The City against it Citizens

Zoning is under attack in New York City. Not here or there, in this instance or that, but the concept itself. This has been the long game of the city’s real estate interests, and after a decade of raids those interests have launched a full frontal assault on several fronts. The historic city should expect no quarter. 

We need to first appreciate that zoning was originally conceived of as having a public purpose and benefit. The completion of the massive Equitable Building at 120 Broadway, covering the entire block between Pine and Cedar Streets, in 1915 compelled the city to pass the nation’s first zoning resolution a year later. The intention was not to block development, but to insure that sufficient light and air reached the streets below. 

For a century the zoning resolution guided what could be built in the city and gave skyscrapers their distinctive New York style – a tower rising to the heavens above a human-scale base. The Empire State Building is the pre-eminent example. The 1961 rezoning encouraged a new form – the tower rising above an open plaza. The Seagram Building typifies this type, though it was completed in 1958. 

Now, all that is history, and as Henry Ford reputedly remarked, “History is bunk.” Actually, he never said that. What he actually said in a 1916 interview was: “History is more or less bunk. It’s tradition. We don’t want tradition. We want to live in the present and the only history that is worth a tinker’s dam is the history we make today.” That self-interested and one-dimensional sentiment describes the current attack on our historic city. 

Defenders of the historic city face foes on many fronts. One front is what was once known as spot-zoning, that is, upzoning a single parcel to allow construction greater than the existing zoning. A prime example is the Blood Center on East 66th Street. The zoning covering much of the Upper East Side permitted tall structures along the avenues and while buildings of lower scale would line the side streets. That pattern has yielded both new development and the preservation of blocks of historic row houses. Now a developer declares that such an arrangement ought not to apply to his plot. He claims a right to build taller. If the city agrees, then the established pattern will be smashed and zoning will have no meaning at all. 

Another such example is the empty block in the South Street Seaport Historic District known as 250 Water Street. The site was vacant when the Landmarks Preservation Commission designated the historic district in 1977, so clearly the commission intended to regulate whatever new construction was proposed. In 2003, specifically to prevent out-of-scale development, City Planning downzoned the block to limit height and bulk there. 

But now, the Landmarks Commission, looking for inspiration not from the blocks in the district but the high rise residential and commercial buildings beyond, has approved a 345-foot residential tower, bursting far beyond the allowable zoning envelope. In this case, the city did not approach zoning as a standard it was bound to enforce on behalf of its citizens, but interpreted it as a minor inconvenience for the Howard Hughes Corporation, which felt it deserved more. The developer muddied the waters by tying their construction with the fate of the nearly destitute South Street Seaport Museum, dangling a $50 million donation to generate support. In truth, there is no guarantee that the museum will ever receive anything.   

A second front in the zoning war involves what might be called a creative interpretation of the rules. Two examples ended up in court. At 200 Amsterdam, the developer crafted a 39-sided zoning lot, sections of which were merely sidewalks connecting small open spaces. The Municipal Art Society and the Committee for Environmentally Sound Development sued the city, claiming that this gerrymandered lot did not comply with the clear language of the rules. Remarkably, in February 2020, State Supreme Court Justice W. Franc Perry not only ordered the Department of Buildings to revoke the permit, but also ordered that the builder remove as many floors as necessary to bring the tower into compliance with the existing zoning. The developer appealed, and continued to build. Their gamble was rewarded when in March 2021 the Appellate Division reversed the lower court decision and declared the tower legal. The 52-story, 668-foot structure will hold only 112 condominiums. Not one of those units could be classed as “affordable housing.” For whose benefit did the de Blasio administration defend this building against the neighborhood groups who opposed it?

A second case is the residential tower begun at 50 West 66th Street. Here the Extell Corporation sought to combine zoning lots and apply the rules as would most benefit their project. Where they originally received approval for an as-of-right building of 291 feet, they amended their design and the now 69-story building would top out at 775-feet. The kicker, however, was that it was to be only 39 stories, for inserted into the design were “mechanical voids” totaling 200 feet, more than a quarter of the height. The City Club of New York sued the Board of Standards and Appeals, and in September 2020 Justice Arthur Engoron ruled against the building. In a stinging decision he wrote:  

“This blatant jacking-up of close to 200-feet (originally set at 214-feet, with a cavernous 160-feet floor, more appropriate for a satellite transmission tower or a circus big-top) is too brazen to be called a ‘subterfuge’; rather, the Developer simply thumbed its nose at the rules. The Proposal’s mechanical voids would be ingenious if they were not so transparent (the word “chutzpah” comes to mind). No sane system of city planning, and no sane system of judicial adjudication would allow developers to end-run around height-limits by including in buildings gargantuan mechanical spaces that may not even contain mechanical equipment and have no purpose other than to augment height beyond otherwise legal limits.” 

