A 700-Plus-Foot Tower at 96th Street and Second Avenue is Proposed by the City Using Air-Rights from Public Parkland

This is a blatant example of City overreach. As far as we can determine this would be the first case of the City using the air-rights from a playground that is zoned as a park, which prohibits development. The project, co-sponsored by the DOE’s Educational Construction Fund (ECF) and private developers (Avalon Bay), takes up the full block from 96th to 97th Street between Second and First Avenues. The Marx Brothers playground/park occupies half the block and will yield a windfall in air-rights to allow enough floor area for about 1.1 million square feet of residential construction, including 30% of affordable housing, and the replacement the existing vocational school, plus the addition of two new high schools (for the relatively nearby existing Park East and Heritage high schools).

A careful reading of the city Zoning Resolution would reject that those air-rights even exist. Yet even if they did exist, the proposed building would still not be allowed because half of the full-block project area (bordering 96th Street) is zoned R10A, meaning it is zoned contextually and limited in height to 210 feet. Hence, it would be impossible to build a tower exceeding 700 feet in height (more than three times the height limit allowed), without the additional discretionary process (ULURP) to upzone the entire block in order to lift the height limits.

The building is wildly out of context. No building anywhere nearby exceeds the 450-foot range. In fact for the Upper East Side (above 60th street) and East Harlem, the tallest buildings are the two Mt. Sinai buildings between 99th and 102nd Streets, which are in the low-to-mid 500-foot height range. But the proposed tower is not only tall. It is huge, with over 1,100 units in a single building. It is a Midtown-scale building plunked onto 96th Street.

Moreover, this is an area for which civic groups (Carnegie Hill Neighbors, Friends of the Upper East Side, CIVITAS, and CB8) are actively seeking to limit height outcomes mostly in the 210- to 400-foot range. Similar efforts to limit the height of residential buildings are underway in many other areas of the City, including relatively nearby in Sutton Place and the Upper West Side (headed by Landmark West).

Finally, while we despair at the many tall buildings being constructed at the southern end of Central Park, those buildings are all as-of-right. In this case as-of-right would allow nothing above 210 feet. This tower will only be possible because of the two discretionary actions (getting parkland air-rights and lifting zoning height limits) actively being supported by Mayor Bill de Blasio and City Council Speaker Melissa Mark-Viverito.

Carnegie Hill Neighbors spearheaded opposition to this development, garnering more than 500 petition letters and a coalition of civic groups. Together they urged Governor Andrew M. Cuomo to veto a bill that allowed demapping of the playground as parkland to enable its air rights to be used in the development of the tower. The governor did sign the bill, but with an amendment requiring a study to determine whether this playground is protect parkland or not and thus eligible for development.

The amendment temporarily prevents any construction on the site while the study is conducted. Meanwhile, CHN, along with our zoning consultant George M. Janes, pro-bono land use attorney Caroline Harris, and representatives of the coalition of civic organizations, are building the case to demonstrate the Marx Brothers Playground is indeed parkland.