Could More Flexible Air Rights Policies Facilitate the Growth of Affordable Housing?

Could air transfers reforms

Could laxer air rights policies enable more affordable housing?

During the 1970s fiscal crisis, the city acquired significant quantities of property by way of owner abandonment and tax foreclosure, which it used in subsequent decades to subsidize affordable housing development. Virtually none of that land remains available today, however, and as we recently noted, the now-stratospheric cost of privately held land poses myriad obstacles to new affordable housing production, particularly in neighborhoods with good public schools, ready access to transportation and employment centers.

Seeing monuments to hubris, greed and inequality in their glassy frames, critics have meanwhile  inveighed against proliferating skyscrapers, whose designs, they say, threaten both the city’s social and aesthetic integrity. But in keeping with his big promises on affordable housing (200,000 units!), Mayor Bill de Blasio has indicated his intention to increase, rather than limit, density, and the Real Estate Board of New York, unsurprisingly, has argued that landmarking has an adverse effect on affordable housing. According to a new report from NYU’s Furman Center for Real Estate & Urban Policy, REBNY just might have something there, though not for quite the reasons they’ve proposed.

The report, titled Unlocking the Right to Build, takes a look at the city’s current guidelines for transferring development rights and finds them wanting. But the fine folks at Furman have some corrective ideas in mind, which, the report says, might facilitate construction of thousands of new affordable units—plus plenty of market rate ones, too.

Under the city’s current policy, building owners that are not making full use of a site’s zoning allowance may transfer their unused development capacity (otherwise known as transferable development rights, TDRs or, more popularly, air rights) to nearby lots according to one of three rubrics. The most frequently used, Zoning Lot Mergers, allows transfer of air rights between adjacent buildings—it’s how Gary Barnett assembled the necessary rights for his towers on 57th Street. Special Purposes Districts, which permit “more distant transfers that depart from the underlying zoning structure in order to serve specific planning goals,” according to the report, and Landmark Transfers, which allow “individual landmarks located outside historic districts … to transfer unused development rights not only to adjacent lots but also to lots across the street or … to any lot on another corner that faces the same intersection,” represent the other two.

Between 2003 and 2011, together, the latter accounted for only a handful of transfers. And the report suggests that scads of unbuilt apartments hover in the ether, prevented from being realized by clunky development codes.

To make better use of TDRs, the report posits that the city ought to reconsider regulations regarding which properties are eligible to transfer rights, where air rights can be used, the size of transfers and the process necessary to complete them. Additional TDR programs, together with the loosening of existing rules, might facilitate both affordable development and landmark preservation, while simultaneously shielding neighborhoods from creeping homogeneity and overdevelopment.

According to the report, landmarks represent a particularly underused resource. Landmarked buildings below Central Park in Manhattan, it estimates, “hold more than 33 million square feet of unused development rights, the equivalent of 12 Empire State Buildings, or roughly 33,0000 apartments that could house about 66,000 people.”

Of course, unlocking those development rights and their affordable housing potential means convincing New Yorkers that high-density development is necessary for the city’s future—a task that, if the animus against the skyscrapers of 57th Street is any indication, will not be easy. But it may be necessary.

“Given New York City’s severe shortage of affordable housing, city officials must consider innovative strategies for producing more units,” said Jessica Yager, who is the policy director at the Furman Center. Salvation, it seems clear, does not lie in air rights alone—33,000 is not the same as 200,000. But even 20 percent of that—a common ratio in affordable development schedules—6,600, would be a start.