Sheds Without End: New York City’s Scaffolding Problem and the Fifth Amendment

Stroll the streets of New York City, and chances are, whether the fact has dawned on you or not, you will pass beneath a few—perhaps even 8,500—narrow chutes of metal poles and planking that dot the city’s environs. [1] Otherwise known as sidewalk sheds, or most famously scaffolding, these structures are entrenched in the city’s collective identity every bit as much as hotdog vendors, dollar slice pizzas, or corner bodegas. As of late, property owners throughout the city have been beset by encroaching scaffolding, some of which have persisted for upwards of a decade, depriving neighboring owners of the use and enjoyment of their property and the revenues their businesses would otherwise generate. [2]

 These grievances of many have most recently culminated in a class action suit, filed on March 27, 2025, by Boies Schiller Flexner LLP and Messing & Spector LLP, against New York City for failing to grant “just compensation” to individuals subjected to neighboring scaffolding extending into their property. [3] “The city has a constitutional obligation to compensate blameless owners,” the complaint reads, citing a historically critical—and hotly contested—provision within the Bill of Rights: that is, the Takings Clause of the Fifth Amendment. [4] The clause, which states “nor shall private property be taken for public use, without just compensation,” has given rise to heated legal battles testing the fine line between regulatory overreach and warranted occupation of private property, typically in the name of the public interest. [5] These scaffolding structures—mandated by the New York City government on properties in need of façade repairs—have already departed from servicing the city in any meaningful measure. Operating instead within a simulacrum of public safety, they can constitute per se takings under the Fifth Amendment, obligating the city to provide just compensation to the blameless neighboring owners whose right to exclude they deny; and where such structures are permitted to persist indefinitely without enforced repair timelines, they forgo the public use precondition that alone could render such occupations constitutional.

 To answer this, one must turn to what exactly is triggering these mandates, and how it has managed to breed a city blanketed by 360 miles worth of scaffolding. [6] In 1979, Barnard College student Grace Gold was walking down 115th Street when she was fatally struck by a piece of crumbling façade, igniting a flurry of stringent local safety regulations. [7] These regulations today belong to Local Law 11, otherwise known as the Façade Inspection & Safety Program (FISP), and mandate that all property owners of buildings higher than six stories are subject to inspections every five years; if a property fails inspection, scaffolding is installed, bringing with it a cocktail of complications: not only do such structures, in many instances, physically occupy and encroach upon neighboring property, but levied repair costs can also range anywhere between six and seven figures, creating a significant economic incentive to delay repairs while maintaining the scaffolding. [8] These complications are redoubled given the government’s failure to compensate those who own neighboring property, much less to surveil or materially penalize negligent owners who let their scaffolding sit unnecessarily for several years. [9]

 Whether these physical occupations of neighboring private property amount to an unconstitutional taking under the Fifth Amendment rests squarely on the Supreme Court’s physical takings doctrine. The divergence between a regulatory and a physical occupation is one of kind rather than degree; scaffolding mandated under Local Law 11 physically occupies neighboring private property, directly appropriating the neighboring owner’s right to exclude, a categorically different government action from regulating what an owner may do on their own land. In Cedar Point Nursery v. Hassid (2021), the Court held that government-authorized temporary physical occupations of private property constitute per se takings: at issue was a California regulation granting labor organizers the right to enter an agricultural employer’s property for upwards of three hours per day, 120 days per year, to solicit union membership. [10] The Court reasoned that, by granting labor organizers the right to enter the employer’s land, the California regulation appropriated the owner’s right to exclude for the organizer’s benefit—which the court has identified as the “hallmark of ownership,” enabling owners to deny others access to their property. [11]

 The Court’s holding in Cedar Point built upon its earlier decision in Loretto v. Teleprompter Manhattan CATV Corp. (1982), in which a New York landlord contested a state statute that authorized the installment of cable television equipment on her building. [12] The Court, in response, held that a government-mandated permanent physical occupation of private property constitutes a per se taking, regardless of the public interests it may allege to serve. [13] In the Court’s view, such occupations effectively thwart owners’ rights to possess, use, and dispose of their property. [14] Critically, the Court also held that protection of these property rights is not contingent upon the size of the area taken. [15]