Extell appealed, and in July 2021 the Appellate Division reversed Judge Engoron. The illegal tower was now perfectly legal. As at 200 Amsterdam, not one of the units would be classed as “affordable housing.” Which begs the question: why would a city government so intent on fostering the construction of affordable housing fight so aggressively on behalf of developers building condominiums for the ultra-wealthy? 

What is clear is that city agencies – the Department of Buildings, the Department of City Planning, the Board of Standards and Appeals, and most disappointingly the Landmarks Preservation Commission – all further the designs of private developers seeking to exceed the allowable zoning or violate the protections granted historic districts. Further, the citizens fighting these plans, good government groups digging deep into their pockets to file suits intending nothing more than to compel the city to enforce its own regulations are vilified as the enemy. 

The complicity of the city in this egregious over-building is especially clear in the upzoning of East Midtown in 2017. This plan might be better understood as “zoning for dollars.” In return for allowing construction of a building taller and bulkier than the zoning provides for, the city would receive payment in the form of public amenities. The intent is to improve the transit connections around Grand Central, but that will prove a phantom benefit, as the subway lines were already over capacity and the new commercial towers will add thousands more workers flooding the area every day. It is scarcely possible to add capacity to the subway platforms under the terminal, though there may a few more stairways to the street. 

The result of this rezoning is that no structure is too big, or too historic not to be demolished and replaced with something bigger and newer. The first to fall was 270 Park Avenue. Designed as the headquarters of Union Carbide by Gordon Bunshaft and Natalie de Bois of Skidmore, Owings & Merrill, the 708-foot tower was completed in 1960. J.P. Morgan Chase began demolition in 2019, and it gained the dubious distinction as the tallest skyscraper in the world to be intentionally demolished. A 1388 tower will rise in its place. For the privilege, J.P. Morgan Chase paid the city $40 million intended for transit improvements, broadly defined. Thus “zoning for dollars.”

Next up will be the Hotel Commodore, just east of Grand Central on 42nd Street. An 80-story tower is planned there, and sadly the design brutalizes at street level. The monster is as far from human-scale as possible, and proud of it. Sadly, the Landmarks Preservation Commission gave the tower a pass, even though it will affect portions of the designated terminal. The collection of masonry buildings surrounding Grand Central, once known fondly as Terminal City, will soon be no more. 

In 2020 the de Blasio administration launched a full frontal assault on historic districts with a proposal to upzone 56 blocks in SoHo and NoHo and a slice of Chinatown. The stated goal was to foster the construction of affordable housing. By implication, those neighborhoods were exclusionary for limiting what could be built, and the privileged residents were by implication discriminating against the more diverse population that would be accommodated. In truth, the proposal targets many rent-regulated tenements occupied by low-income families and immigrants, many of them Chinese. 

To call that justification for removing the protections of a historic district cynical is to give them too much credit. Despite the administration’s rhetoric, not one unit of affordable housing would have to be built. A study by Village Preservation determined that the proposed FAR (floor area ratio) would be set at 12, the maximum allowable under state law. The FAR of Billionaires Row, the supertalls along 57th Street, is only 10. In other words, there is no limit to what could be built under the proposal, and it goes without saying that the promise of affordable units – affordable being pegged at a family income of $122,000 – will never be fulfilled. Instead the city will gain more units for the super wealthy, and not a few of those units will be merely cashboxes in the sky, a safe investment for off shore wealth. 

Should this proposal be approved, every historic district in the city will be in peril, and the residents who oppose new construction for being out of scale and contrary to the historic context will be further vilified by the political class and the media for seeking nothing more than the exclusion of the less wealthy and less white. 

The shameful truth is that the de Blasio administration has turned its back on the citizens who have loved their city and dedicated years to enhancing its livable. Notwithstanding the insistent claims that upzoning is necessary to provide affordable housing, or that it will result in public enhancements or support for public institutions, the plain truth is that the war on zoning benefits no one but the real estate interests poised to reap enormous profits. It is an ugly form of cynicism that would label civic-minded individuals banding together to oppose such interests as the enemy. 


One thought on “The City against it Citizens”

  1. John West says:

    Jeffrey Kroessler’s statement identifies the gap between the textual and intentual interpretation of our land use regulations. The courts sometimes narrowly read the text of the zoning resolution and sometimes they try to understand the intention behind those regulations. The 36 W 66 Street case is a good example.

    This is an argument for New York City to be required to have a living, well-considered, comprehensive plan. The process would elevate intention over the interpretation of regulation. The City Club has a position:

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