The Empire State Building & NYC Itself Wouldn't Exist With Modern Naysayer Deference

NYC must stop deferring to naysayers, and change the law to reflect this attitude. Civic pride demands it.

New Yorkers love the Empire State Building, the Brooklyn Bridge, and the subway (even if that last relationship is complicated). But if anyone proposed projects like those today, there’s a good chance they wouldn’t get built.¹ And if our modern legal regime existed in the past, we might not have any of them.

Whatever you love about New York City today, someone didn’t want to happen. Thankfully our past law and politics did not ultimately side with the naysayers in those cases.

But our current law does; it embraces naysayer deference. This is done usually—but not exclusively—via a seemingly infinite profusion of veto points. The New York City of today exists without many new projects, buildings, parks, and more, all because they died by the naysayers’ sword throughout the latter half of the twentieth century and the beginning of the twenty-first.

I’ll give you two examples: the Empire State Building, and New York City itself.

The Empire State Building

The endangering modern factors: zoning and historic preservation laws

It was the tallest building in the world when it was completed. The key legal aspect enabling this height was that, after a certain amount of distance from the street, the Empire State Building could rise as high as it wanted.² This affordance would be decisively closed when New York adopted its 1961 zoning resolution, which we still live under today. That resolution would make much of the New York we know today illegal.

Of course, NYC now has several new buildings that rise higher than the Empire State Building—and more on the way. The recently completed One Vanderbilt, the in-progress JPMorgan Chase Tower, and the soon-to-come Commodore Tower all rise above it. But they are only able to do that because, among other things, they purchased the development rights from properties around them. This required the New York City Council to accept rezonings, which is never a guarantee, and makes building many things a “no” by default. It also restricts future development on other sites, because their development rights were sold off.

But mid-century zoning might not be the Empire State Building’s biggest hurdle.

Mid-century historic preservations laws might prove more lethal to the skyscraper, which replaced the original Waldorf-Astoria Hotel. As The New York Times put it: “WORLD-FAMOUS HOTEL DOOMED BY BUSINESS.”³ The Landmarks Preservation Commission, which was established in 1965 and grew tremendously in power thereafter, might have blocked the hotel’s demolition.⁴ I’d say the odds are good they would have—they’ve landmarked about 38,000 buildings in NYC, show no signs of stopping, and have an extreme bias in favor of stopping further development through the process of “landmarking.” They don’t even have a formal process to remove a historic designation.⁵

New York City

The endangering modern factor: state deference to local governments, even when local governments are not performing as they should⁶

Prior to January 1, 1898, there were no five boroughs. Brooklyn was an independent city, “New York City” referred to modern-day Manhattan and the Bronx, Queens was just a county name, and Staten Island was a small collection of far-flung towns.

The project to unite them, which I wrote about here, would have failed if New York State deferred to localities the way it does (legally and politically) today. In fact, the mayors of both New York City and Brooklyn vetoed their own merger (emphasis added):

In a non-binding 1894 referendum on the question of consolidation, almost every polled municipality—including Brooklyn, by 277 votes—voted in favor of it. While this certainly added momentum to the movement, it wasn’t until May 11, 1896, that the New York state government passed the consolidation bill, overriding vetoes from both the mayors of New York and Brooklyn to do so. And it wasn’t until 1897 that the state government ratified the new city charter, boroughs and all, overriding yet another veto from New York’s mayor to do so.

(You can read about the final charter bill fight between the mayor and the state within footnote seven that follows this sentence.)⁷

The ultimate problem was this: consolidation and foundational charter creation are not easy points to come to. If they fail once, it is unlikely they’ll be taken up again. In political circumstances like that, it’s often worth accepting a suboptimal version of a policy, knowing you can amend it later, than it is waiting for an ideal policy, which you likely won’t have a chance to pass. Further: if you wait for the naysayers to quiet down before you proceed, you will be waiting forever. Even after NYC was created, people immediately began arguing for its dissolution (and not just modern Staten Islanders, but Queens!).

Thankfully New York State recognized this, and generally took the side of the prominent Brooklyn lawyer William C. De Witt, who criticized New York’s Mayor Strong in ways that are easily applicable to many modern city (and state) leaders. Indeed, the consolidation charter of 1898 was significantly altered in 1901, and would be regularly amended thereafter,⁸ with the most recent large-scale overhaul in 1989.

The New York Times, April 12, 1897: “A MONUMENTAL WEATHERCOCK.; Mayor Strong So Characterized by William C. De Witt, Owing to is Charter Veto.”

A final legal note: when I explain this history, people often ask me how a mayor could veto state legislation. At the time of the consolidation bill, New York operated under the recently ratified 1894 constitution; it said that if the state passes a bill that targets one or more municipalities specifically (rather than municipalities generally), then those municipalities get the opportunity to approve or veto that bill. If it is vetoed, the state can override that veto by re-passing the bill itself. You can find the municipal veto provisions in Article XII, Section 2 of the 1894 constitution.⁹

P.S. and Honorable Mention: The Eiffel Tower

This post was inspired by John Arnold’s tweet about a petition circulated by the French art world to protest the Eiffel Tower:

Honored compatriot, we come, writers, painters, sculptors, architects, passionate lovers of the beauty of Paris — a beauty until now unspoiled — to protest with all our might, with all our outrage, in the name of slighted French taste, in the name of threatened French art and history, against the erection, in the heart of our capital, of the useless and monstrous Eiffel Tower.

Are we going to allow all this beauty and tradition to be profaned? Is Paris now to be associated with the grotesque and mercantile imagination of a machine builder, to be defaced and disgraced? Even the commercial Americans would not want this Eiffel Tower which is, without any doubt, a dishonor to Paris.