 Both holdings bear directly on New York City’s scaffolding problem: when a building fails its façade inspection and scaffolding is subsequently erected under Local Law 11, the resulting structure can span beyond the boundaries of the offending property and onto adjacent private property, occupying storefronts, obstructing signage, enclosing portions of a neighboring building, and impinging on business revenues. [16] The neighboring owner cannot remove the scaffolding, nor control its footprint, and most critically, has little say over when or whether the mandated repairs will be completed. [17] That the scaffolding is erected by a private party as opposed to the city directly does not demonstrably place this beyond Cedar Point’s reach. Cedar Point’s holding incorporates government-authorized physical occupations, to which Local Law 11 belongs. When the city compels a building owner to install scaffolding that foreseeably and routinely encroaches upon neighboring property, it authorizes that encroachment; accordingly, the deprivation of the neighboring property owner’s right to exclude is directly issued forth from the city’s mandate, and crucially, Cedar Point does not condition its holding on the government having physically executed the occupation itself. Under Cedar Point, a physical occupation of this kind, mandated by a city, executed by a third party, and imposed on an owner who played no role in triggering it, constitutes a per se taking; the nominal temporariness of the structure does not alter this conclusion, particularly when the city’s failure to enforce repair timelines has rendered that temporariness indefinite in practice. [18] Moreover, under Loretto, the result holds even if a court were to treat the occupation as permanent: a government-mandated physical occupation imposed on a blameless property owner nevertheless constitutes a per se taking. [19]

 Having established that encroaching on neighboring property constitutes a per se taking under Loretto and Cedar Point, the city’s administration of these Local Law 11 mandates proves unconstitutional. The severity of that taking, and the scale of just compensation owed, are measurable: a 2024 study commissioned by the City of New York in partnership with Mastercard found that Manhattan businesses operating beneath sidewalk sheds experience a reduction in Mastercard cardholder spending of between $3,900 and $9,500 per month, with restaurants and bars reporting a 3.5 to 9.7 percent decrease in weekly transactions in the six months following a shed’s construction. [20] These adverse losses derive from obstructed storefronts and diminished foot traffic, conditions that, for businesses reliant on street-level visibility, can prove destructive to revenues. Façade repairs under Local Law 11 routinely reach substantial sums; Department of Buildings data indicates an average cost of approximately $6,500 per linear foot of façade, with mid-size buildings regularly exceeding $500,000 and landmark or pre-war structures surpassing $1 million. [21] Scaffolding maintenance, by contrast, costs between $50 and $150 per linear foot per month. [22] Such an outsized cost disparity creates conditions in which prolonged scaffolding maintenance becomes a means of bypassing the considerably steeper repair expenses.

 Throughout this arcane arrangement, the neighboring property owner, who derives no benefit from the scaffolding and bears its full economic burden, receives no compensation. The city has not, to date, compensated a single neighboring owner for the encroachment of a sidewalk shed mandated under Local Law 11, despite overwhelming evidence of the significant effects wrought by protracted scaffolding structures. [23] Under Armstrong v. United States (1960), the Fifth Amendment was designed to bar the government from compelling isolated individuals to bear public burdens which ought to “be borne by the public as a whole.” [24] The neighboring property owner, who endures years of diminished revenues and forfeited use of their property, bears such a burden while deprived of compensation and lacking a compensation mechanism under the existing regime.

