FXFOWLE Podium: House of Zoning

HOUSE OF ZONING

AFTER 100 YEARS, SHOULD WE REBUILD IT?

Hugh Ferriss, Drawing, Study for Maximum Mass Permitted by the 1916 New York Zoning Law, Stage 2, 1922.

Jack Robbins | FXFOWLE

HOUSE OF ZONING

AFTER 100 YEARS, SHOULD WE REBUILD IT? Jack Robbins, AIA, LEED AP, Principal, FXFOWLE

Amidst a boom of new, ever higher buildings in New York, civic organizations have cried out against developers, who, “growing more and more bold... have ruthlessly invaded neighborhood upon neighborhood...building out of all proportion to the character and needs of the district.” 1 They raise concerns about the capacity of existing infrastructure and call for the imposition of height limits. A neighborhood association speaks out against the hordes moving into an established neighborhood, threatening to destroy its character. Community leaders warn of the vast shadows new buildings will cast on public space and call the new generation of skyscrapers “destructive of adjacent land values, unwholesome

obstructions to light and ventilation, and undesirable edifices generally.” The issues and arguments sound like rants you might have read online last week. They were published in 1915.

The fierce debates sparked by the pressures of a rapidly urbanizing city led, in 1916, to the creation of a bold, new, previously untested law, known today as the New York City Zoning Resolution. This revolutionary set of regulations inspired zoning laws across the country and around the world.

Why, then, 100 years later, are we still having the same debates? Is zoning doing what we want it to do? And what is it we want it to do? We have lived with zoning for so long, treat it as such a given in the process of shaping our city that we have

lost touch with its purpose and its origins. Is zoning a leftover artifact of a different era, or does it still reflect today’s values? Is the house of zoning we started building over 100 years ago still the structure we want to live in today?

To answer this we must consider zoning from a broader perspective, looking at the social, political, and intellectual forces that created it. New York City Zoning was largely shaped by the ethos of two key periods of history: the years before 1916 when it was created, and those before 1961, when it was entirely re-written. Socially progressive as well socially regressive forces were at work in both eras, and both forces left their mark on zoning.

1 Stern, Robert A.M, Gregory Gilmartin, and John Massengale, New York 1900: Metropolitan Architecture and Urbanism 1890-1915, (New York: Rizzoli, 1995).

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largest building in the world at the time of its construction. The building sparked opposition long before it was completed, with its opponents siting the shadow it would cast, the negative impact on adjacent property values, the strain on infrastructure, general harm to public health, and the potential dangers of fire. Zoning law, in this version of history, protects the public from the threat of unrestrained development represented by the Equitable Building.

Figure 1

The Equitable Building, as depicted in a 1919 Postcard. It rises in a sheer wall from its property line to a height of 42 stories and 538 feet.

ZONING’S ORIGINS The classic tale of the origin of zoning frames it as a reaction to the Equitable Building, which finished construction in 1915 (Figure 1). Still there today (and now ironically housing the central office of the New York City Department of City Planning), the Equitable Building takes up a full city block of Lower Manhattan and rises in a sheer wall from its property line to a height of 42 stories and 538 feet. At nearly 1.85 million square feet of space, it was the

Another version of zoning history ties zoning to the progressive social welfare and reform movements of the time. A quarter century earlier Jacob Riis’ photographs opened the public’s eyes to the deplorable slum conditions and overcrowded tenements of Lower Manhattan, inspiring a social reform movement and the creation of laws regulating residential buildings (Figure 2).

New laws imposed requirements for daylight, fresh air, and fresh water, protecting the lower classes from the overcrowding and unsanitary conditions created by, or at least allowed by, wealthier building owners. The New Tenement Act of 1901 established the legal precedent in New York City for building height regulation, by limiting multi-family residential buildings to 1.5 times their street width. The idea of tying height to street width would be adopted 15 years later by zoning law. The New Tenement Act also drew a clear connection between regulating bulk and protecting the health and quality of life of the City’s inhabitants.

Just as Riis’ photographs raised consciousness of lower class living conditions, the 1911 Triangle Shirtwaist Factory disaster brought attention to lower class workplace conditions. The fire in a loft building just east of Washington Square killed 146 people, injured 71, and remained

2 “ Equitable Building (Manhattan)”, last modified 25 November 2016, https://en.wikipedia.org/wiki/Equitable_Building_(Manhattan)

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Figure 2

“Lodgers in a Crowded Bayard Street Tenement— ‘Five Cents a Spot’”, photo by Jacob Riis, 1889.

the City’s worst workplace disaster until the terrorist attacks of September 11, 2001 (Figure 3). Most of the fire’s victims were recent Jewish and Italian immigrant women, aged 14 to 23. The tragedy triggered a host of new building codes and workplace safety regulations, setting another important precedent for protecting public safety by regulating building use and form.

However, the loudest and most politically influential voices calling for the creation of zoning laws in the decade before 1916 were not primarily concerned with social

welfare or public health, but with the protection of an upper class enclave along Fifth Avenue from the incursion of “swarms” of poor factory workers. The Fifth Avenue Association, a group of retailers, hotels, property owners, and real estate investors, lenders, and brokers, 3 formed in 1907 to protect its territory—5th Avenue between 32nd and 59th Streets—from encroaching garment warehouses, manufacturing buildings (like the Triangle Shirtwaist factory building), and the workers employed in them (Figure 4). These workers were largely recent immigrants and included a high percentage of women. The city’s population had grown more than fivefold in the preceding 50 years, primarily through immigration, and the Fifth Avenue

3 Weiss, Marc A., “Skyscraper Zoning: New York’s Pioneering Role”, APA Journal, Spring 1992.

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Figure 3

Figure 4

Association’s white, male, Anglo-Saxon membership somewhat understandably perceived an invasion of foreigners overcrowding “their” street. Looking for a legal basis to protect their territory, the Association turned to zoning law (Figure 5).