I have no doubt the commercial Americans (a compliment) would have loved the Eiffel Tower, just as the world loves it today.

1. The Brooklyn Bridge would have faced opposition from municipal fragmentation—Brooklyn and NYC were separate, and had to coordinate—and parochial veto. It barely overcame these forces in its own time, before they were strengthened with bad-faith litigation and overburdensome regulation from NEPA (1970) and SEQR (1975). Further, it was constitutionally easier for New York State to overrule localities when the Brooklyn Bridge was built.

The subway would never have happened with the current prohibitive price of construction. See Transit Costs Project, “The New York Case,” p.59.

2. From Construction Physics, “Building Fast and Slow, Part 1: The Empire State Building and the World Trade Center”:
“New York’s zoning code at the time restricted building height by way of requiring step backs from the street, but allowed a tower of unlimited height on 25% of the lot.”

3. “WALDORF IS SOLD; 50-STORY BUILDING TO SUPPLANT HOTEL; WORLD-FAMOUS HOTEL DOOMED BY BUSINESS,” The New York Times, December 21, 1928.

4. For more information about the Landmarks Preservation Commission, see my Twitter thread on the subject. I’m currently turning the thread into a much longer post of its own.

5. In a recent New York City Council Land Use Committee hearing (March 2024), a council member asked the chair of the LPC if there was a formal process to remove a landmark designation—the chair responded that there was not. See this excerpt from the hearing transcript, which begins on page 54, line 21:

There is no application process for removing [a historic designation] but, as part of the Landmarks Law, there is a hardship provision, which is a safety valve when designation may cause an undue hardship or burden to a property owner and so that's a really important part of the Landmarks Law, and it strengthens the Landmarks Law, and it does require robust analysis, including an economic analysis. They're very rare. We've had less than 20 in our 60 years of existence.

I don’t think the LPC chair was speaking forthrightly here. Plenty of buildings are landmarked over the express wishes of their owners, but these do not show up in “hardship provision” numbers. Many people would make use of a process to remove a historic designation if it existed.

6. For further discussion on local governments’ inability to build, see “Why Can’t We Build? Explanations and Reasons for the Building Crisis,” specifically pp.399-403 on localism, by David Schleicher, in volume 17 of The New York University Journal of Law and Liberty (2024).

7. For those who are interested, you can follow the saga of the consolidation charter through The New York Times’ eyes. The headlines alone are revealing.

April 10, 1897: “CHARTER BILL VETOED; Mayor Strong Sent It Back to the Assembly with His Disapproval. HE FOUND IT TOO FAULTY Memorandum Accompanied the Bill Setting Forth in Full the Reasons for His Action. AN ATTEMPT WILL BE MADE TO REPASS IT AT ONCE. It Will Be Taken Up at the Meeting of the Legislature on Monday Night -- Little Surprise Caused in Albany by the Message.”

April 10, 1897: “COMMENTS ON THE VETO; All Who Opposed the Charter United in Approval of the Mayor's Action. PROPOSED CHANGES FAVORED. Those Who Favored the Measure Express Surprise at Mr. Strong's Disapproval and Speak of Its Immediate Passage over the Veto.”

April 11, 1897: “TO FIGHT THE CHARTER; Active Efforts to Organize Public Sentiment and Crystallize the Opposition to the Measure. CONFERENCE AT THE CITY CLUB If Reports from Albany Indicate a Fighting Chance There a Strong Delegation Will Likely Go up to Support Mayor Strong's Veto -- Another Mass Meeting Proposed.”

April 12, 1897: “A MONUMENTAL WEATHERCOCK.; Mayor Strong So Characterized by William C. De Witt, Owing to is Charter Veto.”

April 13, 1897: “OVER MAYOR STRONG'S VETO; The Assembly Re-passes the Greater New York Charter Without Debate of Any Sort. SUPPLEMENTAL BILLS ALSO. No Mention Made of the Objections in the Mayor's Memorandum -- Five Republicans, Mathewson, Reinhard, Robbins, Sanger, and Hill Vote in the Negative.”

April 13, 1897: “CONDEMNED THE CHARTER; North Side Board of Trade Is Pleased with Mayor Strong's Veto. NOT A HOME RULE MEASURE. Manhattan Elevated Railway's Answer to the Complaint of Overcrowding Read to the Meeting.”

April 15, 1897: “ANTI-CHARTER MEN ACTIVE; Will Make a Formidable Appeal to Gov. Black in Albany, on Monday, to Veto the Measure. HAVE ALL THE TIME THEY WANT The Governor's Complaisance Encourages the Hope that He Will Sustain Mayor Strong in Opposing the Present Plan of Consolidation.”

May 6, 1897: “CHARTER BILL SIGNED; Last Official Act in Connection with the Law Creating the Greater New York Municipality. GOV. BLACK'S REASONS FOR APPROVING IT NOT YET GIVEN. It Is Expected that He May Issue a Statement on the Subject -- Three Executives Have Acted on It -- Platt Gets the Pen.”

8. From the Library of Congress: “The Charter of the City of New York with Amendments of 1901, 1902, 1903 and 1904. The text of the first English charter of New York City, with an enumeration of subsequent charters.”

9. See page 40 of the 1894 constitution. The page numbered are handwritten in the upper-right corner of the scanned document.

In the modern constitution, you’ll find the amended and updated municipal veto power (now called the power of home rule) in Article IX, §2 (page 32, which you’ll find in the lower-left corner). Note: per section 2(b)(2)(b), the state government can legislate directly for New York City if the governor declares it necessary, and two-thirds of the legislature agree:

"…except in the case of the city of New York, on certificate of necessity from the governor reciting facts which in the judgment of the governor constitute an emergency requiring enactment of such law and, in such latter case, with the concurrence of two-thirds of the members elected to each house of the legislature.