 On the other hand, Local Law 11 appears to be a lawful exercise of the municipal police power, no different from building codes or fire escapes that impose costs on property owners without flouting the Takings Clause. However, these regulations govern how an owner uses their own property; scaffolding under Local Law 11, in contrast, physically occupies someone else’s. As the Court clarified in Yee v. City of Escondido (1992), the constitutional line sits between two distinct government actions: regulating an owner’s use of their own property, and compelling a landowner to submit to the physical occupation of their property by a third party. [25] As Loretto itself recognized, the legitimacy of a regulation under the police power is a separate precinct from whether it so infringes on property rights that compensation must be granted. [26]

 In accord with the semantics of the Takings Clause, its stipulation is twofold: public use and just compensation. “Public use,” as it relates to occupying a portion of private property, bespeaks a degree of service to the greater good, to society and its constituents; in this light, and under the principle established in Kelo v. City of New London that deference to the government’s definition of public use presupposes an active and sustained public purpose, for mandated scaffolding to be constitutional under the Takings Clause, not only must neighboring property owners be justly compensated, but the occupation must also continuously advance the public purpose it purports to serve.

 Under established Supreme Court precedent, however, courts have historically granted acute deference to the government’s definition of “public use”; in Kelo v. City of New London (2005), most notably, the Court interpreted the Fifth Amendment’s “public use” requisite broadly to encompass any legitimate “public purpose,” authorizing New London to seize private, non-blighted homes and surrender them to a private developer as a means of increasing the city’s tax base. [27] Measured against this prevailing standard, the initial installation of scaffolding indisputably satisfies the “public use” requisite of the Takings Clause, for façade inspections and their attendant repairs protect pedestrians from falling debris. Yet, critically, Kelo’s deference presupposes that the public purpose animating the taking is sustained; the Court legitimized the seizure because the city’s redevelopment plan was active and directed toward a defined public objective. [28] This principle lays bare the heart of what precisely renders New York City’s scaffolding mandates unconstitutional: sidewalk sheds that persist for years, even decades, without any enforced motion for their removal, solely because a property owner flouts their due responsibility to complete repairs, cease to serve the public. [29]

 Remedying this constitutional shortfall, then, becomes necessarily two-pronged: preventing scaffolding from persisting beyond its legitimate public safety purpose—to ensure that the continued occupation remains connected to its public safety justification—and endowing blameless neighbors with compensation reflective of the extent to which they have been deprived of the use and enjoyment of their property, as just compensation requires.

 Practically, this level of redress necessitates a high degree of governmental intervention. To address the first prong—that is, minimizing the economic incentive of propping up sheds to an unconstitutional extent—scaffolding permits should adhere to mandatory repair timelines, requiring property owners to submit documented evidence of repair progress at regular intervals as a condition of renewal. Where no progress is demonstrated, fines should escalate on a fixed, interest-based schedule, set to exceed the cost of completing the repairs as opposed to the current model, whose costs operate chiefly as nominal—if mildly inconvenient—penalties absorbed as a cost of “doing business.” [30] Beyond a certain threshold of noncompliance, the city should be authorized to commission the repairs itself and recover costs from the negligent owner through a municipal lien. To satisfy the second and most overlooked requisite of the Takings Clause—just compensation—with regard to scaffolding, a far more nuanced approach is appropriate, one that is sensitive to the varied circumstances of each affected property owner. Compensation must account for the duration of the physical invasion, documented revenue losses, diminished rental income, reduced property values, and the degree to which the owner has been denied meaningful use of their property. Given the subjective nature of evaluating many of these factors, the government must determine what most accurately amounts to just compensation on a case-by-case basis. The appropriate defendant in such proceedings is the city itself; Local Law 11 is a municipal mandate, and the constitutional obligation to compensate issues from the government that imposed the condition giving rise to the taking.

