be proposed, the restrictive declaration allows for future construction with heights, bulk, and use permitted by the existing underlying zoning’
Herein lies the problem. Although the Port Authority assures owners that the restrictive declaration will allow for maximum build out permitted by the current zoning, it doesn’t clearly address the development impacts for those properties not developed to the property’s highest and best use, which could encompass a re-zoning to a higher density use.
In the end, we have determined that the restrictive declaration could negatively impact those properties that need rezoning to a higher density use in order to develop their property to its highest and best use. If the Port Authority determines that a higher density rezoning and/or development within the existing zoning would affect the integrity of the ARC tunnel and it’s structures, then the property owner is entitled to receive compensation for these damages.
The properties most susceptible to these restrictions are vacant or low rise buildings. If there is potential for development restrictions on your property as a result of this project, you should be mindful of the NY eminent domain statute which states that a property owner has 3 years to file a claim for damages. (NY EM DOM PROC § 503) If you are planning to develop your property now or in the future, you will need to determine within 3 years time, whether or not the ARC Tunnel and its structures will hinder your development plans. Once outside this 3 year window, a property owner can not pursue compensation for their damages.
If you currently do not have plans to develop your property, but you’re considering it for the future, you might consider speaking to an eminent domain attorney, talking to the Port Authority, and possibly obtain an engineering report to determine whether or not your intended development plans will affect the integrity of the ARC tunnel and its structures.
Learn more about the New York eminent domain laws and New York eminent domain attorney fee recovery statutes. Read more about the ARC Tunnel Project.
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