But concerned that height limits would be insufficient to protect upper class areas, the Commission also recommends regulating uses, noting, “Height limitations alone will not prevent deterioration of sections owing to the invasion of inappropriate industries or structures.”4 The shift of focus from heightbased regulation to use-based regulation is an important one. Regulating uses, more so than regulating bulk, pits the haves against the have-nots, and so embodies to a greater degree underlying classist and racist motivations.

The Triangle Shirtwaist fire—first published on front page of The New York World on March 26, 1911.

In 1913, in large part in response to the lobbying of the Association, the City established the Heights of Buildings Commission to study the possibility of zoning regulation. The Commission produced an in-depth report with analysis of the two principal types of zoning regulation: height limits and “districting.” The Commission’s justifications for height limits largely links them to health, safety, increased light and air, and reduced congestion (Figure 6).

1916 advertisement from the New York Times urging action against the “Factory Invasion of the Shopping District” along Fifth Avenue.

Heavily influenced by the Fifth Avenue Association, the report devotes an entire chapter to Fifth Avenue, singling it out for special protection:

4 Report of the Heights of Buildings Commission to the Committee on the Height, Size and Arrangement of Buildings of the Board of Estimate and Appointment of the City of New York, Edward M Bassett, Chariman, December 23, 1913, http://archive.org/details/reportofheightsoOOnewy

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Figure 5

Images from the “Commission on Buildings and Districts Final Report,” 1916, showing crowding on 5th Avenue.

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Figure 6

varying with the district, we can prevent the repetition of these conditions in other parts of the city. A few comparatively small districts of the city are already spoiled...

A page from the “Commission on Buildings and Districts Final Report,� 1916, relating building height to street congestion and fire risk.

There is no more striking example of the necessity of districting the city for the purposes of building control than is furnished by Fifth Avenue. The avenue will serve best the interests both of the abutting owners and of the entire city, if it is preserved as an attractive thoroughfare and high class retail center.5

The Commission’s attitude about poorer neighborhoods in the city stands in sharp contrast. They are considered beyond salvation, a disease whose spread might be stopped but not cured: While we know of no immediate practicable remedy for the existing congestion of population on the lower East Side, we believe that by appropriate restrictions

The idea of regulating building heights is transmuted to regulating building uses in order to keep ethnic groups and lower social classes out of rich enclaves, while the lower class neighborhoods are not considered worth improving. It may be easy to dismiss these 100-year-old class struggles as the attitudes of a less enlightened age, but our zoning laws were born from these impulses, and we should be wary today how much our zoning still bears their imprint.

The charter written by the Commission enabled zoning law, and a second commission with many of the same members, the Commission on Building Districts and

5 Report of the Heights of Buildings Comission, page 51.

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Figure 7

Sky exposure plane as described in the “Commission on Buildings and Districts Final Report,” 1916.

Figure 8

The Empire State Building. Tourists standing on the corner of 5th Avenue and 34th Street have been known to ask a passersby for help finding the Empire State Building, unaware that they are standing next to it. The building’s tower—25 percent of an entire city block—is set back to be all but invisible from the sidewalk directly below.

Restrictions, was formed to draft specific legal language. The change in the name of the new commission, from “Heights” to “Districts,” underscores the shift in focus from bulk control to use regulation. While their nearly 300-page report contains extensive maps, drawings, charts, and photos, the actual “Building Zone Resolution” that would become law is contained in a mere 17 pages.

(By contrast, the Zoning Resolution we use today is over three thousand pages.) On July 25, 1916, less than 2 months after the report was issued, the resolution became law.

THE 1916 RESOLUTION The 1916 Resolution establishes regulations that control three key aspects of development: Bulk Regulation, Height Regulation, and what we’ll call Marketplace Regulation.

Bulk Regulation Bulk controls were intended to protect both private property and the public realm from potential development excesses and unpredictability. The 1916 law limited building height along the street edge to a multiple of the street width.6 Above that height, a building had to set back from the street at a proscribed ratio of horizontal setback to vertical height. This ratio created an invisible angled plane, the “sky exposure plane,” which a building could not penetrate (Figure 7). Each successive floor under this plane had to be smaller, until a floor’s area reached 25 percent of the lot area, at which point the building could build straight up, penetrating the sky exposure plane, with no limit on height. The resulting towers were widely spaced, thin, and set back from the

6 One-half to two and a half times the width depending on the area.

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street, preventing them from having too much impact at the street level (Figure 8).

One consequence of the “25 percent tower rule” was that only very large lots (and significant land owners) could build very high. They needed enough land that 25 percent of the lot was a reasonable size for a building floor.

