The Market for TDRs in New York City
Vicki Been, John Infranca, and Josiah Madar
Furman Center for Real Estate and Urban Policy
New York University
November 1, 2012 Draft
Introduction
New York City’s zoning code, like most traditional codes, limits the square footage of the
building that a developer can construct on any particular land parcel in the city. In certain
circumstances, the zoning code permits a landowner to transfer unused development capacity from
its parcel to other parcels of land, effectively increasing the buildable area at the receiving site. A
number of different transfer methods exist. Zoning lot mergers permit transfers as-of-right (without
the requirement of any review or approval process), but only between adjacent properties.
Landmark transfers allow transfers from landmarked buildings across a street or intersection, subject
to certain restrictions and approvals. A number of special transfer programs allow transfers from
specified granting zones or sites to specified receiving zones, usually within the same neighborhood.
These transferable development rights (TDR) programs are used to advance a variety of planning
and development goals, including directing the location and intensity of development, alleviating the
hardships imposed on property owners by landmark or other restrictions, and encouraging the
development of affordable housing.
In this paper we explore the market for TDRs in New York City by studying a unique data
set assembled by the Furman Center for Real Estate and Urban Policy. By examining legal
documents filed with New York’s City Register, the Furman Center identified over 400 transactions
involving the transfer of development rights that took place between January 2003 to June 2011.
While the transactions are publicly recorded, lawyers register them in many different ways, and
New York City has no centralized system to easily identify and track the transfers, many of which
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can be executed without any public approval process. The Furman Center’s database provides the
most comprehensive information available on these transfers.
The database allows us examine how developers have used development rights transfers in
lieu of, or in conjunction with, other methods for increasing allowable development size, including
developer-initiated rezonings, incentive zoning bonuses, and lot assembly.1 The database also
allows us to analyze the determinants of TDR prices, including the relative supply of development
rights available to a buyer, the complexity of the transfer process, a development site’s location
within a block, and the project’s final size.
This paper offers the first comprehensive empirical analysis of development rights transfers
in New York City. 2 A number of legal scholars in the 1970s and 1980s -- including John
Costonis,3 Norman Marcus,4 and David Alan Richards,5 among others6 -- analyzed the legal issues
affecting development rights transfers in New York and elsewhere, and proposed new conceptual
frameworks for thinking about TDRs. This early literature helped shape the development and
regulatory structure of New York City’s TDR programs. While later legal scholars have described
“When planning a structure that, on its ‘footprint,’ exceeds applicable FAR regulations, developers naturally have
other routes available under the Zoning Resolution to secure permission for additional bulk, including incorporation of
plazas or other amenities, zoning amendments or special permits, and variances. But the development rights transfer
technique, effected through as-of-right zoning lot merger, has enabled the most aggressive builders to bypass the
restrictions that the law would otherwise impose.” David A. Richards, Downtown Growth Control Through
Development Rights Transfer, 21 REAL PROP. PROB. & TR. J. 435, 472 (1986).
2
The only other study of how TDRs are used that we are aware was published in 1989 by the City’s Department of City
Planning and examined new residential construction on the Upper East Side of Manhattan. It found that 36 of 77 new
residential buildings used zoning lot mergers, and the rights transferred made up 12.5% of the total new floor area
constructed. Arik Levinson, Why oppose TDRs?: Transferable development rights can increase overall development,
27 REG. SCI. & URB. ECONS. 283 (1997) (citing NEW YORK CITY DEPARTMENT OF CITY PLANNING, NYC DCP #89-46,
REGULATING RESIDENTIAL TOWERS AND PLAZAS: ISSUES AND OPTIONS (1989)).
3
JOHN J. COSTONIS, SPACE ADRIFT: SAVING URBAN LANDMARKS THROUGH THE CHICAGO PLAN (1974); John Costonis,
The Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks, 85 HARV. L. REV. 574 (1972); John J.
Costonis, Development Rights Transfer: An Exploratory Essay, 83 YALE L.J. 75 (1973).
4
Norman Marcus, Air Rights in New York City: TDR, Zoning Lot Merger and the Well-Considered Plan, 50 BROOK. L.
REV. 867 (1984); Norman Marcus, Mandatory Development Rights Transfer and the Taking Clause: The Case of
Manhattan's Tudor City Parks, 24 BUFFALO L. REV. 77 (1975); Norman Marcus, Air Rights Transfer in New York City,
36 LAW & CONTEMP. PROBS. 372 (1971).
5
Richards, supra note 1; David A. Richards, Note, Development Rights Transfer in New York City, 82 YALE L.J. 338
(1972).
6
Hershel J. Richman & Lane H. Kendig, Transfer Development Rights -- A Pragmatic View, 9 URB. LAW. 571 (1977);
Note, The Unconstitutionality of Transferable Development Rights , 84 YALE L.J. 1101 (1975).
1
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and analyzed various aspects of TDR programs, none explore how developers actually use TDRs or
assess the market for TDRs.7
This paper advances the literature, not only by presenting findings from the first broad
empirical study of development rights transactions in New York City, but also by evaluating what
these transactions reveal about the decision-making processes of developers. Further, the findings
we report provide valuable insights for municipal officials seeking to harness the private market for
development rights to serve particular public purposes.
Our initial analysis confirms that, as one would predict, developers prefer methods for
obtaining additional capacity at a development site that involve less uncertainty and less expense.
Zoning lot mergers, district-wide development rights transfer programs that do not require the grant
of a special permit, and lot assemblies accordingly prove more popular than petitioning for an
upzoning or seeking a development bonus through the City’s Inclusionary Housing Program.8 In
addition, transfers that involve fewer transaction costs and greater certainty command higher prices
than those that require regulatory approval. To the extent that a local government wishes to
encourage development, our results accordingly suggest that it should introduce programs that do
not require individualized review and approval of each transfer.
In Part I of this paper we review the concept of transferable development rights and describe
the history and regulations governing the transfer programs that New York City has adopted. We
describe the Furman Center’s database in Part II, and provide an overview of what it reveals about
the market for transferable development rights in New York City. Part III considers the factors that
7
A number of articles appearing in the economics literature in the mid- to late-1970s discussed TDRs and their
economic impacts. See, e.g., David E. Mills, Transferable Development Rights Markets, 7 J. URB. ECON. 63 (1980);
Bruce E. Carpenter & Dennis R. Heffley, Spatial-Equilibrium Analysis of Transferable Development Rights, 12 J. URB.
ECON. 238, 241, 251 (1982) (developing model of “simple TDR system” and analyzing “market TDR supply and
demand functions . . . within a competitive spatial economy”); S.I. Schwartz & D.E. Hansen, Two Methods for
Preserving Agricultural Land at the Urban Fringe: Use-Value Assessment and Tranferable Development Rights, 2
AGRIC. & ENV’T 165 (1975). But these analyses typically focused on simple forms of TDRs quite different from either
the zoning lot mergers typically used to transfer development rights in New York City or the complex special transfer
districts the City has recently used to govern TDR transfers.
8
See infra note – and accompanying text.
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might affect developer preferences for certain forms of TDRs and for other mechanisms for
increasing project size. We then examine how TDRs have been used in conjunction with other
mechanisms for increasing the size of a development project. Part IV [to be added] explores the
determinants of the prices paid for development rights. Part V concludes with recommendations for
policymakers about how to make TDR programs more effective.
I.
