Rethinking Community-Facilities Zoning

Julia Vitullo-Martin, August 2005

"Residential neighborhoods are being destroyed all over New York," says Councilman Tony Avella of Queens, chair of the City Council’s Zoning and Franchises Committee. "The neighborhoods' quality of life is being ruined, their character undermined, old houses are being knocked down, and bulky things put in their place."

Councilman Avella isn’t complaining about conventional, for-profit development. He's talking about so-called "community facilities," such as doctors' offices, that are built under a special "bonus" provision of the city's zoning code.

A community facility can be just about anything that is vaguely tied to public sector services—hospitals, churches, schools, colleges, day care centers, museums, libraries, dormitories, settlement houses, nursing homes, homeless shelters, medical offices. In one form or another, community facilities zoning has affected most prime residential neighborhoods—where the bonus is most valuable.

Under this rubric, Memorial Sloan-Kettering Hospital has erected massive buildings deep into residential streets adjacent to the medical center in the east 60s. New York University has built at least eleven outsized dormitories and school facilities downtown. Cooper Union has announced an immense plan to cover much of Astor Place. Columbia University has built an outsized school on the West Side at Broadway and 110th Street.

"Community facility zoning is very destructive to the community," says activist Elizabeth Ashby, who lives on the Upper East Side of Manhattan. "It's grossly unfair to treat one set of property owners one way, and another an entirely separate way. And then to let that special set ruin our neighborhood." Ashby's concern extends beyond the extra bulk to the peculiar problem besetting brownstone neighborhoods—that the city allows community facilities to build in rear yards on side streets that are otherwise protected.

NO PROTECTION FOR LIGHT AND AIR

Even as the city's 1961 zoning code set strict standards to maintain light and air in residential neighborhoods, it exempted nonprofits from these requirements, as if they didn't really matter so long as the social purpose was high enough. In other words, what was forbidden to private development in the name of protecting light and air was allowed to nonprofit development in the name of the public interest.

The city's justification for such "bulk bonuses" is that community facilities by their nature enhance the general welfare and belong appropriately in the residential neighborhoods that they serve. Zoning lawyer Norman Marcus, who was general counsel to the City Planning Commission from 1963 to 1985, says that in passing the provision, the Wagner administration's thinking was that "community facilities were vulnerable and less competitive than profit-making companies, and that this disparity could be equalized somewhat through a zoning subsidy." But the institutions that have benefited most from the bonus subsidies are among the wealthiest and most powerful in the world. What's more, they are largely closed to neighborhood residents.

Further, since the facilities nearly always remove property from the tax rolls, the Department of City Planning's current zoning handbook argues that the city has an interest in letting them erect bulkier buildings in order to use less land. Thus, the over concentration of institutional uses that is feared and deplored by so many neighborhood residents (and by Jane Jacobs in her Death and Life of Great American Cities) is in fact encouraged as good policy by City Planning itself. It's no accident that powerful institutions seem to be eating their neighborhoods—they're doing this under official city policy and through tax subsidies.

"Community facility zoning has been a problem for as long as I've been active in zoning, since 1963, and probably before then," says Marcus. "It's caused some terrible problems, encouraging development that just shouldn't have happened—like the scads of nursing homes in the Rockaways and the subsequent nursing home scandals in the 1970s that led people to question whether the subsidy was justified. It became clear that nonprofits could and did make money. But the solution was strictly a band-aid—City Planning was to check to see whether a particular community was oversaturated. Each community was supposed to have a fair share. If it had more than its fair share, then residential bulk would be limited. That was in the early 90s—and was the last solution enacted." Andrew Berman, executive director of the Greenwich Village Society for Historic Preservation, argues that the city as a whole would benefit from wealthy institutions dispersing facilities into less developed neighborhood. City officials "should work with institutions to help them site secondary and auxiliary campuses where they are needed, in areas well-connected by mass transit," he says. "Right now there are no limits on many supersized, nonprofit structures can be built in a neighborhood."

WHAT IS A COMMUNITY FACILITY ANYWAY?

Because the bonuses in prime areas are extremely valuable and the definition of community facility very loose, it was probably inevitable that highly questionable community facilities would be proposed—even actually built—before city agencies got around to tightening standards.

One of the more egregious cases is now being fought out on the Lower East Side—a neighborhood that has received more than its fair share of questionable facilities in the past. An old school, P.S. 64 at 605 East 9th Street, was bought for $3.1 million at a city auction in 1998. Because it had been a school and a center for community activities, the Giuliani administration continued a previous community facility restriction, which was agreed to by the buyer, Gregg Singer. Whatever use he proposed had to be a community use.

Singer intends to build a 19-story, 222-unit dormitory, including a 45-car underground garage. But he has no university affiliation, and claims he doesn't need one. The Department of Buildings, which has refused him a building permit, disagrees, saying he must show an "institutional nexus" to get the community facilities bonus. He has appealed for a variance to the Board of Standards and Appeals, which held a standing-room-only public hearing on August 18. Preservationist Andrew Berman calls this a "Trojan-horse dorm" which, after getting into the gates under pretense, will throw off its cover and announce itself for what it is: an out-of-scale, illegal residential building. At least two other builders of dorms have already gotten away with this tactic downtown.

PERMANENT BULK, IMPERMANENT BENEFIT

Community facility status offers extra bulk to a builder. But this extra bulk in no way entails the property, which can be subsequently sold to another user. A doctor's office, for example, can fill in a rear yard behind a brownstone and erect an outsized building—which can remain even after the property is sold. The neighborhood ends up permanently marred, but without any permanent benefit from the community facility.

Indeed, so accepted is this impermanence by city officials that the Department of Buildings is proposing that a builder who seeks the community facility bonus show a mere ten-year lease or commitment to obtain the extra bulk—making the bonus even more valuable than before.

WHAT’S NEXT
The point of zoning is to protect light and air by limiting the size and bulk of new development. If these limits are justified—and many of them are—why should they be eliminated for non-profit uses? The P.S. 64 case is particularly outrageous, since the community use is so strained. If allowed, it will stand as a major precedent. The BSA will hand down its ruling on October 19. Zoning insiders say it will almost surely rule against the developer, who will then appeal all the way to the Court of Appeals—which may well rule in his favor.