How To Fix New York’s Heavy-Handed Zoning Laws

Roger Starr is Resident Scholar of the Center for Civic Innovation.  He was formerly Editor of City Journal, an Editorial Board Member of The New York Times, and New York City’s Administrator of Housing and Development.

It’s quite natural that builders regard zoning law with suspicion, and often outright hostility.  After all, zoning, like criminal law, usually has a fundamentally negative purpose.  It tells the prospective builder what he can’t do.  Ironically, once he has completed his work, a builder may turn around and view zoning in a more positive light—because it sustains the value of his creation. What we see when we look at the history of zoning regulations in New York City is that zoning is more of an art than a science. Without the proper “feel” for particular circumstances and the balancing of principles—including a consideration of the needs of the city as a whole—the development and implementation of zoning regulations can do more harm than good.

In fact, New York City’s once sensible—and simple—zoning laws have been replaced over time with an extraordinarily complex system of regulations that reflect the aesthetic principles of the individuals on the city’s Planning Commission as much as, if not more than, they do the appropriate safety, quality of life, and other public use considerations that make for good zoning regulations.  How did this unfortunate transformation take place, and, just as important, what can we do about it?

New York’s Sensible First Zoning Laws

New York enacted the first zoning regulations in the United States over 80 years ago.  The 1916 Zoning Resolution was straightforward: to protect existing buildings and public spaces by limiting the size of new buildings, as well as the number of activities the city permitted them to harbor.  These two dimensions of zoning—the “architectural” and the “land use,” we’ll call them—both made good sense. Limiting the size of new buildings was important because massive buildings cut off light and air from their neighbors, attract heavy traffic on streets and sidewalks, and—in the case of residential buildings—overcrowd transportation facilities, schools, and parks, and thus lead to excess demand on public services.  Controlling the uses of buildings, though, was just as significant, for the noise, odors, traffic, crowds, and disorder that certain activities generate in a residential or an office district could quickly dissipate the atmosphere that had made the district attractive in the first place.

The 1916 zoning law served the city well, its simplicity and reasonableness encouraging a robust level of building virtually unimaginable today. Indeed, it wasn’t until the 1930s that New York City even established a Department of City Planning. Gotham launched the new department to explore how the city might accommodate its general growth, its prospective economic and demographic changes, and its future needs.  Along with the Department of City Planning, the city formed a Planning Commission, chaired by the department’s head.  The Planning Commission was charged not only with planning but also with the capital budget—a schedule for spending borrowed money on permanent municipal improvements, such as the construction of parks, schools, and city highways.

When the Planning Commission first set to work, the fiery Fiorello LaGuardia was mayor.  A strong leader, suspicious that any relaxation of his authority would allow Democratic adversaries to restore the corrupt atmosphere of earlier administrations, LaGuardia stubbornly refused to cooperate with the commission, and kept it firmly in check, unable to do any serious planning.  It wasn’t until 1953, with the election of Robert F. Wagner as mayor, that the Planning Commission began to emerge from its LaGuardia-imposed obscurity, and take on the powers it possesses today.  The new mayor had in fact previously served as the commission’s chairman, so he was much more favorably disposed toward it than was his predecessor.

Wagner appointed real-estate developer James Felt as his Planning Commission chairman. Felt had not left his successful real estate consulting business, though, to preside over a powerless planning commission.  In fact, he fully expected to take major steps toward making New York City’s physical shape fit his vision of its future economy and population.  Realizing that he had little direct control over development by the municipal government, he concentrated instead on stimulating and regulating the private sector—the presumption obviously being that Felt knew better.  The Planning Commission began its practice of importing a centralized vision into the process of determining what would—and would not—get built. Felt’s chosen instrument for guiding private construction was new zoning regulation, setting the 1916 zoning law on the path to extinction.

By the late 1950s, it had become clear to many architects, builders, academics, and city-lovers—including Felt—that New York’s architecture lagged behind the world’s best.  No longer was New York on the cutting aesthetic edge of architectural development. Many professionals held the 1916 Zoning Resolution responsible for the sterile shapes of high-rise buildings, whose mandated set-backs at fixed floor levels produced what many architects reviled as the “wedding-cake” cliché. They praised instead European Towers in the Park—thin shafts surrounded by open public spaces—as a model architectural style. And critics didn’t just restrict themselves to aesthetic considerations. They claimed, too, that zoning did too little to produce “mixed-use districts,” where residents could conveniently find new products traditional neighborhood stores could not    afford to carry.

The Zoning Resolution of 1961: Needless Impediment to Growth

By the beginning of the sixties, then, everything was in place for a far more intrusive zoning regime in the city. Felt’s desire to micromanage economic planning and land use found its legal embodiment with the Zoning Resolution of 1961, which replaced the simple “unrestricted” districts of 1916 with three types of “manufacturing” districts graded, in effect, by the kind of neighbors each would produce.  The M-1 district, the least offensive, permitted “well-behaved” manufacturing—jewelry and clothing—producing no smoke, no smell, little trucking, off-street parking, with everything enclosed and safely under cover.  Unobtrusive M-1 manufacturing was thus acceptable close to residential areas.  Because M-2 districts permitted higher levels of noise and pollution, the new resolution placed greater restrictions on their location.  M-3 districts allowed all manufacturing permitted in the other two districts, and then some, subject only to federal, state, and city limits on pollution and noise. 

