American Planning Association’s 2017 New York Metro Chapter Conference

October 27, 2017

Mitch Korbey presented at the American Planning Association's 2017 New York Metro Chapter Conference titled, "Value and Innovation in the Air: The legal aspects of “Air Rights Deals” in New York City."

Developers of both super tall buildings and more modest commercial and residential towers have increasingly used the purchase of development rights (commonly called Air Rights) to enlarge their projects, bringing ever-taller structures to the City. Development rights deals take place in increasingly complex assemblages, with intricate legal negotiations and arrangements. These deals and the resulting developments are as-of-right, notwithstanding community-based concerns. City rezonings have established height and density controls in some neighborhoods, but many continue to permit towers without an effective height limit - and developers can legally vest from rezonings.

Recent City zoning changes such as East Midtown have expanded-upon established multi-site air rights transfer mechanisms (e.g. Theatre District), creating innovative ways to “send” unused development rights to development sites many blocks away. The City’s Landmarks Commission, building upon existing legal tools and taking advantage of its ever-expanding jurisdiction, is poised to use these new rules to its advantage - and to the benefit of multiple landmarked buildings.