General Background on Transferable Development Rights
A. The Concept of Transferable Development Rights
Transferable development rights programs permit owners of land that is not developed to its
full zoning capacity to transfer all or some portion of the right to develop that land to another parcel
of land.9 The owner of the receiving parcel is then allowed to develop her property at a higher
capacity than permitted under the existing zoning regulations. The granting parcel may be
developed below the allowable capacity because of a separate regulatory restriction, such as a
historic preservation ordinance or environmental regulation, or because the owner has simply chosen
not to develop to the full permitted capacity. TDR programs allow such owners to recoup some of
the value of this unused capacity through a sale of the development rights on the private market.10
Several hundred TDR programs, with a range of structures and purposes, exist throughout
the United States and internationally.11 Among the best known are Montgomery County,
9
See Mills, supra note 7, at 63-64.
See Mills, supra note 7 (“[T]he attractiveness of TDR is held to be the equitable treatment it affords
landowners. Specifically, it avoids arbitrary rationing of gains from development associated with direct controls.
DRs are assigned on some equitable basis and the land market (working within the constraint of whatever
direct controls may remain) determines the most efficient use for every parcel.”).
11
See Rick Pruetz & Erica Pruetz, Transfer of Development Rights Turns 40, PLAN. & ENVTL L., June 2007, at 3, 3 (“We
know of 181 TDR programs in 33 states that have preserved at least 300,000 acres of farmland, natural areas, and open
space to date.”); ARTHUR C. NELSON, ET AL., THE TDR HANDBOOK 131 (identifying 239 communities in the United
States with TDR programs).
10
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Maryland’s farmland preservation program and New Jersey’s Pinelands program.12 In addition to
preservation of farmland and environmentally sensitive lands, program purposes include the
preservation of historic sites and the historic or rural character of particular neighborhoods, as well
as the development of affordable housing and broader urban design and revitalization goals.13 A
number of TDR programs serve multiple goals.
New York’s TDR programs also serve a range of purposes.14 Writing in 1986, David Alan
Richards distilled four goals that had been reflected in New York’s TDR programs up to that time:
(1) “promot[ing] growth in the municipal tax base through new construction;” (2) preserving
resources, including landmarks; (3) obtaining public amenities without municipal expenditure; and
(4) preserving an industry, such as the theater district.”15 In recent years, New York City has
enlisted TDRs as a substitute for upzoning an area, to “carefully direct the form and intensity of
permissible development in a way that reflects the goals (and structure) of more traditional
zoning.”16
Nationally, TDR programs also differ in how they permit unused capacity at a granting site
to be converted into more intense development at a receiving site. Some programs convert the
preservation of, for example, a certain number of acres of farmland into a defined number of
development credits.17 These credits allow for a specified amount of additional density at the
receiving site -- one additional residential unit for ten acres of preserved farmland, for instance. In
12
Pruetz & Pruetz, supra note 11, at 4; see also Sarah J. Stevenson, Note, Banking on TDRs: The Government's Role as
Banker of Transferable Development Rights, 73 N.Y.U. L. REV. 1329, 1347-58 (1998) (discussing TDR programs in
New Jersey, Montgomery County, and Seattle).
13
NELSON, supra note 11, at 131-227 (cataloguing and discussing TDR programs by purpose); see also RESOURCES FOR
THE FUTURE, TRANSFER OF DEVELOPMENT RIGHTS IN U.S. COMMUNITIES (2007) (discussing ten primarily rural and
suburban examples of TDR programs).
14
For a broader discussion of the changing uses of TDRs in New York City see generally Vicki Been & John Infranca,
Transferable Development Rights Programs: “Post” Zoning?, 78 BKLYN. L. REV. (forthcoming 2013).
15
Richards, supra note 1, at 474-75.
16
Been & Infranca, supra note 14, at 18.
17
See NELSON, supra note 11, at 3.
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New York City, the transfer of development rights occurs on a one-to-one basis, with transfers
taking the form of a specific number of square feet of floor area.
Another critical difference in the design of TDR programs is in the rules they use to govern
the transfer of the rights. Some programs specify the geographic boundaries of the sites that can
receive transfers (with significant variation in the rationale for, and breadth of, those boundaries),
while others use the continguity of properties to limit transfers. In New York City, the most basic
TDR transactions -- zoning lot mergers -- can occur only between lots that are contiguous for a
minimum of ten feet or are connected by a chain of contiguous lots, all of which must agree to be
considered part of the same lot for zoning compliance purposes. As such, the potential receiving
sites for a given lot’s undeveloped capacity are limited to, at most, lots on the same block. The
number of potential receiving sites will depend, of course, not only on the regulations governing
transfer, but also on how many of sites that legally could receive the rights are likely to be
redeveloped in a manner that would make the rights useful the them. Further, under contiguity
rules, the number of potential receiving sites will depend upon whether a seller and buyer whose lots
are not contiguous with one another are able to convince the owners of intervening lots to assist with
the transfer by forming a chain of contiguity.
In short, then, transferable development rights programs differ along a variety of dimensions:
– the purposes they are intended to serve; the relationship between the scope of the rights the
sending site has foregone and the rights the receiving site can take; the nature of the regulatory
review (if any) of proposed transfers; the rationale behind, and restrictiveness of, rules governing
which sites can receive TDRs from a sending site; and the use of intermediaries such as TDR banks
to facilitate transfers.
B.
Transferable Development Rights Programs in New York City
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1.
The Zoning Lot Merger
New York City permits property owners to transfer the unused development capacity of one
parcel of property to another parcel through a number of different mechanisms. The “simplest
example of transferable development rights,”18 the zoning lot merger, can be traced to the city’s
original zoning code. The 1916 New York City Zoning Resolution restricted the size of buildings
primarily through height limits and setback requirements.19 However, these limits applied only
when a building occupied more than one quarter of its total lot – which was interpreted to include
any contiguous lots if the owners of those lots leased or sold their air rights to the building’s
developer.20 This created an incentive for property owners to enlarge their lots by leasing or
purchasing air rights, in order to avoid height and setback restrictions.21
New York City’s 1961 Zoning Resolution applied the concept of floor air ratio (FAR) to the
entire city. FAR, which became the central determinant of building bulk, “is the ratio of total
building floor area to the area of its zoning lot.”22 For example, a building on a 10,000 square foot
lot, in a zoning district with an FAR of five, cannot exceed 50,000 square feet. If the building
covered the entire zoning lot, it could rise to five stories. If it covered only half the lot on which it
was built, the building could rise to ten stories. See Figure 1 below. However, buildings still
remain subject to height and setback restrictions in zoning districts where those apply.
18
Marcus, Air Rights in NYC, supra note 4 at 870.
Michael B. Kruse, Constructing the Special Theater Subdistrict: Culture, Politics, and Economics in the Creation of
Transferable Development Rights, 40 URB. LAW. 91, 100 (2008).
20
Marcus, Air Rights in NYC, supra note 4, at 871-72.
21
Kruse, supra note 19, at 100.
22
City of New York Department of City Planning, Zoning Handbook (2011 Edition) 148. FAR was first developed in
New York City in 1940, but initially only applied to low density areas of the city. Richards, Note, supra note 5, at 338,
346. The real estate industry initially objected to this new bulk restriction, but the 1961 resolution won their support by
including two additional changes to offset the effect of the new FAR regulations: the availability of a bonus of 20% of a
building’s FAR if the developer added a plaza to the development; and a redefinition of the “zoning lot” to which the
FAR would apply, to include any other parcel owned by a developer within the same city block. Id. at 347-48. This
new definition, by applying the FAR limit to the entire zoning lot, allowed for the transfer of bulk from underdeveloped
buildings to a new development, creating the zoning lot merger, the first TDR program.