Ironically, a regulation that started from an initial desire to limit building height, did not, in the end, impose any height limit, but controlled only the shape and form of that height. Implicit in the sky exposure plane and the 25 percent tower rule controls is a quid pro quo: the right to build unlimited private building height in exchange for giving something—light, air, and space— to the public realm. Building bulk was governed by a blend of both private (the lot size) and public (the street width) factors, but with no cap on the total amount that could be built. This system both protects public space from the excesses of private development, and reserves an “unlimited status” for developers who could amass enough property. It can be seen simultaneously as protecting the broader public from private excess and bestowing “unlimited” entitlement to an upper echelon of developers.

Figure 9

Hugh Ferriss’ drawings, published in the New York Times Magazine, and later in his book The Metropolis of Tomorrow, were deeply influential.

Image courtesy of The Skyscraper Museum.

Despite regulating bulk, the authors of the 1916 Resolution did not articulate a vision of what a future city built under the law might look like (other than preserving certain existing forms). World War I meant that few large buildings were built in the years immediately following 1916. It wasn’t until 1922, when architect and renderer Hugh Ferriss drew a series of step-by-step perspectives demonstrating the architectural consequences of the zoning law, that the

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physical implications for building form really began to be understood (Figure 9). He translated the regulatory envelope into the “wedding cake” steps and angular terraces we now recognize as the Art Deco style. This vision was so influential that the building style quickly spread to cities around the world—from Los Angeles to Shanghai—that had no zoning to require the form.7 Use Regulation Use regulation, or land use districts, control where certain activities can or can’t occur.

Following the much older precedent of “Common Nuisance Law,” what can be built in a given location depends on what it is used for, what happens inside it, not its outside shape. The 1916 zoning resolution divided the city into three district types: Residential, Commercial, and Unlimited.

Unlike today’s use districts, this was a hierarchical system: a residential building could be built in any of the three districts, while an industrial one could only be built in an Unlimited district. This structure reflects the underlying protectionist nature and origins of zoning. Residential uses were protected from the “common nuisance” of industrial uses. The 1916 zoning was generally framed as a safeguard against threats, whether from the physical form of a building like the Equitable Building, unsanitary living conditions, or hordes of factory workers in neighborhoods where they weren’t welcome.

The use hierarchy also promoted segregation along class lines. A wealthy resident had the freedom to build his house anywhere.

But lower classes, who depended on work in factories for their livelihood, were zoned to less desirable areas of the city. By protecting property values from noxious

uses, use regulation can implicitly pit those people with valuable property to protect against those who do not have any. Use regulation thus bears the imprint of the class stratification and struggles of the early 1900s.

Marketplace Regulation Although not always thought of in economic terms, since its inception zoning has been justified as a way to protect property value. Both the Heights Commission and the Commission on Building Districts and Restrictions were explicit in their desire to protect individual property values and the investment stability of neighborhoods.

Previously development patterns and building height had been restricted and stabilized by the limits of construction and transportation technology. In the decade or so before 1916, structural steel and elevators allowed buildings to reach new, previously un-contemplated heights.

As these enabled vertical growth, new streetcar systems enabled horizontal spread of cities. Manufacturing and its workforce could locate further from the waterfront shipping areas that had been their domain, and closer to higher class residential areas, which saw them as a threat. The potential for unrestricted growth enabled by these technologies was frightening and destabilizing to property values. Zoning applied new “artificial” constraints to stabilize the marketplace, replacing the “natural” constraints of older technology.

While zoning regulated the marketplace of property and development by limiting what could be built and where, within the law’s bounds there was still a free market.

This idea is embodied in the concept of “as-of-right”: buildings which comply with zoning are not subject to additional

7 “ I916 Zoning Resolution”, last modified 30 September 2016, https://en.wiki pedia.org/wiki/1916_Zoning_Resolution

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The constraint slows market response, limiting the risk of over-developing in response to a sharp but un-sustained rise in demand. Zoning created a regulated marketplace that could theoretically limit volatility while still allowing market forces to operate.

RETHINKING ZONING (1916-1961)

Figure 10

From “Zoning New York City”, 1958, showing the concern with adequate parking space.

Image source: nyc.gov

review or approvals by the government or the public. Limiting the power of the regulation to measurable and quantifiable things protected development from political subjectivity. A developer wouldn’t need to have—or buy—political influence to get a building approved, and the desires of the marketplace, not the regulators, governed.

In theory, if he played by the rules, the little guy could also build big. However constraints on bulk meant building big was effectively limited to those who could buy big (amounts of property).

The 1916 zoning, unlike later versions, constrained the supply of development, but did so without putting a cap on it.

Constrained supply forces prices up during periods of high demand. But as the supply had no ultimate ceiling, the market would, in theory, eventually correct itself toward a balance between supply and demand.

In the 1920s federal model zoning codes based on the New York City resolution spread zoning laws around the country, and a landmark 1926 Supreme Court decision affirmed zoning’s constitutionality. But in New York, the law’s shortcomings became ever more apparent. Numerous amendments were made to the text over the years. In 1938 the City Planning Commission was created to administer the increasingly unwieldy law.

Despite these attempted improvements, calls from critics began to emerge to scrap the law entirely and start over. The postWorld War II building boom added to the pressure to re-think zoning. In 1948, the City Planning Commission hired Harrison, Ballard and Allen to study potential changes.

Their 318-page “Plan for Rezoning the City Of New York,” issued in 1950, failed to gain sufficient political support. A second attempt in 1958, “Zoning New York City: A Proposal for a Zoning Resolution for the City of New York,” by Voorhees Walker Smith & Smith, weighed in at 389 pages, and included a complete draft of new zoning text. Finally, in 1961, more than a dozen years after the initial studies, a completely new zoning resolution was approved.

