Appellate Judges Overturn Lower Court, Theatre Air Rights Can Be Sold and Transferred

News   Appellate Judges Overturn Lower Court, Theatre Air Rights Can Be Sold and Transferred A New York State Appellate court has ruled in the city's favor over a contested — and progressive — rezoning of the theatre district.

A New York State Appellate court has ruled in the city's favor over a contested — and progressive — rezoning of the theatre district.

Since late 1997, city planners and Broadway theatre owners have actively sought the freedom to sell the unused air rights attached to theatres. These would be sold to developers, many of whom could exploit and transfer development rights (TDR) in order to build high-rises elsewhere. To that end, theatre strategists and city planners sought to draft a plan that would strike a balance between the relative "burdens and benefits" of such transfers, resulting in the theatre district rezoning plan that was debated publicly in 1998. (The theatre subdistrict is bound by 40th and 57th Streets and Sixth and Eighth Avenues.)

The on again-off again debate has always been contentious, with community activists pitched against theatre interests and City Hall. Even resolutions in the debate, such as the Jan. 25 appellate decision, are spun as victories by either side.

For their part, community activists claim victory, with a Clinton Special District Coalition spokesperson telling other media that, if nothing else, the prolonged court battle over rezoning has kept would-be developers out of the theatre district at a time when the market was particularly hot. This stall has, in effect, improved the "field position" for opponents of the theatre rezoning law.

According to a Clinton Special District Coalition release, another critical gain was a limitation placed on the zoning law by the courts. A coalition statement reads (in part): "In 1998, the mayor sought to allow building owners in the theater subdistrict, from 40 to 57 Streets and from Sixth Avenue to Eighth Avenue, toincrease building size by up to 44 percent (emphasis added) through the transfer of development rights from Broadway theaters. The plan would have encouraged skyscrapers on the west side of Eighth Avenue in the low-rise residential Clinton/Hell's Kitchen neighborhood. The zoning change as originally adopted would have allowed a 44 percent increase in bulk in two steps — first, a 20 percent increase that was "as of right," i.e. without further government approvals (and which could be used instead of an existing 20 percent inclusionary housing bonus), and a second 24 percent increase by Special Permit. Thursday's Appellate Court decision reaffirmed the lower court ruling in striking down the larger 24 percent Special Permit increase (emphasis added)—an entirely unwarranted and unprecedented increase that would have led to traffic congestion, pollution, and tremendous economic pressures on the residents in the Clinton/Hell's Kitchen's neighborhood. The decision also left in place the community's earlier victory excluding twelve blocks from the west side of Eighth Avenue from the mayor's plan." The opposing side in the theatre rezoning debate was equally enthused by the Jan. 25 ruling. "It was, from the city's perspective, a resounding victory," said Department of City Planing Manhattan Borough director Richard Barth. "The court upheld the right for theatres to transfer development rights within the theatre district." Barth stressed that these transfers can now be done 'as of right,' meaning "the law doesn't require any discretionary review...the theatres make their own arrangements and that was upheld." Barth said the Appellate Court decision reaffirmed the rezoning law, which was first adopted in 1998. A lower court subsequently invalidated the law and the city's appeal was filed in March 2000. "We filed with the Appellate Division of the State Supreme Court," Barth told Playbill On Line. "They ruled last Thursday to uphold the rezoning." Asked if the ruling would affect any transfer of development rights and renovations at the Biltmore Theatre, Barth said probably not. "They're involved with a 'theatre rehabilitation,' with a 'bonus' [favorable zoning concession], so they are not affected by the transfer of development rights. The commission gives them a special theatre rehabilitation permit. A bonus is allowed in exchange for the rehabilitation of the theatre." Barth indicated that not all the filings had been submitted for the Biltmore project and that a review process, the Urban Land Use Review Process (ULURP), would be followed. "We obviously recognize that it's a very important theatre," Barth said, "but the project will require public review, community board action and [contributions from] the City Planing Commission and council.

—By Murdoch McBride