19
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Figure 1
The 1961 Zoning Resolution did not introduce a specific development rights transfer
mechanism, but its definition of “zoning lot” permitted a developer to enter into a long-term lease of
contiguous lots on the same city block – and then purchase and shift unused development rights
from one lot to another.23 A long-term lease was required to be at least fifty years in duration, with
an option to renew that provided a total lease of at least seventy-five years.24 The seventy-five year
lease posed potential problems if, for example, a lessee stopped paying rent under the lease or the
lessor was foreclosed upon and the lease terminated.25 Those uncertainties hampered the use of
development rights.
To alleviate these concerns, the Zoning Resolution was amended in 1977 to eliminate the
lease requirement. The definition of “zoning lot” now includes a tract of land consisting of two or
more contiguous tax lots, located on a single block, which at the time of filing for a building permit
or certificate of occupancy “is declared to be a tract of land to be treated as one zoning lot for the
23
Marcus, Air Rights in NYC, supra note 4, at 873-74; Kruse, supra note 19, at 101.
Marcus, Air Rights in NYC, supra note 4, at 873 (citing NEW YORK, N.Y., ZONING RESOLUTION § 12-10
(1961)).
25
Marcus, Air Rights in NYC, supra note 4, at 874; see also Richards, supra note 1, at 468-470 (1986) (discussing
additional concerns that motivated amendment).
24
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purpose of this Resolution.”26 The Zoning Resolution requires that Declarations of Restriction be
executed by all parties in interest to any portion of the zoning lot. These Declarations must be
recorded with the Office of the City Register against each relevant tax lot.27 In addition, a licensed
New York State title insurance company must provide certification that all “parties in interest” have
either joined the declaration or waived the right to do so.28 In certain zoning districts, the ability to
use a zoning lot merger to increase building height is restricted by the requirement that a tower
occupy some minimum percentage of the merged zoning lot.29 These restrictions are intended in
part to avoid the construction of buildings like the Trump World Tower, which obtained
development rights from a large number of merged zoning lots to build a tower that occupied “only
13 percent of the merged lot.”30
2.
Landmark Transfers
New York City introduced a development rights transfer program specifically for designated
landmarks in 1968.31 The program sought to compensate owners of landmarks for the potential
26
N.Y.C. Zoning Resolution Section 12-10 (2006) (part (d) under definition of Zoning Lot).
Kruse, supra note 19, at 101 n.12.
28
Richards, supra note 1, at 470; see also Marc Israel & Caroline G. Harris, Higher and Higher, N.Y. LAW J., Jan. 16,
2007 (discussing “basic mechanics of development rights deals”).
29
See, e.g., NYC Zoning Resolution § 23-633(c)(3) (district R10X: portion of tower above 85 feet must cover minimum
of 33% of zoning lot); id. at § 35-24(d)(3) (district C4X); id. at § 81-752(c)(1) (Eighth Avenue Corridor); id. at § 8236(a)(2) (Special Lincoln Square District).
30
David W. Dunlap, A Complex Plan’s Aim: Simpler Zoning Rules, N.Y. TIMES, Jan.30, 2000, available at
http://query.nytimes.com/gst/fullpage.html?res=940DE4DF133CF933A05752C0A9669C8B63 (“Intended to curtail the
transfer of development rights, [the ‘packing the bulk’] rule is despised by developers.”); David W. Dunlap, Battle
Lines Drawn on New Zoning Plan, N.Y. TIMES, June 4, 2000, available at
http://query.nytimes.com/gst/fullpage.html?res=9C0DEEDC133CF937A35755C0A9669C8B63 (“This [requirement]
was intended to prevent the harvesting of air rights up and down a block and piling them on a single building site, as was
done at Trump World Tower, which occupies only 13 percent of the merged zoning lot.”).
31
The relevant provisions are found at § 74-79 of the Zoning Resolution. Eligible landmarks include Landmarks
Preservation Commission designated landmarks (designated pursuant to Chapter 8-A of the New York City charter and
Chapter 8-A of the NYC Admin. Code), except cemeteries, statues, monuments, bridges, or structures within historic
districts. An “adjacent zoning lot” eligible for receiving development rights from a landmark is defined as one
contiguous to the lot occupied by the landmark structure, one across a street and opposite to such a lot, or, if the
landmark structure is on a corner lot, one that fronts on the same street intersection as the lot occupied by the landmark.
In the case of lots in zoning districts C5-3, C5-5, C6-6, C6-7 or C6-9, an adjacent lot can also mean “a lot contiguous or
one that is across a street and opposite another lot or lots that except for the intervention of streets or street intersection,
form a series extending to the lot occupied by the landmark.” In this case, all such lots must be under common
ownership.
27
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financial loss resulting from the restrictions imposed by the City’s Landmark Preservation Law.32
According to Marcus, the landmark TDR program provided a practical means through which the
city was able to protect landmarks and restrict redevelopment without being required to pay
compensation, a particular concern given Manhattan land values.33 Under the program, landmarks
are permitted to transfer unused development rights not only to other lots on the same block (which
they could do through zoning lot mergers), but also to lots directly across a street or, if the landmark
is at a corner, to any of the other corner lots at the same intersection.34 This ability to transfer
development rights beyond the same block came with the restriction that the rights could only
increase a receiving site’s FAR by twenty percent above the site’s maximum FAR prior to the
transfer.35
The Landmark Preservation Law was challenged by the owner of Grand Central Terminal in
a case that eventually reached the United States Supreme Court, Penn Central Transportation
Company v. New York City.36 Penn Central, the owner of the terminal, alleged that the landmark
regulation destroyed so much of the value of its property that it constituted an uncompensated
taking, and that its TDRs were worthless and therefore were not just compensation for the taking,
because no purchasers existed under the then-existing transfer rules.37 To blunt this claim, the
Landmark Preservation Commission adopted two amendments in 1969. The first permitted the
transfer of TDRs to “any site connected to the landmark through a chain of lots under common
ownership.”38 The second amendment removed the twenty-percent limit on the increase in FAR at
32
Kruse, supra note 19, at 102; Richards, Note, supra note 5, at 351-53.
Norman Marcus, Mandatory Development Rights Transfer and the Taking Clause, supra note 4, at 91, 92.
34
Richards, supra note 1, at 447; Stevenson, --, at 1334-35 (“The [1968] amendment was the first example of “beyondthe-block” TDR use, drastically changing the concept of, and traditional justifications for, TDRs.”).
35
Kruse, supra note 19, at 101 (citing N.Y. City Planning Comm'n, Rep. CP-20938, at 876 (1969)); Marcus, Air Rights
in NYC, supra note 4, at 880.
36
438 U.S. 104 (1978).
37
Kruse, supra note 19, 102.
38
Kruse, supra note 19, 102; Richards, supra note 1, at 451 (noting that amendment was “announced October 7, 1969
(the same day the railroad’s suit was filed)”).