Both the 1950 and 1958 studies were highly critical of the 1916 zoning, noting that it did not reflect then-current conditions of the city, or sufficiently plan for future growth.

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Figure 11

Images from “Plan for Rezoning�, 1950, showing the Lever House and Stuyvesantown as models for future development under the new zoning.

Image source: nyc.gov

Cars and the parking space they required had become an important planning issue, not addressed in 1916 (Figure 10). The 1916 Resolution lacked provisions to deal directly with density, despite being written only a few years after Manhattan reached a peak population and density level, unrivaled to this day. Critics claimed that a full build-out under the 1916 zoning would have allowed a city of 55 million people. (Since there was no height limit, theoretically there was no maximum capacity.) Ironically the 1961 Resolution, explicitly designed to limit growth and population, was written roughly 10 years into a 30-year population decline for the city.

The 1961 Resolution was much more forward thinking than the 1916 version, with a clear vision of the future. The studies that preceded the 1916 law were filled with photos and diagrams of the negative conditions that the law would prevent, but very little that conveyed what a city built under the new law would be like. The reports proceeding the 1961 resolution, in contrast, are filled with renderings of future cityscapes, and photos of Lever House, the Seagram Building, and tower-in-the park housing developments as the models for what the code was trying to create (Figure 11). The 1916 code was reacting protectively against the sins of the past, while the 1961 code looked with optimism toward a brighter future. With the former, an architectural style had been developed after the fact, shaped by the necessities of the code, in the later,

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Figure 12

In 1947, 18 blocks of tenement buildings and industrial storage were cleared for Stuyvesant Town, 8,800 apartments in cruciform towers in a park-like setting. The private-sector project which displaced 16,000 residents was seen as model for Urban Renewal.

the code was modeled after an architectural style that had already been created and built.

As part of that same mid-century ethos, the federal government instituted a series of programs to promote growth and development that, perhaps inadvertently, helped to decimate city downtowns across the country. Programs like the G.I. Bill, the American Housing Act of 1949, and the Federal Highway Act of 1956, had the effect of encouraging the middle class to move away from cities into new suburban

developments. These and other governmentled initiatives also helped raze once-vibrant urban neighborhoods, to make way for new highway infrastructure and housing developments. Poorer neighborhoods, usually populated by minorities, were designated “blighted” and subject to “slum clearance” that aimed to erase and rebuild them in a modernist mold. These initiatives looked to a tower-in-the-park model of disconnected high-rises as a way to bring order, cleanliness, light, and greenery to neighborhoods designated as blighted.

The 1916 zoning was ill-suited the urban scale and building forms of this Urban Renewal approach (Figure 12). Although the 1961 rewrite was not specifically designed to aid slum clearance, it was very much in harmony with the approach, and motivated by the same ideology.8

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Figure 13

Three configurations of a Floor Area Ratio (FAR) of 1. FAR allows for flexibility in distribution of bulk.

THE 1961 RESOLUTION: ZONING REMODELED Bulk Regulation To allow these modern building forms, the 1961 code moved away from sky exposure planes and the 25 percent rule, and introduced the concept of Floor Area Ratio or FAR (Figure 13). FAR limits total square footage for a given lot to a fixed multiple of the lot area, and allows for more flexibility in the building form, providing the opportunity for modernist-style sheer towers set back from the street, instead of the deco “wedding cake” setbacks. In the new code, the building base height was no longer related to street width.9 The 25 percent tower footprint rule was expanded to 40 percent and in some cases up to 55 percent.

Depending on the district a building lot was in, developers had a choice of different building envelopes, and different ways to get to the FAR limit.

The new Zoning Resolution also introduced the idea of incentive zoning through the plaza bonus. A private owner could build

more—get a bonus amount of floor area— in exchange for creating Privately Owned Public Spaces, or POPS, at the street level.10 More broadly, incentive zoning offers development rights in exchange for some kind of public benefit, and has been emulated and widely used in other cities.

It has been used to incentivize public benefits ranging from the preservation of certain building types or building uses (e.g. theaters near Times Square), to the inclusion or creation of specific new uses (from daycare to supermarkets), to particular stylistic preferences that reflect the tastes of a given time period or location.

The exchange implicit in the original zoning law—more private space in exchange for public benefit (light and air in 1916)— became explicit and transactional.

Qualitative benefit was replaced with measurable quantities. The open space created under the 1961 code was meant to directly compensate the increase in building density, to make a more crowded city more livable. Although over 3.5 million square feet of open space has been created through bonuses, the poor quality of the space has been a perpetual problem. POPS regulations have been amended repeatedly, in 1975,

8 I n testimony at public hearings held in 1960 on the proposed zoning, the new law is repeatedly linked to slum clearance, and to the City’s Slum Clearance Committee, headed by none other than Robert Moses, the power broker leading the charge on large-scale urban redevelopment.

9 Street width was reflected only in a simple binary system for the initial setback, wide street or narrow street.

10 Initially, one square foot of public plaza bought the right to build 10 square feet of private floor area.

POPS eventually included plazas, open arcades, and through-block connections in some areas. Some fully interior public spaces were also allowed.

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open spaces (Figure 14), the reality often proved different. Many private open spaces were under-designed, felt residual, and often destroyed the spatial continuity of the public realm. Towers-in-the-park too often wound up as towers-in-the-parking lot.

