BRIDGE TO TROUBLED WATER: EXACTIONS ALONG NEW YORK CITY’S SHORE

New York City’s coastline is transforming. Its waterfront zoning requirements have drastically expanded public waterfront access by trading building permits and similar discretionary property benefits to developers in exchange for publicly accessible parks, paths, and plazas. This process is almost certainly unconstitutional: Under the searching review of the Supreme Court’s “exactions tetralogy,” these mutually beneficial transactions are unconstitutional conditions. But no one seems to care. This Note addresses the unexpected survival of New York City’s waterfront zoning. It proposes two methods by which the city can strengthen its expressed interests in these deals in case of constitutional challenge. More significantly, it uses New York City’s waterfront zoning to argue that, contrary to the underlying values of the Takings Clause on which it is based, exactions doctrine restricts individual property rights. Certain rational actors, like profit-maximizing, large-scale developers, are not inclined to pursue legal remedies. Instead, it is in the interest of both private landowners and the government to sidestep exactions altogether and negotiate mutually beneficial deals.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2026, Columbia Law School; Executive Articles Editor, Columbia Law Review. Thank you to Professor Michael Heller for his guidance, feedback, and insistence on teaching exactions doctrine to his 1L property class. This Note is dedicated to the people and places of the New York City Department of Parks & Recreation.

Introduction

The public owns the East River, as it owns all navigable waterways. 1 See, e.g., Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 455 (1892) (stating that “[t]he ownership of . . . navigable waters . . . is a subject of public concern” and those waters thus cannot be alienated from the governmental “trust with which they are held”). Only recently is that ownership paying dividends. When Williamsburg’s iconic Domino Sugar refinery closed in 2004, 2 Josh Barbanel, New Neighborhood Emerging on the Domino Refinery Site, Wall St. J. (Apr. 26, 2017), https://www.wsj.com/articles/new-neighborhood-emerging-on-the-domino-refinery-site-1493235312 (on file with the Columbia Law Review). an extensive redevelopment permitting process began that would reshape the public’s access to the waterfront. 3 Id.; Charles V. Bagli, Plan to Redevelop Domino Sugar Factory in Brooklyn Hits Snag: De Blasio, N.Y. Times (Feb. 27, 2014), https://www.nytimes.com/2014/02/28/nyregion/plan-to-redevelop-brooklyn-sugar-refinery-hits-roadblock-new-mayor.html (on file with the Columbia Law Review). In 2014, New York City (the “City”) approved a proposal by Two Trees Management, the second developer to own the site since the refinery’s closing. 4 Barbanel, supra note 2. A hugely successful New York real estate company responsible for much of Dumbo’s 5 Dumbo is a neighborhood of New York City located at the Brooklyn end of the Brooklyn and Manhattan bridges. The name is an acronym: “Down Under the Manhattan Bridge Overpass.” Jeff Giles, The Most Instagrammable Neighborhood in America, Before It Was Cool, N.Y. Times (Sep. 12, 2019), https://www.nytimes.com/2019/09/12/nyregion/the-most-instagrammable-neighborhood-in-america-before-it-was-cool.html (on file with the Columbia Law Review) (last updated Sep. 16, 2019). late-twentieth century redevelopment, Two Trees is undoubtedly a profit-making organism. 6 See David W. Dunlap, SoHo, TriBeCa and Now Dumbo?, N.Y. Times (Oct. 25, 1998), https://www.nytimes.com/1998/10/25/realestate/soho-tribeca-and-now-dumbo.html (on file with the Columbia Law Review) (“[Two Trees] has waited since 1981 for the political and economic stars to align that would allow [it] to redevelop the area . . . .”). Despite this, its proposal and subsequent project did not effect a one-to-one transition from industrial to residential and commercial. Opened in 2018 at a cost of $50 million, Domino Park is a privately owned, publicly accessible five-acre park partially cantilevered over the East River. 7 See Damian Holmes, Domino Park Designed by James Corner Field Operations Opens in New York, World Landscape Architecture (June 16, 2018), https://worldlandscapearchitect.com/domino-park-designed-by-james-corner-field-operations-opens-in-new-york (on file with the Columbia Law Review). Domino Square is a similarly accessible one-acre plaza nearby. 8 Welcome to Domino, Refinery Domino, https://www.therefineryatdomino.com/the-domino-campus-in-williamsburg [https://perma.cc/2783-A5H2] (last visited Aug. 14, 2025). Developers have their own incentives to build parks and green spaces alongside more traditional developments, 9 See infra section III.B.3. but Domino Park and Square are not purely business or altruistic endeavors. They are the result of years of development proposals, zoning procedures, public feedback and pushback, and, most importantly, New York City’s 1993 Waterfront Zoning Ordinance (the “Ordinance”) 10 The City places the Ordinance within “Rules for Special Areas” in the Zoning Resolution. This Note uses the word “Ordinance” to explicitly refer to this portion of the zoning resolution, but practitioners refer to the “ZR.” and its 2009 amendments, one of the diverse strategies by which the City has sought to reclaim its 520 miles of coastline.