33
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the receiving site, but only for sites in the highest-density commercial districts.39 In 1978, the
Supreme Court rejected the takings claim, and therefore did not need to address the question
whether the TDRs were adequate compensation for a taking. But the Court did rely on the value of
the TDRs in its determination that no taking had occurred, reasoning:
Second, to the extent appellants have been denied the right to build above the
Terminal, it is not literally accurate to say that they have been denied all use
of even those preexisting air rights. Their ability to use these rights has not
been abrogated; they are made transferable to at least eight parcels in the
vicinity of the Terminal, one or two of which have been found suitable for the
construction of new office buildings. Although appellants and others have
argued that New York City's transferable development rights program is far
from ideal, the New York courts here supportably found that, at least in the
case of the Terminal, the rights afforded are valuable. While these rights may
well not have constituted "just compensation" if a "taking" had occurred, the
rights nevertheless undoubtedly mitigate whatever financial burdens the law
has imposed on appellants and, for that reason, are to be taken into account in
considering the impact of regulation.
438 U.S., at 138 (notes and citations omitted).40
Although the litigation over the Grand Central development rights eventually led the City to
create a special district program like those described in the next section, the landmarks transfer
program has remained largely as it was prior to the litigation. Under Section 74-791 of the current
New York City Zoning Resolution, the owners of both the landmark seeking to transfer
development rights and the potential receiving lot must submit an application to the City Planning
Commission (CPC) for a permit to allow the transfer. This permit application – in contrast to a
zoning lot merger, which can be done as of right – is subject to New York City’s Uniform Land Use
39
Richards, supra note 1, at 451. Richards notes that the original landmark TDR program was introduced by a Planning
Commission statement lauding, among its benefits, the City’s ability to obtain “new tax revenues from what was
previously untaxable.” Id. at 448 (quoting New York City Planning Commission, Minutes 303 (May 1, 1968)). He
deems the 1969 amendment, which was introduced to allow broader transfers from Grand Central and blunt the legal
challenge, “a classic case of spot zoning: an amendment enacted solely for the benefit of one landowner which was not
in accordance with a comprehensive plan.” Id. at 451.
40
The Penn Central Court’s discussion of TDRs has been questioned by several current members of the Court. See
Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 747-48 (1997) (Scalia, J., conc.). See also James E.
Holloway & Donald C. Guy, The Utility and Validity of TDRs Under the Takings Clause and the Role of TDRs in the
Takings Equation Under Legal Theory, 11 Penn St. Envtl. L. Rev. 45 (2002); Andrew J. Miller, Transferable
Development Rights in the Constitutional Landscape: Has Penn Central Failed to Weather the Storm?, 39 Nat.
Resources J. 459 (1999).
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Review Process (ULURP). The permit application must include a site plan of the granting landmark
lot and the receiving lot, all plans for development on the receiving lot, a program for continuing
maintenance of the landmark, a report from the Landmarks Preservation Commission, and any other
information required by the CPC.
Development rights transfers from landmark sites may only be authorized upon CPC
findings that the transfer “will not unduly increase the bulk of any new development, density of
population or intensity of use in any block to the detriment of the occupants of buildings on the
block or nearby blocks, and that any disadvantages to the surrounding area… will be more than
offset by the advantages of the landmark’s preservation to the local community and the City as a
whole.”41 The CPC also must find that the program proposed in the transfer application for
continuous maintenance of the landmark will indeed result in its preservation.42 As noted, with the
exception of certain commercial districts, a receiving site may not obtain via TDRs more than a
twenty percent increase over its prior maximum allowable floor area.43 If a government entity (city,
state, or federal) owns the landmark, the special permit application must include a plan to provide a
major improvement to the area’s pedestrian circulation or transportation system.44
Thus, the procedures for obtaining approval of a proposed landmark transfer are “complex,”
to put it mildly.45 In an article published just four years after the institution of the landmark transfer
program, Professor John Costonis argued that a number of program characteristics reduce its
41
New York City Zoning Resolution § 74-792(e)(1).
New York City Zoning Resolution § 74-792(e)(2).
43
New York City Zoning Resolution § 74-792(b)(4). A few provisions in the Zoning Resolution provide additional
regulations that apply to landmarks in designated areas of the city that seek to transfer development rights. These
include, among others, the Special Midtown District, which imposes a maximum FAR for certain zoning lots, see § 81211; the Grand Central Subdistrict, which allows transfers to certain receiving lots without an adjacency requirement
and transfers of less than 1 FAR by certification (rather than requiring a special permit), see §§ 81-63, 634; and the
Theater Subdistrict, which allows more distant transfers via a chain of lots under common ownership, see § 81-747.
44
74-792(e)(3). Richards describes this requirement as an exaction levied by the government “upon the private builder
who would utilize the development rights.” Richards, supra note 1, at 453
45
Costonis, The Chicago Plan, supra note 3, at 585.
42
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effectiveness as a preservation technique.46 In particular, the zoning lot merger provision, which
allows transfers as-of-right, renders the landmark transfer program “useful only when a developer
can be found who happens to own a lot located across a street or an intersection from a landmark or
when a landmark owner who owns a series of lots that connect with the landmark lot desires to build
on one or more of those lots.”47 It should be noted that developers also may be able to obtain more
development rights through a zoning lot merger than they could through the landmark transfer
program, because of the latter’s limit on the increase in floor area obtainable through TDRs.
Echoing these concerns, an American Planning Association publication from 1987 noted that
in the 18 years since the creation of New York City’s landmark TDR program, only approximately a
dozen transfers had occurred.48 According to the authors, this was because developers had access to
easier and more attractive methods for increasing density: “The first choice of developers in the
market for additional density is the zoning-lot merger, which is as-of-right and is not subject to a
process of review and approval. If a developer cannot achieve density through zoning-lot merger, a
change in zoning to a higher density classification may be sought. Only after these options have
been exhausted does a developer typically seek TDRs from landmark properties and submit to the
strenuous planning review involved in TDR approvals.”49
Given these additional constraints, it is not surprising that our data reveal few TDR
transactions that use the landmark transfer mechanism under Section 74-79.50 Landmarks more
46
Costonis, The Chicago Plan, supra note 3, at 586-89.
Costonis, The Chicago Plan, supra note 3, at 586-87.
48
RICHARD J. RODDEWIG & CHERYL A. INGHRAM, AMERICAN PLANNING ASSOCIATION, PLANNING ADVISORY SERVICE,
REPORT NO. 401, TRANSFERABLE DEVELOPMENT RIGHTS PROGRAMS 8 (1987); see also Richards, supra note 1, at 46263 (“[T]o this writer's knowledge, only a dozen [landmark] transfers have been processed in eighteen years.”).
49
RODDEWIG & INGHRAM, supra note 48, at 8. One commentator has argued that a municipal bias exists in favor of
programs that entail minimal administrative effort: “With respect to the goal of growth, this bias has meant the laissezfaire encouragement of the ‘as-of-right’ zoning lot merger, which produces the same development rights increment to
the city’s tax base as any more complicated alternative which, while maximizing municipal discretion in the production
of individually tailored developments over areas wider than a city block, would also require considerably greater
administrative costs.” Richards, supra note 1, at 475 (citing Marcus, Air Rights in NYC, supra note 4, at 911).
