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Buying Sky: the Market for Transferable Development Rights

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2013 FURMAN CENTER FOR REAL ESTATE & URBAN POLICY NEW YORK UNIVERSITY OCTOBER OCTOBER SCHOOL OF LAW • WAGNER SCHOOL OF PUBLIC SERVICE POLICY BRIEF BUYING SKY: The Market for Transferable Development Rights in New York City New York City’s zoning code (known as the “Zoning Resolution”) regulates land use in part by limiting the square footage of the building that landowners can develop on their property. Some buildings are built below the applicable limit—because they are constrained by other regulations such as historic preservation rules, they were built subject to earlier, more-restrictive zoning rules, or the owner chose to develop the property less intensely than the zoning allows because of market conditions or other considerations applicable when the building was built. The Zoning Resolution provides limited opportunities for an owner of land that is less than fully devel- oped to transfer her unused development rights to other properties. This enables the recipients of those development rights (known at that point as “transferrable development rights,” “TDRs,” or “air rights”) to develop larger buildings than the Zoning Resolution otherwise permits, while the seller loses the right to ever use those rights on her own property. @FURMANCENTERNYU FURMAN CENTER FOR REAL ESTATE & URBANTDRs POLICY are an important tool for NEW YORK UNIVERSITY SCHOOL OF LAW • WAGNER SCHOOL OF PUBLICdevelopers SERVICE building in the densest parts of the city and can be very valuable. Almost a third of the large residential and commercial buildings recently constructed in Manhattan below Central Park used development rights acquired from other lots.1 Citywide, between 2003 and 2011, developers paid more than a billion dollars for TDRs. However, the TDR market is largely opaque. Information about most individual transfers is publicly available in the city’s recorded property documents, but is generally difficult or time-consuming to identify and interpret. In this Policy Brief we explore the TDR market in New York City using a new dataset of transactions completed between 2003 and 2011 to which the building would be put (e.g., that the Furman Center has compiled.2 residential, commercial, community Information about the market for TDRs facility, or manufacturing), and whether is particularly relevant today because or not the developer includes certain the proposed East Midtown rezoning amenities or land uses that allow for currently under City Council review a bonus of higher permitted FAR (e.g., would permit larger buildings through a public plaza or affordable housing). the wider use of TDRs and incentive For example, a landowner with a 5,000 zoning linked to the value of TDRs. square foot lot with a maximum resi- dential FAR of 2.5 could construct a residential building with 12,500 square 1. How do New York feet of floor area. However, if this lot has an existing building with only 10,000 City’s Development square feet of floor area, the landowner Rights Transfer has 2,500 square feet of unused floor Programs Work? area development rights she may be able to transfer. The Zoning Resolution specifies, for each lot in the city, a maximum num- Currently, the Zoning Resolution allows ber of square feet of building area an owner to transfer unused develop- per square foot of lot area. This ratio ment rights only in very limited cases: (known as the “Floor Area Ratio” or “FAR”) depends on the location of the Zoning Lot Mergers lot (e.g., the zoning district in which it is Through a process known as a “zoning located and, in some cases, whether it lot merger,” owners of adjacent land BUYING SKY: The Market for Transferable Development Rights in New York City York Rights in New Development Transferable for The Market BUYING SKY: faces a wide or narrow street), the use in the same zoning district (or zoning districts permitting the same uses 1 Buildings larger than 50,000 square feet completed between and same maximum FAR) can agree 2007 and 2012. 2 The Furman Center has previously shared much of these data to group their properties together and in public events, academic presentations and articles, and discus- have them treated as one lot for zoning sions with the city and other stakeholders. 