New York City Has the Country’s Most Elaborate Zoning Code. Why Isn’t It Protecting Us From Luxury Overgrowth?

By Samuel Stein

Construction is booming in New York City, and, as the real-time construction map recently released by the New York City Department of Buildings shows, a lot of the new development is wildly out of context with the surrounding neighborhoods. While scale is not sacred, many of these buildings pose quite specific problems for their neighbors, as in the case of a proposed string of towers on Franklin Avenue that would cast looming shadows over the Brooklyn Botanical Gardens. A luxury development whose size and shape would make a public garden obsolete is exactly the kind of development that city planners should be working overtime to prevent.

Map provided by: SCALAR Architecture with Terreform Center for Advanced Urban Research

Map provided by: SCALAR Architecture with Terreform Center for Advanced Urban Research

The main tool city planners use for such regulation is zoning — the set of rules that regulate what can be built where, and at what size. New York City has one of the world’s most elaborate zoning codes, with nearly 4,000 pages of maps and text delineating over 150 different zoning types. Given the code’s power and complexity, one might think that the city would use zoning to prevent property owners from running roughshod over neighborhoods and communities. Instead, however, contemporary planners and politicians use zoning to protect the real estate industry from the people, rather than to protect the people from the real estate industry.

Isn’t this precisely the opposite of what zoning is supposed to do? Isn’t the whole point of zoning to prevent market chaos and create a more orderly, predictable, healthy and harmonious urban landscape? To answer these questions, we must return to the roots of the city’s zoning code.

Zoning is a way for the state to control the extent, shape and pattern of urban development. New York City didn’t invent zoning — in the US context, that distinction probably goes to Modesto, California — but in 1916 it became the first big city to codify a complex zoning code, which then became a touchstone for many other cities.

According to planning lore, one particular development sparked this regulatory overhaul: 120 Broadway, the downtown double skyscraper known ironically as the Equitable Building. Sited on Broadway between Cedar and Pine, the building rose to thirty-eight stories. What pissed off civic groups, however, was less the height of the structure than its shape: the building goes all the way to the lot’s edge, then rises up toward the sky without a single set-back. The developers and architects were accused of urban fratricide, killing the life of the surrounding area by casting a heavy shadow and blocking the flow of air. With this architectural affront in mind, the zoning code did not ban tall buildings per se — construction on the Chrysler Building would begin just twelve years later — but it regulated their form in order to minimize the impact on their neighbors’ health and safety, and to maximize the flow of light and air.

Times have changed. In 1916, the Equitable Building was the problem planners sought to solve; today, it is literally the vantage point from which they view the city: the Department of City Planning has now moved its operations to 120 Broadway, managing the city’s zoning from inside the very building the code was written to oppose.

In another sense, however, contemporary zoning practice is quite in concert with the code’s original intentions. In addition to controlling the built environment, a second impulse motivated the establishment of New York City’s zoning code: the desire to exclude.

It was not just the Equitable building that irked city leaders, but also the proximity of garment manufacturing to high-end shopping. In Kristina Ford’s book The Trouble with City Planning, the author notes that “the proprietors of B. Altman and other fine clothing establishments had noticed that an increasing number of garment-making factories were turning up near their prestigious Fifth Avenue addresses, and these owners feared that their lady customers’ delicate sensibilities might be disturbed by seeing sweatshops where poorly paid and underage immigrant workers sewed lovely dresses for fifteen hours at a stretch under terrible conditions.” Joel Schwartz, in his classic book The New York Approach, puts a finer point on the bigotry involved in such a lobbying push. The Fifth Avenue Association argued that “‘Hebrews’ swarmed from nearby lofts at lunchtime, driving away the patrons of exclusive shops,” so they pushed for anti-industrial zoning that would, in their words, “make it impossible for factories to exist in the heart of New York’s best shopping section.”

Many of those department store owners, Altman included, were themselves Jewish. But they were wealthy capitalists, very much unlike the rabble-rousing immigrants who worked nearby. In the ensuing years, most of the original department stores have since closed; B. Altman is now the CUNY Graduate Center, where I am a student. If the Fifth Avenue Association’s goal was to keep Marxist Jews off the block, their plan was a historical failure. But they were successful in restricting the spread of industry, and in using zoning to reinforce segregation.

New York City’s zoning policies are still discriminatory, but often through different means. In general, there are two types of zoning regulations: use type, which governs the kind of activities (industrial, commercial, residential, etc.) that can happen in a given area, and bulk, which governs the size and shape of new buildings. The Fifth Avenue Association urged the city to keep out poor Jews through use type designations that restricted industry, and thus industrial workers. Lobbyists like the Real Estate Board of New York now urge the city to gentrify majority-people of color neighborhoods by increasing bulk allowances in working class neighborhoods. Given the dynamics of the contemporary real estate market, this virtually ensures a proliferation of luxury construction. Where real estate capital arrives, displacement follows: landlords kick out residents in order to renovate their units or build exclusive new properties; area rents rise prohibitively as a result of intensive capital investment; and pretty soon, the entire neighborhood undergoes a swift and severe transformation.

Equitable Building. Source: The Skyscraper Museum

Equitable Building. Source: The Skyscraper Museum

As for the other original intention of zoning — submitting private development to a modicum of public control — this impulse is diminishing rapidly. Where New York City uses its power to control the built environment, it often does so in order to protect privilege rather than limit real estate power. Restrictive zoning is enforced in upper-class White neighborhoods that maintain relatively low densities, and thus keeps homes big, expansive and separate. Witness, for example, Forest Hills, which, despite being four express stops from Manhattan, maintains a largely suburban landscape.

In the rest of the city, and particularly in those working class and majority-people of color areas now targeted for rezoning, planners operating out of the Equitable Building have given up on the idea of using zoning to restrict real estate. Instead, they (and, crucially, the politicians who appoint their bosses) see zoning as a means to channel investment and extract minor concessions from developers, who are given permission to build ever larger and crappier structures as long as they produce some public benefit — so-called “affordable” housing, open spaces, etc. The economic, social and environmental harm these developments do, however, is always greater than the social good they provide. This is entirely intentional: the system only works if developers want to participate, so planners ensure that the terms of negotiation are ever in their favor. As architect Michael Sorkin argues in his latest collection, What Goes Up, “these deals are only viable when developers feel they have more to gain than they must give back, and so each of these exchanges is, by definition, a bad deal for the public.”

The solution to this problem is not, as libertarian urbanists often argue, to get rid of zoning altogether. That would only increase the real estate industry’s capacity for demolition and displacement. The problem is not zoning per se, but the fact that those who administer it are beholden to developers and their agendas. This was already somewhat the case in 1916, but it is far more so today, when real estate has become a leading global investment strategy and cities are viewed as merely vehicles for accumulation. Zoning may not be the solution to the problem, but it is certainly not the root of it, either. If we want a better zoning system, we will have to take action to reduce real estate’s power, which is today at historic highs.

Samuel Stein is a Geography PhD student at the CUNY Graduate Center and an Urban Studies instructor at Hunter College. In February, 2019, Verso will publish his first book, Capital City: Gentrification and the Real Estate State.