50
Writing in 1986, eighteen years after the institution of the landmark TDR program, Richards observed that few
transfers had occurred through the program. Richards, supra note 1, at 462-63 (“[T]o this writer’s knowledge only a
47
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Page 13
frequently transfer development rights via a zoning lot merger, which can be done as-of-right
(avoiding the expense or uncertainty of filing for a discretionary special permit), without restrictions
on the amount of development rights that can be transferred, and without commitment to a program
for continued maintenance of the landmark. Commentators have contended that the landmark TDR
program, by “[i]ncreasing the distance over which these rights could be transferred increased the
number of available receiving sites, which then increased both the number of potential buyers and
(by increasing demand) the price of those rights.”51 However, our analysis of transfers that have
occurred from landmarks indicates that other transfer mechanisms are more desirable for landmark
owners looking to sell TDRs. During the period of 2003-2011 only two landmarks made use of the
transfer mechanism under Section 74-79, but an additional twenty-five landmarks transferred
development rights via a zoning lot merger, the Theater Subdistrict program, or the Grand Central
Subdistrict program.
3.
Special Transfer Districts
In addition to zoning lot mergers and landmark transfers, special districts are a third major
category of TDRs. New York City has established a number of special districts, which are defined
geographic areas within which contiguity requirements are eliminated and eligible granting sites are
able to transfer development rights to specified eligible receiving lots outside the block or even
many blocks away. Hence these programs expand the market of potential sellers as well as potential
buyers of TDRs.
These special transfer districts include, among others, the South Street Seaport Subdistrict,52
the Theater Subdistrict,53 and the Special West Chelsea District.54 The South Street Seaport District
dozen [landmark TDR] transfer have been processed in eight years, which fact would seem to demonstrate the
unreliability of development rights transfer as a general preservation device.”).
51
Kruse, supra note 19, 102; see also COSTONIS, SPACE ADRIFT, supra note 3, at 55 (“The adjacency restriction [in New
York City’s TDR program for landmarks] severely impairs the marketability of development rights.”).
52
New York City Zoning Resolution § 91-60.
53
New York City Zoning Resolution § 81-70.
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was created to preserve a historic area in lower Manhattan near the Fulton Fish Market, while still
encouraging development in an area with high property values.55 Owners of historic properties were
allowed to transfer unused development rights either to designated recipient sites or to a TDR bank,
which would hold the rights for subsequent disposition to a receiving site.56
The Theater Subdistrict, which is a part of the Special Midtown District, allows the transfer
of development rights from 46 theaters listed in the Zoning Resolution (some, but not all, of the
theaters are also designated landmarks).57 With a few exceptions, the listed theaters may transfer
development rights to any other lot within the Theater Subdistrict.58 The owner of the granting site
must provide written assurances that the site will continue to be used as a legitimate theater,59 and
must show that the theatre is physically and operationally sound or have a plan in place to upgrade it
as necessary for its continued use.60 The City Planning Commission must either certify or authorize
each transfer. Certification, which is a ministerial process, allows the owner to transfer only those
rights that would increase the maximum floor area at a receiving site by no more than twenty
percent.61 To transfer by certification, the owner also must contribute to the Theater Subdistrict
Fund, which finances inspection and maintenance of the granting theaters.62 Authorization, which
is a discretionary action, allows receiving sites within a designated Eighth Avenue corridor to
receive an additional twenty percent FAR bonus, above the amount that can be transferred by
54
New York City Zoning Resolution § 98.
Marcus, Air Rights in NYC, supra note 4, at 890.
56
Marcus, Air Rights in NYC, supra note 4, at 890-91. This program reflected some of the ideas advocated by Professor
John Costonis. See Costonis, The Chicago Plan, supra note 3, at 622-23 (championing creation of “development rights
transfer district” as part of TDR program).
57
New York City Zoning Resolution § 81-742 (providing list of theaters).
58
New York City Zoning Resolution § 81-744.
59
New York City Zoning Resolution § 81-743.
60
New York City Zoning Resolution § 81-743.
61
New York City Zoning Resolution § 81-744(a). Kruse, supra note 19, at 115-16 (“[T]he only requirement for such
transfers beyond the FAR limit was that the C[ity] P[lanning] C[ommission] confirm that (1) the TDRs available to the
granting site be reduced once the transfer is complete, (2) that the theater owner transferring the TDRs satisfy the
requirements regarding the continued use of the property as a legitimate theater, and (3) that a contribution of ten dollars
per square foot of transferred floor area be made to the Theater Subdistrict Fund.”).
62
New York City Zoning Resolution § 81-744(a). The contribution amount is adjusted over time and the current rate is
$14.91 per square foot transferred.
55
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certification. To authorize such a transfer, the City Planning Commission must find that the
development (i) relates harmoniously to all structures and open space in its vicinity in terms of scale,
location and access to light and air in the area; and (ii) serves to enhance or reinforce the general
purposes of the Theater Subdistrict.63
The Special West Chelsea District, which includes the High Line, a public park built atop an
abandoned elevated train line, includes a sophisticated TDR program. The district regulations
restrict development of properties under and immediately west of the High Line. These properties
form a “High Line Transfer Corridor” and are designated as eligible granting sites for TDRs.64 Parts
of the district are divided into designated subareas, a share of which are eligible receiving sites for
transferred development rights. The maximum amount that a receiving site can increase its FAR
through TDRs varies by subarea, between 1.0 and 2.65 FAR.65 Certain subareas allow receiving
sites to obtain additional FAR by contributing to a High Line Improvement Fund or participating in
New York City’s Inclusionary Housing Program.66 In some of the subareas, a developer may obtain
additional FAR via the inclusionary housing program only after first using the maximum allowable
TDRs, a requirement that provides further incentive for the purchase of TDRs.67
A number of other regulations serve to encourage transfers and further the development of
the High Line. Certain lots, in order to transfer TDRs, must dedicate an easement for an elevator or
stairwell that will provide access to the High Line.68 Vacant sites within the High Line Transfer
Corridor that have already transferred all of their development rights may be granted an additional
1.0 FAR, which can only be used for a commercial purpose within the High Line Transfer
63
New York City Zoning Resolution § 81-744(b).
New York City Zoning Resolution § 98-31. To execute a transfer, written notification must be made by the owners of
the granting and receiving sites to the Department of City Planning. § 98-33(a).
65
New York City Zoning Resolution § 98-22.
66
New York City Zoning Resolution § 98-22.
67
New York City Zoning Resolution §§ 98-22, 98-262.
68
New York City Zoning Resolution §§ 98-33(d), 98-62.
64
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Corridor.69 These provisions serve the goals of establishing a vibrant and accessible neighborhood
resource. However, they also increase the costs for certain granting sites seeking to transfer
development rights. Some prospective purchasers have complained that too few TDRs are available
for sale and that the program’s regulations should be changed to allow easier transfers.70
II.
Transfers of Development Rights in New York City
A. Our Data
Although transfers of development rights must be publicly recorded, it is extremely difficult
to identify the transfers, so an easily accessible and systematic survey of TDR transfers has not been
available.71 The Zoning Resolution requires applicants for building permits to provide to the
Department of Buildings a set of documents in which the applicant clearly defines the Zoning Lot
on which new construction will take place by listing the constituent tax lots.72 The applicant also
must record these documents in the land records administered by the City Register, which have been
available electronically since 2003 as scanned documents through the online Automated City
Register Information System (ACRIS).73
Because a zoning lot merger constitutes an actual purchase of some or all of the unused
development rights of certain tax lots, the parties to this transaction customarily execute and record
a deed-like instrument known as a Zoning Lot Development Agreement (ZLDA) documenting the
sale and transfer of development rights. The ZLDA, and any purchase and sale contract the parties
69
New York City Zoning Resolution §§ 98-33(d), 98-35. Vacant lots must contribute $50 per square foot (adjusted for
inflation) to the High Line Improvement Fund in order to obtain the additional 1.0 FAR.