 The class action filed by Boies Schiller Flexner and Messing & Spector in March 2025 is the first legal challenge to the scaffolding that has long blighted New York City’s streetscape. It broaches a question the city has avoided since the advent of Local Law 11: who pays when a government mandate puts one owner’s problem on another owner’s property? [31] The city’s most recent response, Local Law 47, passed the same month and expanded the acceptable color palette for sidewalk sheds, raised their minimum height to twelve feet, shortened permit durations for sidewalk sheds from one year to ninety days, and introduced escalating penalties for owners who fail to demonstrate repair progress. [32] These reforms, while sweeping and promising on paper, do little to address the constitutional deficiency at the root of the scaffolding crisis: neighboring property owners are still beset by a physical occupation of their property, still denied compensation, and still left without recourse. Taller or more colorful sheds still constitute a taking, and for as long as the city denies its constituents their basic property rights to which they are entitled, no amount of cosmetic reform will counteract what is, at bottom, the city’s failure to grapple with the Takings Clause: the indefinite imposition of its public safety burden on blameless neighboring owners without compensation or recourse.

 Edited by Prerna Vanga

Sources 

[1] Patrick McGeehan, “New York City’s Everlasting Scaffolding,” New York Times, April 24, 2024, https://www.nytimes.com/2024/04/24/nyregion/nyc-scaffolding.html.

[2] McGeehan, “New York City’s.”

[3] Boies Schiller Flexner LLP, “Class Action Lawsuit Filed on Behalf of NY Property Owners Against City,” press release, March 27, 2025, https://www.bsfllp.com/news-events/boies-schiller-flexner-and-messing-and-spector-file-class-action-lawsuit-on-behalf-of-new-york-property-owners-against-city-over-invasive-sidewalk-sheds.html.

[4] Class Action Complaint, Salvo Partners LLC v. City of New York, No. 1:25-cv-02531 (S.D.N.Y. Mar. 27, 2025).

[5] U.S. Const. amend. V.

[6] Erin Ailworth, “Why New York City Can’t Fix Its Ugly Scaffolding Problem,” Wall Street Journal, February 18, 2024, https://www.wsj.com/us-news/new-york-city-cant-fix-sidewalk-shed-problem-5f46aef3.

[7] “Falling Masonry Fatally Injures Barnard Student,” New York Times, May 17, 1979.

[8] N.Y.C. Admin. Code § 28-302.1.

[9] Class Action Complaint, supra note 4, at ¶ 5.

[10] Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021).

[11] Id. at 147; Abigail K. Flanigan, “Rent Regulations After Cedar Point,” Columbia Law Review 123, no. 2 (2023): 493.

[12] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

[13] Id. at 426.

[14] Id. at 435.

[15] Id. at 436.

[16] Class Action Complaint, supra note 4, at ¶¶ 45–50.

[17] Class Action Complaint, supra note 4, at ¶¶ 6–7.

[18] Ailworth, “Why New York City.”

[19] Aziz Z. Huq, “Property Against Legality: Takings After Cedar Point,” Virginia Law Review 109 (2023): 251-252.

[20] Office of the Mayor, City of New York, “Mayor Adams Releases New Study Finding Sidewalk Sheds and Scaffolding Cost Manhattan Businesses Between Nearly $4,000 and $9,500 Each Month,” press release, August 14, 2024, https://www.nyc.gov/mayors-office/news/2024/08/mayor-adams-releases-new-study-finding-sidewalk-sheds-scaffolding-cost-manhattan-businesses.

[21] MGR Restoration Inc., “Local Law 11 Facade Inspection Cost NYC 2026: Full Price Guide,” accessed August 5, 2026, https://nyrestoration.com/local-law-11-facade-inspection-cost-nyc/.

[22] “Scaffolding Companies NYC,” ScaffoldShed, accessed August 5, 2026, https://scaffoldshed.com.

[23] Class Action Complaint, supra note 4, at ¶ 5.

[24] Armstrong v. United States, 364 U.S. 40 (1960).

[25] Yee v. City of Escondido, 503 U.S. 519 (1992).

[26] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 425 (1982).

[27] Kelo v. City of New London, 545 U.S. 469 (2005).

[28] Id. at 484.

[29] Ailworth, “Why New York City.”

[30] Ailworth, “Why New York City.”

[31] Boies Schiller Flexner LLP, “Class Action Lawsuit.”

[32] Local Law No. 47, 2025 N.Y.C. Local Laws.