Clinton ‘Air Rights’ Plan:
Zoning You Out of Existence?
By John Fisher

Clinton/Hell's Kitchen residents, fearing they'll be driven out of their neighborhood, are fighting a rezoning plan that would let developers build high-rises there.

The Eighth Avenue/Theater Subdistrict Rezoning Proposal, packaged as a plan to "save the theatre district," would let theatre owners sell the "air rights" above their buildings to developers erecting high-rises on the west side of Eighth Avenue.

Proposed by City Planning Commissioner Joe Rose and Mayor Giuliani, the plan is working its way up to the City Council.

Tenant, homeowner and neighborhood groups in all five boroughs are becoming increasingly alarmed, not because they have any special endearment to the low-rise, low-density West Side neighborhood of 45,000, but because the proposal would create a dangerous city-wide precedent for the wide transfer of development rights, or "air rights." The issue affects everyone -- tenants, co-op dwellers, homeowners, and small businesses -- but tenants are most at risk and will be the first to feel the effects.

On April 16, the Manhattan Borough Board, consisting of all 10 Manhattan City Councilmembers and the chairs of the two affected community boards, voted 11-0 to oppose the rezoning plan; Republican Councilmember Andrew Eristoff abstained. But Borough President Virginia Fields, who had criticized the plan's possible impact on the neighborhood during last year's election, endorsed it with reservations on April 22.

Development rights usually involve landmarked structures (Broadway theaters in this case) that could otherwise build much higher if it weren't for their special status. The owner's unused rights can be sold, often to adjacent properties, as compensation.

But like anything, when a seemingly judicious preservation tool's purpose is changed, the demons come out. The current proposal warps its purpose from benign preservation of landmarks to aid a specific industry (commercial theater) to target "economic development" in neighborhoods such as Clinton that developers see as ripe for overhaul.

If the plan is enacted, the precedent could affect many of the city's low-rise, working-to-middle-class neighborhoods, such as Astoria, Woodside, Long Island City and Bay Ridge. In those cases, air rights could be acquired by churches, schools, hospitals, cemeteries, rail yards, or even airports. The plan creates wide "receiving areas" where developers could amass these rights and float them almost anywhere, even across town, and that will surely affect neighborhoods otherwise immune from such speculative pressures.

The basic city zoning resolution is intended to induce development in a predictable and desirable manner across the city; air rights create "spot zoning" and undermine the overall "well-considered plan." The current Clinton air-rights proposal targets the west side of Eighth Avenue for development by increasing the allowable bulk by up to 44%, undermining the "inclusionary housing" bonus, and targeting sites occupied by single-room-occupancy hotels. The plan also does away with essential community review by sidestepping the Uniform Land Use Review Procedure (ULURP), which is mandated by the City Charter.

Basic tenant protections (rent regulations or eviction protections) are hedges against the underlying effects of land use and real-estate pressures in New York City. It is these fundamental forces -- speculative finance, land use and zoning policies -- that drive the real-estate market and that are often ignored or lst in tenant battles.

When major development hits a residential neighborhood, it affects tenants with higher rents, lower services and harassment. Landlords will salivate over expectations of luxury housing and tenants who can afford to pay more. Small "mom-and-pop" businesses will have a harder time competing with more upscale businesses and be hit with higher commercial rents. In short, a neighborhood can be destroyed in short order. Landlords in Clinton have already stepped up harassment in anticipation of the "new neighborhood."

What has been dubbed the "plan with something for everyone to hate," the Eighth Avenue/Theater Subdistrict Rezoning Proposal is being seen as having nothing to do with theater and everything to do with real estate and expanding Midtown. Opposition is intense: Community boards, block and tenant groups, the Municipal Art Society, Historic Districts Council, Landmarks Conservancy, Civitas, Met Council, Queens Civic Congress, Manhattan Neighborhood Council, and others from all five boroughs are speaking out against air rights. They know it's dangerous.