70
See Eliot Brown, Developers Want Easier Access to High Line Air Rights, N.Y. OBSERVER, Feb. 12, 2008, available
at http://www.observer.com/2008/developers-want-easier-access-high-line-air-rights-should-city-fix-something-doesn-tlook-broke (“The Real Estate Board of New York, responding to the concerns of multiple developers who were unable
to find air rights to buy, has asked the city to consider changes to zoning regulations in West Chelsea that would allow
for an easier transfer of those rights.”).
71
Some brokers who specialize in development rights maintain lists of transfers for their own use.
72
The Zoning Resolution [cite to specific section] was unclear on this point, but a 1978 Departmental Memorandum
from the Department of Buildings made the requirement clear.
73
ACRIS is accessible via the New York City Department of Finance website at
http://www.nyc.gov/html/dof/html/jump/acris.shtml.
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enter to govern the delivery of the ZLDA (which corresponds to the purchase and sale contract that
precedes a traditional deed), contain the principal business terms of the transaction: the purchase
price; the development rights, if any, retained by the grantor lot for potential future use; and the
number of development rights that are being made available to the purchaser. Because a ZLDA
marks the transfer of a real property interest, upon its recordation, the parties are required to pay city
and state real property transfer taxes on the sales price. Occasionally, instead of a ZLDA, parties
will execute a more streamlined instrument that, by its terms, completes the transfer of the
development rights. Transfers that occur through mechanisms other than zoning lot mergers are
recorded using different instruments.
The relevant documents should be filed in the records for every tax lot that is part of a
zoning lot merger or a transfer through one of the other TDR programs. To collect data on TDR
transactions, the Furman Center searched ACRIS records between January 2003 and December
2011 for any documents related to a transfer of development rights.74 Documents sometimes are
recorded in ACRIS under easy-to-identify classifications like “Development Rights” and “Air
Rights,” but are frequently recorded under more generic classifications, including “Agreement,”
“Easement,” “Deed,” “Sundry Agreement,” “Sundry Miscellaneous,” and “Certificate,” which can
also apply to a wide range of other transaction types. Searching every one of the millions of
documents on ACRIS simply wasn’t feasible, so we supplemented our initial search of documents
labeled as “Development Rights” and “Air Rights” by looking more closely at all the documents
relating to the lots identified through those initial searches. We further supplemented our research
through a review of popular and trade press reports of development rights transfers, additional
information shared with us by an advisory group,75 and a lot-by-lot review of potential grantor lots
74
Our collection process began with 2003, as the City Register started to make land records available online through
ACRIS in that year. ACRIS allows a user to browse all documents recorded against a specific tax lot or to search for
specific document types within a specified time period of no more than 30 days.
75
We are particularly grateful to Robert Van Ancken of Grubb & Ellis for sharing data that his office had assembled.
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Page 18
in the Theater Subdistrict and the West Chelsea District. Because the Zoning Lot Description and
Ownership Statement owners must file when applying for a building permit identifies the specific
tax lots that make up a zoning lot,76 we also performed an automated search for all tax lots identified
in a recorded Zoning Lot Description, if the Zoning Lot Description applied to two or more lots.
We then did a manual check of a subset of these lots to check the comprehensiveness of our data
collection.77 Finally, we performed a project-level analysis that examined these individual
transactions in the context of the larger development projects of which they are frequently a part. In
performing this analysis we looked again for any missing transfers.
We carefully reviewed every document identified through these searches for all information
relevant to the development rights transfer, as well as any reference to other TDR transactions. We
recorded, when a precise number was given, the square footage transferred. At times the parties
choose not to specify the number of square feet transferred, however, and the transfer
documentation instead simply refers to the transfer of “all unused” or “all excess” development
rights.78 We also obtained price data for transfers from ACRIS in most, but not all, instances.79
B. TDR Transactions in New York City
1. Overview
New York City identifies all of the legal parcels of land within its borders (known as “tax lots”) by assigning each a
unique set of numbers corresponding to the City’s official tax map. For a given parcel, these numbers, sometimes
expressed together as a single number (known then as a “BBL”), correspond to (1) the borough in which the parcel lies;
(2) the block that the parcel is a part of; and (3) within the block, the specific lot that is that parcel. Pursuant to the
Zoning Resolution, zoning restrictions, including the maximum FAR of a zoning category, apply not necessarily to
individual tax lots, but instead to “Zoning Lots.” A zoning lot can be composed of any number of tax lots (or partial tax
lots) within a single block that are contiguous with the rest of the zoning lot for a minimum of 10 linear feet.
77
Specifically, we looked at all Zoning Lot Description documents involving two or more tax lots between January 1
and June 30, 2005. All of the development rights transfers identified through this check were already in our database.
78
In the future, we plan to supplement our data with an estimate of the square footage transferred in these transactions,
based on a separate database assembled by the Furman Center to evaluate “soft sites” in New York City -- lots that are
not developed to their maximum zoning capacity. The Furman Center’s soft sites data will enable us to estimate the
amount of unused capacity at a grantor site at the time of transfer.
79
This information, although not found in the documentation itself, is recorded by the City Registrar in a “Document
Amount” field attached to the relevant documents. In addition to price and square footage terms, we also recorded: the
City Register File Number for each document; the law firm working on behalf of the buyer of development rights; the
date the document was filed in ACRIS; the date of the transfer; the borough, block, and lot for each lot involved in the
transaction; whether the transaction involved related parties; and additional information regarding the development
project.
76
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Our research has yielded a data set of 410 total development rights transfers in New York
City that occurred between January 1, 2003 and December 31, 2011.80 This number, and the
analysis in this section, refers to individual TDR transactions. Frequently, a single development
project will involve the purchase and transfer of development rights from multiple granting sites
through separate transactions. We explore the use of TDRs at the project level in detail below, in
Part III.C.
Of the 410 total TDR transactions in our database, the vast majority, or 320 transactions,
were arms-length zoning lot mergers between unrelated parties. Fifty-seven transactions were
zoning lot merger transfers between related parties. Eleven transfers occurred through the Special
Theater Subdistrict transfer program, 17 through the West Chelsea District program (one of which
was between related parties), two through the general landmark transfer provision (§ 74-79 of the
Zoning Resolution), and four other transfers occurred through various other special transfer
mechanisms.81
2. General Descriptive Characteristics of TDR Transfers
As depicted in Figure 2, the volume of TDR transactions rose dramatically between 2003
and 2007, before tapering off in 2008 and falling dramatically in 2009. This trend in TDR
transactions reflects the timeline of New York City’s construction boom, which ended suddenly
with the market downturn in late 2008. In Manhattan, where the vast majority of development
rights transfers occurred, new building construction permits rose steadily between 2004 and 2008,
when they peaked, before declining through 2011. This trend is shown in Figure 3.
80
We searched for development rights transfers with a recording date between January 1, 2003 and June 30, 2011.
However, we report our data by the date of transfer, which can range from a few days to multiple years before the
recording date. Typically, the transfer date is a few months before the recording date.
81
Our research also yielded two transfers through the Grand Central Subdistrict landmark transfer provision (§ 81-63),
both of which were recorded on July 24, 2003 and involved the same recipient lots. However, the transfers occurred in
May 2001 and June 2002, so we do not include them in our analysis.
