Fred F. French Investing Co. v. City of New York: Losing a Battle but Winning a War

Abstract

The law and the financial and other institutions that conform their expectations to thelaw are inherently conservative. Novel concepts and techniques must therefore be introduced gradually to insure their acceptance. New York City planning officials failed to heed this basic principle when they established the mandatory TDR scheme to bar development on the parkland in Tudor City. The parks are a privately owned oasis of greenery within the East Side Tudor City apartment complex. So they lost, despite a sympathetic judge and a real estate market that is well on its way to attuning itself to the TDR concept. In Fred F. French Investing Co. v . City of New York (Tudor Parks), Judge Breitel invalidated the mandatory scheme as an overly broad police power exercise, ordering reinstatement of the prior mid-rise (R-10) density zoning. Because of Judge Breitel's extraordinarily thoughtful opinion and the peculiar nature of the challenged TDR program, however, the loss should prove little more than a temporary setback for the TDR concept and for incentive zoning generally. My guess, in fact, is that Tudor Parks will turn out to be a case of losing the battle but winning the War.