Private development may have benefited from greater flexibility, but public space was hurt by the lack of quality it allowed.

Use Regulation The 1961 Resolution kept the broad usebased zoning district categories, replacing Unlimited Districts with Manufacturing Districts, and creating a series of subcategories within each district type, roughly corresponding to density levels.

Eighteen Use Groups were created, and a 16-by-18 matrix showed which Use Groups were allowed in each zoning district. The Resolution text lists specific allowable uses for each Use Group—page after page of everything from frozen food lockers to umbrella repair shops. The lists have The cover graphic from “Plan for Rezoning The City presented a problem as uses change over of New York,” 1950, shows the desired transition time and new ones are invented. The uses from traditional stepped setbacks under a sky of 1961 are not the uses of today: typewriter exposure plane to sheer modernist towers on a base. stores are listed specifically, while there is no Image source: nyc.gov mention of computers. The 1961 Resolution may have been more forward looking and 2007, and 2009, each revision aimed at more flexible in its vision for building form, improving the quality of the spaces. The but it regulated uses based on a more City is still trying to wrestle with the quality shortsighted, less flexible view that bears issue, and recently proposed completely the date stamp of a particular year. privatizing the poor quality POPS along Water Street in Lower Manhattan, in In the 1961 reworking of use districts, exchange for improvements to the quality no residential uses could be built of other parts the public realm. in manufacturing districts, and no manufacturing uses were permitted in The failure of 1961 bulk regulations generally residential districts. Rather than being lies in the poor quality of the open spaces, based on a nested hierarchy of increasing both public and private, that it created. noxiousness, manufacturing uses and Although inspired by Corbusier-like visions residential uses are considered mutually of widely spaced towers amidst verdant

Figure 14

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Marketplace Regulation While FAR created a currency of development units that could be priced and traded, the regulation of uses under the new zoning resolution had unintended marketplace consequences, and often proved a poor tool for regulating the market.

Under the 1961 code, residential uses and industrial uses were completely segregated.

The idea, as it had been in 1916, was partly to protect residential neighborhoods from the incursion of noxious uses. But the new law was also written to support the manufacturing economy by creating districts where industrial uses were no longer in competition with residential uses for the same land. However, between 1950 and 1983, manufacturing employment declined 58 percent in the city,11 a trend which the law could neither foresee nor stop.

Figure 15

Cover of “The Wastelands of New York City,” 1962, a report by the City Club of New York that examined the high vacancy rates of commercial loft space in Soho.

Photo ©Jack Robbins at The Skyscraper Museum.

noxious to each other, and factory workers could no longer live where they work.

Commercial uses were also, in theory, not permitted in residential districts, though in practice commercial overlays and residential designation equivalents allow this, further complicating the supposed separation of uses. One might ask whether the main purpose of the zoning was to separate or integrate residential and commercial uses, and whether the baseline assumption of separation for these uses is the right starting point.

In the Soho neighborhood of 1961, the old manufacturing loft buildings were not suited to new post-war manufacturing methods, and were being slowly abandoned by industry. Zoned for manufacturing, the area did not allow residential uses. With little demand from manufacturers, rents dropped low enough to become attractive as studios for artists with little income (Figure 15).

Those artists soon began living, illegally, in their studio spaces. Illegality helped keep prices low, and more and more people took advantage of the blind eye City government had turned toward the use infractions.

Eventually zoning was forced to catch up with reality, and, in 1971, residences were allowed. The revised zoning again sought to protect a threatened existing use, the nowvalued artists’ neighborhood. Residential uses were restricted to “live-work quarters” for artists, who had to be certified by the Department of Cultural Affairs. If the

11 Salins, Peter D., “Simple Rules for a Complex Society: Redesigning New York’s Zoning”, City Journal, Winter 1993.

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original 1961 zoning had allowed both residential and manufacturing uses from the start, the residential conversion of the neighborhood might have happened much more quickly and fluidly. On the other hand, the lack of a free market kept rents low, and promoted the birth of a “black market” arts district, now world famous.

Sunset Park in Brooklyn represents a variation on the same story. Despite a sizable number of existing residences, the neighborhood was zoned in 1961 as a Manufacturing district, with the idea of promoting industrial uses. Instead these uses declined, and grandfathered residents stayed. Their homes deteriorated as the non-conforming use made obtaining insurance or mortgages difficult, which inhibited rehabilitation or building improvements. In 1972, zoning again bowed to reality and parts of the area were rezoned as residential.12 In both Sunset Park and Soho, zoning failed to anticipate, and was slow to respond to, changing economic conditions, namely the decline of manufacturing uses. Zoning restricted the basic market recalibration that might have happened in a more free market. In the case of Soho this lead to the rebirth and revitalization of an area by artists. In the case of Sunset Park, it stifled the basic upkeep and growth of a residential community. It is hard to say if either of these was more harmful or more beneficial ultimately.

But what can be said is that neither was an intended consequence, and that zoning regulations took a decade to adjust to economic reality. As a lever for government to use in influencing the economy, zoning is hard to calibrate, too

slow to respond to changes, and in many ways powerless in the face of much larger economic forces.