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The 243 arms-length zoning lot merger transactions in our data for which we found
definitive statements of the amount of square footage involved in the transaction transferred an
average of 22,170 square feet of development capacity each. However, a substantial number of
these transfers – 109 -- involved a transfer of fewer than 10,000 square feet of development rights,
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and of these, 55 involved fewer than 5,000 square feet.82 Although we have far fewer observations
of transfers through the special district programs, a larger share of those transfers involved 25,000
square feet of more of development rights.
Table 1: Square Footage Transferred, by TDR Program
Number of square
feet
0-5,000
5,001-10,000
10,001-15,000
15,001-20,000
20,001-25,000
25,001-50,000
50,001-75,000
75,001-100,000
100,001-150,000
150,000+
Unknown
Arms-Length
ZLMs
55
54
38
26
16
29
11
5
7
4
77
Related
ZLMs
4
4
5
8
2
1
3
0
0
6
23
Theater
0
4
0
1
0
3
1
1
0
1
0
West
Chelsea
4
3
4
2
1
2
1
0
0
0
0
Landmark and
Other
0
0
1
0
0
2
1
1
1
2
0
We have both the square footage and price terms for 210 of the arm’s length zoning lot
merger transactions. The average price paid for a square foot of development capacity, adjusted for
inflation to 2011 prices, was $171. This average rose steadily between 2003, when the average was
$76 per square foot, and 2007, when the average reached $209 per square foot. It declined to $154
per square foot in 2008. As would be expected, prices varied dramatically by borough, with the
highest prices paid in Manhattan, where prices averaged $185 per square foot. Of the 185 arm’s
length zoning lot merger transactions in Manhatthan, 154 transactions occurred in the six Manhattan
community districts located south of 59th Street, which include the midtown and downtown areas of
the city with the densest development. These transactions are compiled in Table 2, below. The
82
Of the 243 transactions with square footage data, the 209 that were in Manhattan averaged 22,412 square feet of
transferred development rights. This compares with an average of 22,289 square feet of development rights in the 27
transfers in Brooklyn with a clear square footage term. Three transfers in the Bronx averaged 28,494 square feet and
four transfers in Queens averaged only 3,984 square feet.
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Page 22
average price per square foot in these areas, $186 per square foot, was nearly identical to the
borough-wide average. Higher prices were found for the 15 transactions with square footage and
price terms on the Upper East Side (Community District 8), where prices averaged $216, per square
foot.83 Our data include 20 arm’s length zoning lot merger transactions in Brooklyn during this
period with clear price and square footage transferred terms. These transactions had an average
price of $77 per square foot.84
On average, the prices paid for development rights transferred through special programs
were higher than prices paid for rights transferred through zoning lot mergers. For the 11 Theater
Subdistrict transactions (all of which had price and square footage data), the average price was $221
per square foot (in 2011 dollars). For the 14 West Chelsea District program transfers with full data,
the average price was $288 per square foot.
Table 2: Zoning Lot Merger Transactions in Manhattan Below 59th Street
Community District
MN 01
Financial District
MN 02
Greenwich Village/ Soho
MN 03
Lower East Side/ Chinatown
MN 04
Clinton/Chelsea
MN 05
Midtown
MN 06
Stuyvesant Town/ Turtle Bay
Number of
transfers
26
Total square feet
transferred85
555,428
Average price per sq
ft. in 2011 $86
$161 (14)
5
9,199
$236 (2)
33
266,573
$157 (27)
44
851,664
$174 (29)
95
2,245,403
$196 (68)
20
281,424
$243 (14)
83
Only six transactions with clear price and square footage terms occurred in the four community districts north of
Central Park and these had an average price of $64 per square foot, less than the prices paid in Brooklyn.
84
Two transactions in the Bronx had an average price of $24 per square foot and three transactions in Queens had an
average price of $38.
85
As noted, some of the transfers recorded in our database lack square footage.
86
Number in parentheses is number of transactions in our data for which we have both square footage and price and can
calculate the average price.
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Page 23
The prices we find in Manhattan differ from some of the prices reported in the real estate and
popular media. One report, for example, quoted a representative from one of the city’s major real
estate firms, at the peak of the market in the 2000s, the price rose to “between $400 and $500 a
square foot” for residential use, before falling to between “$150 to $300 a square foot” in 2009.87
Of course, given the idiosyncrasies of the market for TDRs, including the limited number of
possible purchasers for any given set of rights, and context-specific factors that determine their
value to the purchaser, it is difficult to draw definitive conclusions regarding general trends in
pricing city-wide. Nonetheless, the discrepancies between these estimates and the findings from our
analysis reveal a lack of transparency regarding the prices paid for these development rights that
may hinder the efficiency of the market.
III.
Analysis: Developer Preferences for Adding Capacity and the Factors that Affect these
Preferences
A. The Diverse Mechanisms Available for Increasing Development Capacity
In addition to purchasing TDRs, a developer seeking to increase the size of a development
project has a number of other options for adding capacity.88 These options, like the different TDR
programs discussed in Part II.A, differ in the transaction costs they entail. The lot assembly – the
purchase of adjacent lots to develop as a single project – is perhaps the most basic option. It enables
a developer to increase both the footprint of a development site and the street frontage of a
development, which can be of particular value for commercial developments. At the same time, a
87
Katherine Dykstra, Air Rights, Once Coveted, Plummet in Value, THE REAL DEAL, Sept. 1, 2009 (quoting Stuart
Siegel, Executive Managing Director at Grubb & Ellis). Ellis asserted, however, that a valuation in 2009 was impossible
because no one was trading development rights. He also estimated that prior to the real estate boom, development rights
could be purchased at a discount of “maybe 40 or 50 percent” of land rights, but this spread was reduced substantially
during the boom.
88
Richards, supra note 1, at 472 (“When planning a structure that, on its ‘footprint,’ exceeds applicable FAR
regulations, developers naturally have other routes available under the Zoning Resolution to secure permission for
additional bulk, including incorporation of plazas or other amenities, zoning amendments or special permit, and
variances. But the development rights transfer technique, effected through as-of-right zoning lot merger, has enabled the
most aggressive builders to bypass the restrictions that the law would otherwise impose.”)
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developer seeking to assemble lots must find adjacent lots for sale, which may require negotiation
with multiple parties, and risks the possibility that holdouts will drive up the price of sites needed
for the development plans.89
Zoning bonuses provide a second method for developers to increase capacity. New York
City’s Zoning Resolution provides a number of available bonuses. Including a plaza at a
development site entitles a developer to a 20% increase in the existing FAR at a site, for example. A
similar 20% increase is granted to developers who participate in the City’s Inclusionary Housing
Program, which enables developers to obtain increased capacity for projects in designated areas in
exchange for building affordable housing, either on or off-site.90 However, both of these programs
entail additional cost in building the required amenity -- the plaza or affordable housing units.
Third, developers can petition for a rezoning of the development site, which can result in an
increased FAR, expanding development capacity. Rezonings entail considerable transaction costs,
including attorney’s fees, and may also increase the cost of the project if the developer agrees to
provide benefits or makes other concessions in order to secure approval of the rezoning. In addition,
developer-initiated rezonings are subject to the City’s Uniform Land Use Review Process, and
accordingly involve considerable risk, expense, and time.