The Ordinance requires landowners seeking redevelopment permits on waterfront lots to dedicate a portion of the lot to the public. 11 N.Y.C., N.Y., Zoning Resolution art. IV, ch. 2, 62-50 (2025) (detailing public-access requirements in case of waterfront redevelopment). As Domino Park shows, New York City has created a functional system for establishing publicly accessible waterfront spaces. But the system is not as legally sound as it is effective. By conditioning development approval upon a land use restriction (the property owner only needs to build a park if they require a development permit), the Ordinance is an example of an “exaction,” a commonly implemented but unique portion of Takings jurisprudence. 12 The Ordinance is a “legislative” exaction, meaning it applies equally to all developments that fit within its definitions. An “adjudicative” exaction is determined on a case-by-case basis. See Lee Anne Fennell & Eduardo M. Peñalver, Exactions Creep, 2013 Sup. Ct. Rev. 287, 296 (explaining that “legislative” exaction takes the form of a “generally applicable formula” in ways that “adjudicative exactions” do not). In essence, the City declares that: (1) Waterfront development interferes with the government’s interest in securing access to the water for the people and (2) the developer can proceed with it provided they balance this impediment on the state interest by creating a publicly accessible waterfront area. 13 See Waterfront Access Map, NYC Plan., https://waterfrontaccess.planning.nyc .gov/waterfront-zoning-for-public-access [https://perma.cc/AW7D-N2BL] (last visited Aug. 14, 2025) (“This requirement is rooted in the long-standing public trust doctrine which ensures the public’s access to the City’s waterfronts and waterways.”). U.S. Supreme Court decisions make the Ordinance constitutionally unsteady as it relates to the Takings Clause of the Fifth Amendment. Its survival is unexpected. 14 See Jill Ilan Berger Inbar, Note, “A One Way Ticket to Palookaville”: Supreme Court Takings Jurisprudence After Dolan and Its Implications for New York City’s Waterfront Zoning Resolution, 17 Cardozo L. Rev. 331, 365 (1995) (“Under the standards of current takings jurisprudence, the Court would probably hold that the Waterfront Ordinance effects an unconstitutional taking without just compensation.”).

This Note addresses that survival. The Ordinance seemed destined to fail on day one, but it continues today. The City’s waterfront regime requires developers to spend money and cede control, yet landowners decline to challenge it. This Note seeks to answer the question of why the Ordinance has survived. It uses this case study to argue that the Supreme Court’s exactions jurisprudence is not properly designed to protect private property owners. To prevent the government from exacting unconstitutional conditions from landowners, the Supreme Court has instead limited the capabilities of both property owners and local government so much that even some well-resourced parties are unlikely to challenge municipal exactions. Contemporary exactions doctrine serves only as a hinderance on mutually beneficial municipal planning and thus is rarely implemented. Parties instead may choose to ignore it. New York City’s Waterfront Zoning Ordinance displays the practical faults and resulting inefficacy of exactions law.

Part I will provide background on New York’s successes and failures in reclaiming waterfront land, including the Ordinance. Part II will present and apply exactions law to the Ordinance. It will examine the Ordinance and its public-access requirements in the context of the “exactions trilogy” of Nollan v. California Coastal Commission, 15 483 U.S. 825 (1987). Dolan v. City of Tigard, 16 512 U.S. 374 (1994). and Koontz v. St. Johns River Water Management District, 17 570 U.S. 595 (2013). and their recent successor, Sheetz v. County of El Dorado, 18 144 S. Ct. 893 (2024). As Sheetz seems essential to exactions jurisprudence (and is important as it applies to the Ordinance), this Note refers to these four cases as the “Exactions Tetralogy,” adding it to the prior “Trilogy” of Nollan, Dolan, and Koontz . all of which suggest that the Ordinance would be overturned if subject to constitutional challenge. Part III will suggest that the Ordinance has stronger legal defenses available to it than one might expect, but most importantly it will argue that the Ordinance’s survival is not purely a coincidence. Rather, the City’s extensive powers in other methods of land use control incentivize developers to cooperate with a regime that, in many ways, aligns with their interests. Absent the Ordinance, the City would still be able to regulate similar or more intrusive results without conferring a benefit to developers. This places private developers in a scenario in which cooperation with municipal exactions is their best option.