2 FURMAN CENTER FOR REAL ESTATE & URBAN POLICY NEW YORK UNIVERSITY SCHOOL OF LAW • WAGNER SCHOOL OF PUBLICpurposes. SERVICE This effectively allows under- the building owner to enter into a bind- built properties to transfer unused ing agreement to maintain the land- development rights to other proper- mark and secure a special permit from ties in the group, as the unused FAR of the City Planning Commission, which, in the grantor lot(s) and additional devel- turn, requires public review through the opment on the recipient lot(s) cancel city’s lengthy Uniform Land Use Review one another out. Developers often pay Procedure (“ULURP”). Even with the other landowners to enter into zoning expanded right to transfer compared to lot mergers as a way to transfer devel- zoning lot mergers, the number of via- opment rights through contiguous lots ble purchasers for a landmark’s unused to their building site (see inset box). rights is often very small or non-existent. Landowners can orchestrate this type Special Purpose District Transfers of transfer “as-of-right,” meaning that To better tailor zoning to specific neigh- they must execute and record certain borhoods, the city has created several types of transaction documents the city “special purpose districts” in the Zon- requires, but do not need any approval ing Resolution that each have their own from the city. However, because the additional land use rules. In some of lots in a zoning lot merger must form a these districts the Zoning Resolution contiguous group, the market for avail- allows development rights transfers able development rights is very con- from designated grantor sites or zones strained and idiosyncratic: developers to any property in a designated receiv- can only buy unused rights located on ing zone. Two special purpose districts the same block as their building site; in particular have had active TDR mar- owners of unused rights can only sell kets in recent years: if there is a development opportunity and interested purchaser on the block; • In the Special Midtown District, and owners of lots needed to connect specified Broadway theaters have, developers to properties with unused since 1998, been able to trans- development rights can have consid- fer unused development rights to erable negotiating leverage. almost any other lot in the The- ater Subdistrict (roughly between Landmark Transfers To help compensate owners of des- ignated landmarks for the burden of preserving old structures and for their inability to capitalize on any unused development rights through redevelop- ment, the Zoning Resolution allows offi- cially designated landmarks in mid- and high-density zoning districts to trans- fer unused development rights not only to adjacent lots (similar to a zoning lot BUYING SKY: The Market for Transferable Development Rights in New York City York Rights in New Development Transferable for The Market BUYING SKY: merger), but also across the street or, in some circumstances, across an inter- section. This type of transfer requires 3 FURMAN CENTER FOR REAL ESTATE & URBAN POLICY NEW YORK UNIVERSITY What does a SCHOOL OF LAW • WAGNER SCHOOL OF PUBLIC SERVIC6thE and 8th Avenues, from 40th to 57th Street). Transfers require development assurances (through restrictive cov- enants) that the granting site will rights transfer remain a theater, along with a cash look like? contribution to a fund dedicated to enforcing theater preservation East 53rd Street measures and promoting Broad- way’s theater industry. Purchas- 250 East ers can increase the allowable bulk 53rd Street on receiving sites by up to 20 per- cent through such transfers as-of- right, and in some cases can use 989 2nd Ave even more TDRs with a discretion- 987 2nd Ave ary authorization from the City Plan- East 52nd Street985 2nd Ave ning Commission. 2nd Avenue • In the Special West Chelsea Dis- trict, owners of land underneath Figure 1: Lots Included in Zoning and immediately west of the High Lot Merger for 250 East 53rd Street Line have, since 2005, been able The developer of the residential condomin- to transfer unused development ium development at 250 East 53rd Street rights to receiving zones located was able to build a taller tower by purchas- along or near 10th and 11th Ave- ing 72,000 square feet of development rights nues. Developers can use TDRs from three lots with which it entered into a to increase the allowable bulk on zoning lot merger. receiving sites by limited amounts as-of-right. Because transfers made through the “listed-theater” program of the Spe- cial Midtown District and the Special West Chelsea District program are freed from the strict adjacency requirements of zoning lot mergers, these TDRs are sometimes called “floating rights.” The Zoning Resolution also permits devel- opment rights transfers in special pur- pose districts established around the South Street Seaport, Grand Central Station, and, more recently, the Hud- son Yards Special District, among oth- One of these grantor lots was 985 Second ers. There have been very few trans- Avenue (shown in the foreground), a five-story BUYING SKY: The Market for Transferable Development Rights in New York City York Rights in New Development Transferable for The Market BUYING SKY: fers, however, in these other special pre-war walk-up building with a storefront and purpose districts in recent years. apartments, which transferred 14,235 square feet of unused rights to the tower site. 4 FURMAN CENTER FOR REAL ESTATE & URBAN POLICY Table 1: Number of Development Rights Transfers by Type, 2003-2011 NEW YORK UNIVERSITY SCHOOL OF LAW • WAGNER SCHOOL OF PUBLIC SERVICE Between affiliates Arm's length Total Zoning lot merger 57 328 385 Landmark program 0 2 2 Special purpose district 3 31 34 Total 60 361 421 Sources: ACRIS, Furman Center analysis of recorded property documents 2.
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