Grand Central — Again

The 100th anniversary of  the construction of Grand Central terminal is upon us, and unsurprisingly, various mavens are coming out of the woodwork to comment on it. The latest is another NY Times article (Clyde Haberman, Looking Out on Grand Central, and Looking Back on Saving It, NY Times, January 28, 2013, at p. A15). This is largely an interview with Kent L. Barwick, former president of New York’s Municipal Art Society which was instrumental in talking (and pressuring) the New York city attorney into backing off from his decision not to appeal from the trial court decision favoring Penn Central Transportation Company, in exchange for Penn Central forgoing its monetary claim against the city (that the trial court reserved until later).  Mr. Barwick gives credit to Jackie Kennedy for talking the Art Society into taking the initiative on this caper that eventually led to the notorious 1978 SCOTUS opinion in Penn Central Transportation Co. v. City of New York.

The rest  is history. If you want a better, and certainly more balanced and more thorough, description of these events, we recommend pp. 65-75 in the 1985 book THE ZONING GAME REVISITED, by Richard F. Babcock and Charles L. Siemon. Babcock was the Chicago-based dean of the nation’s land-use bar and Siemon (who now practices law in Florida) was his partner.

If you want to know more about the behind-the-scenes events involving the Penn Central case, we also recommend Looking  Back on Penn Central: A Panel Discussion with Supreme Court Litigators, 15 Fordham Envtl. L. Rev. 287 (2004). This is a transcript of a round table discussion among counsel who argued the Penn Central case, and former clerks for Justices Brennan (the author of the Penn Central majority opinion) as well as the clerk for Justice Rehnquist (who wrote the dissent). If you aspire to the status of a Penn Central maven, this is must reading because it reveals incontestably that these actors in the Penn Central drama were stunningly ignorant of the state of pertinent law and the doctrinal ramifications of the opinion they were about to spring on the unsuspecting legal world. They thought that the Penn Central case was not important, and certainly not important enough to be discussed by them in this fashion 25 years later (id. at 295). Lois Schiffer, head of the U.S. Justice Department litigation section, thought Penn Central was a “ho-hum” case (id. at 295). Of such ill-informed stuff are “polestar” cases made.

Last but not least, we suggest that you also look at our magnum opus on the subject of the Penn Central litigation, entitled Making Laws and Sausages: A Quarter Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill of Rights Jour 679 (2005).  See particularly the section following the subheading, X. The New York Establishment “Goes to the Mattresses,” accompanying footnotes  257-268, which covers the same ground as does the New York Times puff piece.