AFTER 1961: ZONING UNDERMINED In the first two decades that followed the 1961 Resolution, a wide range of forces, from new areas of law to new planning practices and policies, to new lifestyles, began to undermine and alter the modernist vision of the 1961 code. The same year that the new zoning was enacted, Jane Jacobs published, The Death and Life of Great American Cities, a watershed in urban planning. She argued directly against the prevailing sensibilities of the 1950s that had given birth to the new zoning. Jacobs advocated for mixed uses, pedestrian activity, density, and the idea that cities should be made up of buildings from different eras, not wiped clean and rebuilt. She writes that, “Intricate minglings of different uses in cities are not a form of chaos. On the contrary, they represent a complex and highly developed form of order.” 13 A few years later, in 1966, Robert Venturi’s gentle manifesto Complexity and Contradiction in Architecture took an allied stance from a more purely aesthetic perspective. Jacobs and Venturi both celebrated a kind of messiness—of cities and buildings—and pointed away from the overzealously orderly sanitization offered by modernist planners and architects, and embodied in the 1961 code.

In 1963 the much-protested demolition of the neoclassical, McKim Mead and Whitedesigned Pennsylvania Station building led to the birth of the historic preservation movement and the creation in 1965 of the Landmarks Preservation Commission and the Landmarks Preservation Law that it

12 Norman Marcus, Esq., “New York City Zoning—1961-1991: Turning Back The Clock—But With An Up-To-The-Minute Social Agenda,” Fordham Urban Law Journal, Volume 19, Issue 3, 1991, Article 11.

13 Jacobs, Jane, Death and Life of Great American Cities, 1961.

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Figure 16

Figure 17

Picketers outside of Penn Station in 1961.

Photo courtesy of David Hirsch.

The demolition of Penn Station.

Photo courtesy of Norman McGrath.

administers (Figures 16 & 17). The creation of protected historic districts took over one of the original functions of zoning: to ensure stability and secure property values against radical change. Like Zoning, preservation law can often favor the haves over the havenots, and by constraining development, unbalance market forces. Preservation law was also a reaction against the planning principles reflected in the 1961 Zoning Law; a legal bulwark against the excesses of urban renewal and the modernist clearcutting of wide swathes of the city for modern towers or multi-lane highways.

brought the environmental consequences of unregulated industrialization into the collective political consciousness. New laws at the federal level included the Clean Air Act (1970), the Water Pollution Control Act (1972), the National Environmental Policy Act (NEPA) (1970) creating the Environmental Protection Agency (EPA), the Safe Drinking Water Act (1974), the Resource Conservation and Recovery Act (1976), and the Clean Water Act (1977).14 Zoning had in many ways originated to protect the public health, a crude form of environmental protection law. But as air, water, and soil contamination paid no attention to zoning boundaries, true environmental laws that focused on the sources and measurable contamination were required to address the growing

The same era also saw the birth of an environmental movement and new environmental protection laws. Books like Rachel Carson’s 1962 Silent Spring

14 “ Environmental Law”, last modified 1 October, 2016, https://en.wikipedia.org/wiki/Environmental_law

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problem. As with historic preservation, the new laws provided a more targeted and specific protection from a danger that was part of the original rationale for zoning.

Not long after it took effect, the 1961 zoning law itself also began to be changed in response to some of the same societal forces. In 1967 Special Districts were created—the first one to preserve theaters around Times Square. Special Districts nullify and/or augment existing zoning in a specific area. To date there are 44 Special Districts in the city. In the 1980s the Department of City Planning introduced Contextual Districts and Quality Housing.

These amendments to zoning law allowed, and in some places required, developers to build buildings that were closer in scale and form to more traditional, historic, New York City buildings.

Both the 1916 and 1961 resolutions were written with a clear eye toward reducing overcrowding. Ironically the 1961 code was written at a time of decreasing population in the city: between 1960 and 1980, New York City population actually fell by 10 percent. This decline was part of a larger trend of suburbanization and “white flight” from urban centers across the country. The suburbanization movement was inherently segregationist—both along the racial lines inherent in the term “white flight”, and along the lines of traditional zoning land use categories. New post-war suburban communities were almost exclusively residential, with little threat of encroaching commercial uses, much less industrial ones.

However, the non-residential uses soon followed suit, and the shopping mall, the office park, and the industrial park became

emblems of a completely use-segregated suburban lifestyle. The separation of uses which had originally been created by zoning for the close quarters of urban settings became both a legal, and more importantly, a cultural part of the suburban lifestyle. New subdivisions targeted a narrow income range and often enforced racial discrimination.

Suburbanization strongly reinforced use separation, class stratification, and racial segregation. Given that use regulation in zoning had been born in large part from racist motivations in 1916, and re-codified in 1961 in support of large scale slum clearance, it should be unsurprising that use separation and racial segregation went hand in hand as part of suburbanization.

All of these trends—the urban and architectural design ethos of Jacobs and Venturi, historic preservation, environmentalism, and suburbanization— served to undercut the raisons d’etre and the force of zoning law. Historic preservation and environmentalism overtook zoning with more stringent and focused laws in areas that zoning had once been the primary (if ineffective) means of regulation. An appreciation for the messiness of mixed uses, traditional urban forms, and complex architectural expression, undermined the modernist planning ideals of towers-in-the-park and slum clearance.

And suburbanization brought the racism and use separation first codified in zoning to its logical and cultural extreme.

ZONING TODAY Is Zoning an Effective Tool for Regulation?

