Hopes are high for major rezoning with height caps


By David McWater

After I became chairperson of Community Board 3 in 2004, everywhere I would go, no matter what problem people were talking to me about, there was a common root theme: fear.

Fear that their world was changing too fast. Fear that a way of life would soon disappear. Fear that they would soon live in a community with no one left they knew. Fear that they would not be able to afford to live here anymore.

It seemed to me then, and I believe now, that the best defense the people of the Lower East Side could have against what has been occurring is zoning. It’s the one tool we conceivably have to slow change and protect our homes and our way of life.

The developers and institutions used zoning all the time. In fact, since the 1950s, virtually all land use changes had been developer initiatives. The role of the community during these years had been simply to react to these initiatives and to hope for the best. Dormitory going up on your block? Protest it — good luck. We were playing by ground rules that seemed skewed against us and out of step with today’s reality. We weren’t really in the same ball game with the big players at all.

So, what if we the people set up new ground rules? Rules that protected what we held dear. Rules that could allow us to even the playing field and have a real role in determining what our community would look like, how it would it exist.

It turns out that this belief was not unique to me. Leaders at C.B. 3 had been trying for the better part of a decade to bring a rezoning initiative to the city. It is a daunting, time-consuming process, however, and one that many boards do not have the financial or labor resources to do in a timely fashion. Many boards take five to 10 years to complete a 197 community-rezoning plan. With the current state of affairs, this seemed like a lifetime.

The board formed a task force on a potential 197 plan and assembled almost two dozen of the leading experts in zoning, housing and architecture issues in the neighborhood. We began to examine the issues and the first thing that was agreed upon was that this wasn’t just a matter of need, but also of timeliness. With dorms, hotels and high-rises sprouting like mushrooms on our skyline, we were faced with the need for immediacy. The solution was difficult to accept, but simple: We were going to have to work with the city. The city had the resources and, we believed, the desire to facilitate the process. Cooperating with the Department of City Planning could take us, from beginning to end, less than two years, a rapid timeline impossible for a community board acting alone.

The board then settled on five principles:

1) Preserve the residential character of the neighborhood.

2) Preserve its current scale and midrise character.

3) Establish a district more in keeping with current planning principles of contextual design.

4) Preserve the mixed-income character of the neighborhood through the use of inclusionary zoning.

5) Eliminate the opportunity for community-facility overdevelopment allowed under the current zoning.

The board sent these principles to City Planning and asked them to spearhead a rezoning over a 119-block area, one of the largest rezonings in the city’s history.

How do you accomplish these goals? The first step: limit the height buildings can be built. Currently, developers can build out-of-scale buildings two different ways. One way is to use the community-facility bonus — 81 E. Third St. is a good example of this. If a developer is putting in a “community facility,” which is frequently a for-profit business, such as a medical office, or, even more frequently, a dorm, then they can build approximately twice the height they would normally be able to build.

A developer can also purchase “air rights.” Simply put, they can buy the right to build up that another building has. If they amass enough air rights, they can build as high as they want. The 20-story-tall Hotel on Rivington is a good example of the use of air rights.

Height caps eliminate the value of both the community-facility bonus and air-rights purchases. Planning has proposed a height cap of 80 feet for the vast majority of the rezoning area (all of it, except for Houston St., Delancey St., Chrystie St. and Avenue D), essentially guaranteeing in those areas that we will never, ever, see another tall tower go up again.

This facet of the rezoning plan is so great an improvement over the current zoning that, standing alone, it would bring me to support the Planning proposal if there were no alternative.

The second key component is to try and keep the Lower East Side affordable. Now there are those who would say the best way to do this is to strengthen rent-regulation laws. Sure it is, and C.B. 3 has been unwavering in its support for rent-regulation laws. However, the fact is it’s a battle we are losing. The fight to preserve rent-regulated apartments as a way of keeping the neighborhood affordable has evolved into a war of attrition. Buyouts and other means continue to decrease the number of rent-regulated apartments in the neighborhood with new rent-regulated ones never being created. At this rate, most of us will see the last rent-regulated apartment in the neighborhood disappear in our lifetime.

The only way to turn the tide in this battle is to create affordable housing. The city’s inclusionary zoning, or I.Z., plan, while in its infancy and imperfect, is the best tool we have for doing that. Under the Planning proposal, Houston St., Delancey St., Chrystie St. and Avenue D would be upzoned for inclusionary zoning. On these streets a developer would be able to build up to 120 feet tall (about what you could build now with a community-facility bonus) if the developer made 20 percent of the building’s units permanently affordable.

Developers are building to this height right now and the community gets nothing in return; with this plan we would at least get 20 percent of the units affordable. Contrary to some reports, the Department of Housing, Preservation and Development — which oversees the I.Z. program — has repeatedly stated that, under the program, these I.Z. units will be extremely difficult to build off site. And if a developer was allowed to do so, the I.Z. units would have to be within the boundaries of the community board. Furthermore, these would not be units lost to those of us who live here now and need them so badly: Fifty percent of the units would be for people who live within the community board area. This is real housing for people who live here now and are being priced out.

Even if you were skeptical about every single thing the city has said (and I know some of us are) this rezoning is still a chance we cannot afford to miss. The downside is so small (the developers can already build now to this height), and the potential upside is so big (perhaps thousands of units for our friends and neighbors who we would have lost from the neighborhood), as to make it practically an offer we can’t refuse.

There are those who would say the Planning proposal is an upzoning. And yes, for much of the neighborhood, the floor area ratio of the buildings would be zoned about 16 percent higher. For most of the area, that is one floor. However, weighed against the elimination of the towers, clearly this is in reality a downzoning. Furthermore, for most landlords to take advantage of the 16 percent increase they would have to put in elevators (required for buildings six stories and higher), which is almost completely impractical for buildings that are less than 40 feet wide. The vast majority of buildings and lots in the L.E.S. are 25 feet wide.

Although I believe strongly that the Planning rezoning proposal is a vast improvement over the current zoning for the above reasons, neither I nor C.B. 3 believes it is perfect.

There are changes of all types that the community board would like to see with the city plan.

A quick rundown of these desired changes includes:

1) C.B. 3 would like to see some of the midblock streets downzoned 16 percent, rather than upzoned 16 percent.

2) C.B. 3 would like to see most of the inclusionary zones receive a smaller upzoning, and with 30 percent affordable housing. (Obviously, everyone would like 100 percent affordable housing, but 30 percent seems to be the highest amount that will still give developers an incentive to build).

3) C.B. 3 would like to see the city “guarantee” the creation of the affordable units. Simply put, if developers don’t come forward and build these units, we want the city to find a way to get them built.

4) C.B. 3 would like to have anti-harassment, and anti-demoliton provisions in the plan. Simply put, we don’t want existing tenants or buildings being discarded for new ones.

Obviously the community board would love for City Planning to accept our proposals, which we believe to be more exact and particular to the intricacies that make up our great neighborhood. Regardless, we are on the right track. A zoning change now is the only way to protect our historic and wonderful home.

McWater is chairperson, Community Board 3