Felt mapped extensive M-1 Zones in outer Brooklyn and some parts of Queens because he foresaw that manufacturing was bound to move out of Manhattan as its land would inevitably become more valuable for new high-rise residential and office building construction than for retaining old-fashioned six-story factories. Felt thought he would give the displaced manufacturers a chance to build efficient, one-story plants on cheap M-1 land. But when manufacturers thought of moving, they did not simply move out of Manhattan; they went all the way to Sri Lanka and other faraway places where land was cheap, and labor even cheaper.  Since builders and bankers were afraid that residential building would be hard to sell or rent in a manufacturing zone, much M-1 remains empty almost forty years after it was so zoned.

The 1961 Zoning Resolution, by adding layers of complexity to the categorization of city property, gave a boost to the Planning Commission’s power to regulate the city’s development, and put a damper on building that still suffocates it, thirty-seven years later. The complexity wasn’t just a result of trying to produce the desired economic and land use outcomes, though that certainly played a part. To turn zoning from a mere set of proscriptions to a substantive aesthetic code for New York architecture, Felt began reducing the permissible floor area of new high-rise Manhattan structures by about 15 percent below the 1916 formula.  Then he offered a floor area bonus of as much as 20 percent, if the builder agreed to incorporate several design features favored by the commission—such as a plaza open to the public or an arcade with shops.  Ultimately, a longer list of “bonusable” amenities became mandatory in specially designated zoning districts, as zoning moved from telling a builder what he couldn’t do and started telling him what he must do. In short—and this is the central flaw of the new law—the 1961 Zoning Resolution made the Planning Commission a full partner in the design of privately owned and financed buildings, not to meet standards of safety, as in the Building Code, but to meet criteria that the planners themselves found  desirable. 

Zoning Micromanagement Leads to Failure

This expanded role for zoning—both economic and aesthetic—brought with it new difficulties, no doubt unanticipated by its designers, difficulties that reveal the sharp limits to the human ability to successfully plan human affairs. During the John V. Lindsay Administration (1966-73), for example, city planners feared that office buildings would invade Times Square, demolishing theaters and changing the character of the world-famous entertainment district.  The planners imposed a lower-than-normal floor area on new office buildings in the Times Square district.  Then they offered floor-area bonuses to builders who would include a commercially sized theater within an office building.  Yet economics resists miracles and overly ambitious planners: only one builder went ahead and built a theater.  The initiative ran aground when Broadway found itself suffering a theater glut, not a shortage.

 Joel Banker, a distinguished developer of New York apartment houses, illustrates further the problems created by “incentive zoning” in a special district. “Since we were in the Lincoln Center Special District, we got a bonus for putting in an arcade, but that bonus just about covers what we lost from the special setback regulations in the district.  What we lost was rentable space in our residential buildings.  And while we gained some rentable space in the arcade, the open space we had to create was not rentable.  It also involved us in maintenance and even some policing costs that we certainly did not want and that lowered our net return on investment below what it would have been without the incentive zoning.”

Banker and his associates are now looking outside New York City for building sites—a direct consequence of the overly intrusive and complex zoning regulations made possible by the 1961 Zoning Resolution.  “No longer can an architect look at the zoning map and tell you exactly what you can build on it,” he maintains.  “If you are thinking of something special, you have a problem whose solution is very time-consuming and expensive.”

It is clear, then, that the changes the Planning Commission have introduced are problematic, and it’s clear, too, that the 1961 zoning law was no improvement on its predecessor. Beyond question, the planning agencies have grown in power since the enactment of the Zoning Resolution of 1961.  The commission’s recommendations depend on the research of the Department of City Planning which, ultimately, depends on its staff’s ability to forecast. And forecasting in human affairs, as most of us now know after a twentieth century which has seen the idea of centralized planning thoroughly demolished, is no easy task. With the increased complexity of zoning regulations, aesthetic and land use considerations weighing heavily in any decision, changing the zoning of an area in the city has become a Herculean task—even though the existing zoning might have produced, as is likely in no-growth New York, little development in that area.

An Agenda For Reform

A few changes in the way planning and zoning gets done could free up greater possibilities for getting the city growing once again. Here are three suggestions.

• Sunset zoning provisions. Every proposed change in land-use zoning by the commission should be accompanied by a written explanation of what the commission expects the change to accomplish.  Once a change has been in effect for five years, a petition for review of its effect, signed by 1,000 New York City residents, would mandate a Planning Commission hearing to determine whether the change should stand, or be modified or be replaced.  This reform would make the Planning Commission more accountable to the public, and force it to consider pluses and minuses outside its own aesthetic criteria.
   
• End architectural “correctness.” Speaking of aesthetic criteria, the commission should devote less attention to architectural style and minor amenities and concentrate its efforts on finding ways to eliminate land-use obstacles to useful development. New York’s building has ground to a halt over the years, and needs to be jump-started.
   
• Liberalize zoning regulations to encourage a flexible, pro-growth environment. The current regulations for changing zoning are heavily weighted to forbid the introduction of buildings that differ significantly from those allowed by existing use, bulk, parking, and traffic-generating regulations.  “Big box” stores, to take one example, are often prevented from launching, even though they have proved economically successful elsewhere in the state and nation, and extremely popular, particularly with lower-income families.

In short, New York’s 1961 zoning law encouraged micromanagement of decisions best left to the market within a simplified regulatory framework—as had been in place earlier in the century. They have clearly played a part in discouraging new building in New York. Yet without new building, a city stagnates at best, and more likely begins to spiral downwards. Zoning laws should not just reflect the aesthetic views or economic second-guesses of elites, but should express the interests of the city as a whole. Who can deny, after more than three decades of gradual deterioration of New York’s buildings, that New York needs to rethink its approach to zoning, and that its current zoning laws fail the city’s wider interests?