Today New York zoning regulation is an unmanageable mess that does not reflect the city we want to be, nor even the city

Jack Robbins | FXFOWLE

Figure 18

From the Municipal Art Society report “Accidental Skyline,” 2016, showing shadows cast on Central Park by new Midtown “supertall” towers.

that exists. The perpetual modifications and amendments have been largely additive, creating Special Districts or carving out exemptions, and the result is increasingly unwieldy and impenetrable. An industry of experts and interpreters has grown up to assist developers in navigating it. A great deal of City bureaucracy and budget among agencies, Borough offices, and community boards, is dedicated to understanding, managing, and enforcing it. Civic and neighborhood groups spend their time trying to make sure that both the City and developers are playing

by the rules. Navigating the processes required for zoning compliance, especially for exemptions or changes, is effectively available only to those with the means to hire the expertise, and to commit extensive resources of time and money. Only an elite echelon of developers and large institutions have those resources to wring extra square footage from the code.

In New York City, the only major American city that has never done comprehensive master planning, zoning has also become the de-facto planning tool. But zoning law lacks the key elements of any successful master plan: clear vision, well-defined principles, straightforward guidelines, direct paths to implementation, and public understanding and support. The city

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described by our zoning does not even reflect the city we live in—nor maybe even the city we want to live in. A recent New York Times article calculated that 40 percent of the buildings in Manhattan—many of them well loved—do not comply with existing zoning and could not be built today.

If the City were entirely remade to comply, would we even recognize it as New York?

Ever the epicenter of development controversy, the perceived threat of building height is likely a permanent fixture of urban change. Recent zoning amendments to redress some unintended consequences of height limits, making minor increases (five feet in some cases) to to allow for better ground floor street activation or higher residential ceiling heights, have faced stiff neighborhood opposition. Outcry has also been strong over a new class of (as-of-right) supertall residential buildings, particularly along 57th Street in Midtown, where developers have been able to buy up small amounts of excess floor area over a large area of lots, transfer it, and employ relatively small floorplates to achieve stratospheric heights. The shadows cast on Central Park are a particular flashpoint (Figure 18). The resulting towers are thin, spire-like, and widely spaced, not unlike the intent of the original 1916 25 percent tower rule, their shadows moving rapidly across Central Park like sundial needles.

In this sense zoning might be seen to be achieving a kind of balance between private development and safeguarding public space. Unfortunately the result may be more an unintended product of finite FAR and market forces (the high value of views and small exclusive floorplates) than deliberate bulk controls. Zoning should employ bulk

controls that protect the public realm (and private property) against excesses, while still giving enough play to market dynamics.

Zoning, from its start, was intended as a tool to protect public space, and later also to create it. But neither the quantity nor the quality of open space created through zoning has been sufficient to keep up with the impact of increasing density. Nor does zoning provide for the ongoing upkeep and maintenance of the open spaces.

A piecemeal approach that burdens individual developers with design cannot produce the scale and quality of public space needed for higher density cities.

More success may be seen in the approach of the West Chelsea Special District, created in large part to underwrite the development of the High Line Park. In this model, development supports the open space, and directly benefits from proximity of that open space. The design and implementation of the public space, however, is independent of the individual developers.

Increased urban density requires more than just open space. Zoning must link increases in density directly to the other amenities and infrastructure that are needed to make a denser city more livable and functional. Public benefits should include infrastructure such as mass transportation or flood protection, whose durability and lifespan are commensurate with the additional density, and whose zone of benefit extends beyond an individual development. Required “soft” benefits, such as specific uses, may not stay relevant as neighborhoods and needs change, and can be difficult to enforce over the life a building.

Design and implementation of fixed public benefits should be entrusted to entities

Jack Robbins | FXFOWLE

Zoning-Separated Uses

Integrated Use Development

Figure 19

Integrated Use seeks to combine uses vertically in a single building.

whose mission aligns with the specific public good, not developers who may treat it as a burden to be satisfied as minimally as possible. This approach would in particular benefit projects whose large scale requires centralized planning, coordination, and design, such as district-level resiliency measures.

Neighborhood-scale flood berms, for example, could be built far more economically, on a per capita or per square foot basis, than the building-by-building approach of regulations that put the flood-proofing burden on individual property owners.

Does Zoning Promote Values We Believe In? Use separation is a core element of zoning that no longer reflects the values of society today, namely our belief in greater social equity. Use regulation was born from a caste system of a different century, and amplified by the racist segregation that characterized mid-century urban planning. The creators of both zoning codes saw impoverished, racialminority, city neighborhoods as areas to be

abandoned or razed. Surely this is no longer our view today. While use separation may have at times protected lower income areas from incursions of uses that would have had a negative impact, the majority of the history of use separation has benefited wealthier, more established neighborhoods at the expense of lower socio-economic groups.

As a mechanism to protect property value, use regulation inherently bestows greater benefits to those with more property to protect. Its inequitable distribution of benefit and burden is fundamentally regressive. While neighborhood stability can benefit a broader common good (there may indeed have been some broader value in preserving 5th Avenue as a high-class enclave in 1916) this must be weighed against the harm to those who get no direct benefit.

