‘As of Right’ And Wrong As Developers Target Morningside Heights

These days we’re feeling vulnerable and neglected in Morningside Heights, the New York neighborhood bounded by 110th Street, 125th Street, Riverside Park and Morningside Park. That is because our venerable institutions, notably Jewish Theological Seminary (JTS) and Union Theological Seminary (UTS), in desperate need of cash, are selling their air rights to the highest bidders – namely developers seeing an unrestricted opportunity to build 30- and 40-story luxury towers in our rapidly gentrifying neighborhood. UTS is still negotiating. JTS is a done deal.

“We’re not offering a building like for the billionaires on 57th Street,” a major developer explained at a meeting of the Morningside Heights Community Coalition at which he presented plans for his project. “We’ll have apartments at $2 million up to maybe $5 million, depending on number of bedrooms. You can’t find anything that reasonable anywhere on the Upper West Side.”

In other words, starter homes for millionaires.

When asked if he could make some apartments affordable for lower-income families, the developer replied: “Not possible, or let’s say, not feasible. I paid a lot for the air rights, so that model just won’t work.” At that point, his associate interrupted with the obvious: “You know, it’s ‘as of right.’ ‘’

Yes. “As of right” means that developers can execute the unfettered purchase of what are known as air rights (allowing developers to build a larger building using the unused rights from an adjacent site) and greatly exceed the height limits set by zoning regulations dating to 1961 without seeking permission from the City Planning Commission, the City Council, or the local community. Unfortunately, Mayor de Blasio’s “Mandatory Inclusionary Housing” law, which compels developers to provide affordable apartments when exceeding certain zoning restrictions, does not apply in an “as of right” zone where air rights are available for purchase.

The impact on Morningside Heights is especially frightening because the neighborhood, with its historic educational and religious institutions, is one of most beloved parts of New York City. Its European character evoked by Beaux-Arts style townhouses and prewar apartment buildings, many with Hudson views along Riverside Drive, have sheltered generations. Its cohesive grand scale along the avenues and drives, and its intimate scale along the cross streets gives it visual interest. Its local businesses have served practical needs and engendered endless memories.

Aside from casting shadows and blocking views and sunlight, when a luxury high-rise is built in a middle-class community, real estate taxes are eventually assessed at a higher rate for the entire area. In turn, local landlords charge higher rents and may try to pressure rent-regulated tenants to leave. Owners of buildings that contain commercial space raise rents on small business owners or refuse to renew their leases in the hope of attracting higher-paying chain stores or banks. A number of small Morningside Heights merchants are on month-to-month leases, and many storefronts are deliberately being kept empty. New residents filling large towers place additional stress on community services (police, fire), transportation (subway crowding and overflowing platforms), and already neglected schools. The character, fabric, and quality of middle-class neighborhood life deteriorates.

Several years ago, residents of the neighborhood just south of Morningside Heights were outraged when two soaring glass towers were erected on Broadway and 99th Street. Working with local officials, community activists managed to achieve the passage in 2012 of a special-purpose zoning designation to limit future construction heights, and regulate commercial development. The same year, the area north of Morningside, West Harlem, was officially rezoned to accommodate the negotiated expansion of the new Columbia campus while ensuring that low-rise, mid-block buildings were preserved in most areas and that affordable housing would be mandated for buildings exceeding zoned height limits.

In the 1970’s and 1980s, middle-class Morningside Heights was viewed as a risky investment, known for rent-stabilized apartments and a high crime rate. Like much of the Upper West Side, Morningside Heights subsequently improved, thanks in part to a mix of co-op and condo conversions, while sustaining middle-class rental apartments.

But today, safe and economically stable Morningside Heights, with its historic architecture, small neighborhood stores, bucolic parks, world-renowned educational, theological, and medical institutions (Columbia, Barnard, Teachers College, Manhattan School of Music, Jewish and Union Theological Seminaries, St. John the Divine, Riverside Church, St. Luke’s/Mt. Sinai), is open season for developers who recognize a highly desirable “as of right” zoning oasis.

Of the approximately 1,200 new apartments due to be made available in Morningside Heights in the next few years, only about 7% will fall into the so-called “affordable” range, based on the area median income ($90,600 for a family of four in 2016), which inexplicably includes affluent areas outside the five boroughs, such as Westchester County.

The Morningside Heights Community Coalition has identified more than 20 local “soft sites” — vulnerable real estate parcels with at least one of the following distinctions: low-rise, tenant-free, nonresidential, vacant and/or with available “air rights” with lots large enough for development, which in turn enable developers to build large towers inconsistent with the surrounding area and to create luxury rentals and condos beyond what the community can afford. It is just a matter of time and opportunity as to when local landlords and institutions will sell, or develop themselves.

Happily for all, a remedy is available. Some portion of both the air rights price and the developer’s profit should be allocated to directly benefit the community – for example, to provide better subway access for the disabled, living-wage jobs, a new school, a senior center, and affordable housing grants. The process might take the form of a “Community Benefits Agreement,” for which there is local precedent in the case of Columbia’s expansion into West Harlem, and which has been executed in other New York neighborhoods and other cities. This would not in itself prevent the erection of luxury towers, but at least the community would realize certain benefits from their arrival.

And longer-range solutions are also required, because if steps are not taken to remedy this situation, Morningside Heights will suffer from the displacement of long-time residents and increased stress on local infrastructure and services, while major developers and real estate fund managers are rewarded and shareholders are kept satisfied. But Morningside Heights should have rights too. Updated zoning laws in line with those in its surrounding neighborhoods should be enacted, and commitments by developers and institutions to provide financial compensation and community improvements should be codified and enforced – “as of right.”

Robert F. Stern is a board member of the Morningside Heights Community Coalition.

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