Markets and uses change faster than zoning, and re-zoning efforts are always playing catch-up. The 2004 rezoning of the Brooklyn Waterfront created a residential

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monoculture, failing to anticipate the need Council of Economic Advisers has said, for a greater mix of uses. FXFOWLE’s “Zoning restrictions—be they in the form Greenpoint Terminal Market project is of minimum lot sizes, off-street parking among several that seek new zoning to requirements, height limits, prohibitions on redress this oversight, with a strategy multifamily housing, or lengthy permitting that integrates commercial, residential, processes—are supply constraints. and light manufacturing uses. Similar ...Restricted supply leads to higher prices recent projects include the Domino Sugar and less affordability.” 15 Inflated prices Redevelopment, 25 Kent Street, and the disproportionately affect the poor because City’s own 2016 RFP for Long Island City those with lower incomes spend a greater Mixed Use Redevelopment. Each of these percentage of their income on housing.16 turns to a new hybrid that mixes uses which As a tool for the government to guide the zoning would have formerly kept apart. economy, zoning is too coarse, sluggish, This new building typology pushes beyond and often ineffectual. The Federal Reserve standard mixed use developments toward regulates interest rates on a quarterly basis something that might be called integrated and government spending budgets are use developments (Figure 19). Integrated passed annually, but it takes five to ten use typologies allow for a kind of cross years to alter zoning, a pace that can never subsidization, similar to the underlying hope to respond to economic cycles. mechanism of Inclusionary Housing, where In general, economic drivers have become more profitable uses subsidize the less less tied to place, and a place-based profitable ones which are nonetheless regulation of the economy makes less needed for a balanced and resilient urban sense. Nonetheless, in New York City real economy. Currently, residential space estate and development represent a sizable commands a high enough price that it can portion of the economy, so the economic help subsidize low rent space, such as the impact of zoning must be a factor in its flexible work space needed by creative, tech, creation and management. Zoning should and light-industrial uses. Although this may ideally serve as a damper that mitigates change in the future, by integrating uses, sharper fluctuations and instability in premium uses can always subsidize less the real estate economy, but it also must profitable, but desired, uses. As markets find a way to be more flexible and more change, integrated use development would responsive to economic change. allow for more fluid conversions of buildings and neighborhoods from one use to another. CONCLUSION Edward Glaser and other urban economists have written about how zoning fundamentally restricts the supply of land (or allowable development area) and how that restricted supply in the marketplace causes prices to rise. Jason Furman, chairman of the White House’s

The zoning resolutions of 1916 and 1961 each took years of debate and in-depth study to create. They were each based on the morals and the understanding of social and economic forces of their day. Our morals and our understanding of those forces have greatly evolved. Our zoning should too.

15 “ Barriers to Shared Growth: The Case of Land Use Regulation and Economic Rents”, Remarks by Jason Furman, Chairman, Council of Economic Advisers, The Urban Institute, November 20, 2015 16 http://www.forbes.com/sites/scottbeyer/2016/09/26/obama-administration-report-attacksnimbyism-and-zoning/#163be0b16e72

Jack Robbins | FXFOWLE

Zoning should be rethought to align with the values we want for our city and our future, to embrace integrated uses, equitable opportunity, and economic responsiveness.

Of the three categories of regulation—bulk, use, and marketplace—bulk regulation seems to be the least problematic in terms of its underlying values. There, the problems are more in the details and mechanisms, not the essential aim of shaping private development to protect and enhance public space. The regulation of uses seems far more problematic, and should be fundamentally questioned. As cities are intrinsically places that bring different people and different functions together, shouldn’t city zoning be encouraging integration of uses, not a suburbanstyle segregation? Finally, as a tool for marketplace regulation, zoning seems important, but hopelessly clumsy. How can zoning be used to help create a stable marketplace but become more flexible in response to changing economic realities and macro-economic forces? Answering these questions will not be quick or easy.

We should start the studies now.

The New York City Zoning Resolution is like a house that has been perpetually added to and patched and cluttered with different pieces of furniture acquired slowly over time.

There is no question that every modification, every new table, has some appeal, answered some need at one time. But it is a mess, a mess we have lived with it for so long we can no longer truly see it for what it is. And even if we could peel away all the layers and the clutter and the new additions, would we still want to live in that house whose foundation was laid a century ago,

and was entirely rebuilt in 1961? Since that time our family has grown, we live differently, we are more inclusive, our jobs have changed, and yes, we are, in a collective sense, older and wiser.

It is time to build a new house.

New York City Zoning should be rebuilt from scratch. Its present form does not reflect the values of our world today and is nearly unmanageable from an operational point of view. It bears the strong imprint of two eras that were less equitable in their thinking than ours, and, despite the best of intentions, it continues to reinforce those bygone values. The process of rebuilding our house—rewriting zoning—should begin with an understanding of our own values, and how we want zoning to impart them.

It must integrate what we’ve learned over the last 100 years: build on the pieces that work, jettison those that don’t, recognize the limitations and be wary of unintended consequences. It is a scary thing to give up on a house that we have spent so long in, lavished with love and attention, watched our city grow up in. But we owe it to ourselves to build a house of zoning that reflects the best of who we are, and who we hope to be.

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Jack Robbins | FXFOWLE

Jack Robbins brings an exceptional combination of talents to his work as both an architect and urban designer. He engages the complex forces and challenges of urban environments with a design-oriented approach.

Drawing on deep expertise and international experience, he generates insightful and creative solutions for a wide range of public, private, and institutional clients.

He has extensive experience leading large, multi-disciplinary teams in collaborative projects, delivering savvy strategies and implementable plans. Jack’s passion is cities and the buildings, spaces, and infrastructure that make them vibrant and sustainable.

He teaches, writes, and speaks frequently at conferences and symposia.

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