B. What Tools Have Developers Used to Increase Project Size in Manhattan?
Our data allows us to analyze the use of TDR transfers and the three other tools discussed
above for increasing project size in New York City’s central business district (Manhattan below 59th
Street), which includes Community Districts 1, 2, 3, 4, 5, and 6. As noted above, this area of New
89
See John Cadigan, Pamela Schmitt, Robert Shupp, & Kurtis Swope, The holdout problem and urban sprawl:
Experimental evidence, 69 J. URB. ECONS. 72, 72 (2011) (summarizing economics and legal literature on land assembly
and holdout costs).
90
Two inclusionary housing programs exist. Through the original R10 Program, developers can obtain a floor areas
bonus of up to 20 percent in residential and commercial districts with R10 density. In specified “Inclusionary Housing
designated areas,” located in “medium- and high-density residential neighborhoods and commercial districts with
equivalent density, a bonus of 33 percent of floor area can be obtained for providing 20 percent as affordable housing.”
NEW YORK CITY DEPARTMENT OF CITY PLANNING, ZONING HANDBOOK 149 (2012). However, these designated areas
typically have a lower base FAR than the maximum FAR found in parts of the same zoning district that are outside of
the designated area.
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York City saw the highest volume of TDR transactions during the period we studied. In this
analysis, we examine the use of TDRs and other tools at the development project level, rather than
by individual TDR transaction, as we did in Part II. Frequently, as noted above, a single
development project will obtain development rights from multiple granting lots through multiple
transactions.
To identify new developments we looked at the 2010 version of New York City’s Primary
Land Use Tax Lot Output (PLUTO) data files and identified all lots that have a year built of 2004 or
later in the six community districts we studied. We then matched these lots to a dataset maintained
by the Furman Center that tracks tax lots between 2003 and 2009 and determines whether they were
merged with other tax lots (an indication of lot assemblage by a developer)91 or upzoned during that
period.92 By observing multiple tax lots in PLUTO with identical building attributes, we also
identified instances in which a developer assembled multiple tax lots and constructed a project
across these lots without merging the tax lots. In addition to looking at lot assemblies, we used the
lot number of the recent projects to match them to a list of properties that include affordable housing
units developed through the Inclusionary Housing Program. This allows us to identify which of the
recent development projects obtained a bonus by providing on-site affordable units, but not the
projects that obtained additional development rights by providing affordable units on separate lots.
We identified 378 development projects completed in the Manhattan central business district
between 2004 and 2010. Twenty percent of these projects (77) involved the acquisition of
development rights from other tax lots, through either a zoning lot merger or one of the other TDR
91
It is important to distinguish between the assembly and merger of tax lots and a zoning lot merger. A zoning lot
merger, which is one mechanism for transferring development rights between parcels of property, does not change the
ownership of the participating lots. Instead, the property owners merely agree to have their separate tax lots considered
one zoning lot, for the purposes of evaluating compliance with applicable zoning restrictions. In contrast, the assembly
and merger of tax lots results in a single tax lot under common ownership.
92
This dataset is described in [forthcoming publication]. Ninety nine of the project lots did not match to this dataset.
For these lots we determined whether the project involved a lot assemblage by reviewing the deed transfer records in
ACRIS.
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Page 26
programs. Of the 77 projects that used TDRs, sixty-four obtained them through an arms-length
zoning lot merger alone and four did so through a related-parties zoning lot merger. Four projects
obtained development rights through both an arms-length zoning lot merger and one of the other
TDR programs. Only five projects obtained development rights solely through one of the other
TDR programs.
As Table 3 shows, larger projects in particular relied on TDRs to increase development size:
thirty-nine percent of projects with between 100,000 and 200,000 square feet, and 37 percent of
projects with more than 200,000 square feet of building area involved the acquisition of
development rights from other lots, compared to only three percent of projects smaller than 10,000
square feet and ten percent of projects with 10,000 to 50,000 square feet of building area. Buildings
that purchased TDRs average slightly over 187,000 square feet in size, compared with
approximately 132,000 square feet for new developments that did not involve the purchase of TDRs.
Table 3: TDR Usage for Projects Completed 2004-2010, by Project Size
Project Size (sf)
<10,000
10,000-50,000
50,000-100,000
100,000-200,000
>200,000
Total Projects
Projects
33
159
71
51
64
378
Used TDRs Share of Projects
Using TDRs
1
3%
16
10%
17
24%
20
39%
23
36%
77
20%
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Developers often used TDR purchases in conjunction with other methods for increasing
project size. Table 4 focuses on the 345 projects of more than 10,000 square feet, which include all
but one of the 77 projects that involved TDR acquisitions. It shows that 45 of these larger projects
that involved a TDR acquisition also involved a lot assemblage and/or Inclusionary Housing
Program bonus. These projects were, on average, more than twice as large as projects that used only
TDR acquisitions.
More often, however, developers relied solely on lot assemblage to increase project size or
did not use any of these methods at all. Somewhat surprisingly, Table 4 shows that the 185
developments using none of these methods were, on average, larger than the projects that used only
TDRs to expand their bulk. Although few in number, the seven projects that acquired additional
development rights through the use of the Inclusionary Housing Bonus on-site were, on average, the
largest in our sample.93
Overall, 127 of the 345 projects larger than 10,000 square feet involved a lot assembly. By
comparison, 56 of the 345 projects were located in areas that had been upzoned, and most of these
upzonings were the result of planning initiatives by the city itself, not a response to applications
from private owners. The finding that rezonings play a less crucial role for developers seeking to
increase project size than either TDRs or lot assembly, as noted in the prior section, likely reflects
the costs, time, and uncertainly involved in pursuing a rezoning.
As noted, only seven of the projects added capacity by obtaining a bonus for developing
affordable housing through the City’s inclusionary housing program. This may indicate that
participation in the inclusionary housing program is more costly and hence less attractive for
developers than the use of TDRs. It is also possible that the developers who pursue an affordable
93
In fact, nine of the 378 development projects in our data included inclusionary housing, but four of these were off-site
inclusionary housing, which means the bonus was used at a different location. Our data provides the location where the
affordable housing was built. We then examine the share of the units in the building that are affordable. If all or the
vast majority of units are affordable, we conclude that the development is off-site affordable housing and not a mixed
income building in which both the affordable housing is located and the FAR bonus is used.
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housing bonus are a distinct group from those that use TDRs, which may simply reflect prior
experience and expertise with these programs or locational factors. As Table 4 shows, one of these
five developments used the inclusionary housing bonus in conjunction with TDRs and one
additional development increased its building size through inclusionary housing, TDRs, and lot
assembly.
Table 4: Development Rights Assemblage for Projects Larger than 10,000 Square Feet
Completed 2004-2010
TDRs
Projects
Share of
Average
Total Project Size (sf)
No assemblage
185
53.6%
140,091
Lot assemblage only
80
23.2%
137,337
Inclusionary housing bonus only
1
0.3%
687,731
Lot assemblage and inclusionary
3
0.9%
630,635
housing bonus
TDR purchase only
31
9.0%
113,758
TDR purchase and lot assemblage
42
12.2%
243,034
TDR Purchase and inclusionary
1
0.3%
101,000
housing bonus
TDRs, lot assemblage, and
2
0.6%
279,223
inclusionary housing
All Projects
345
156,165
IV. Determinants of the Prices Paid for TDRs
[to be added]
Note: we plan to further explore the determinants of price for TDRs, including the effects of
such factors as the supply of TDRs available on a given block, the development’s location within a
block (to examine whether purchasers on corner lots or other more desirable parcels pay a premium
for development rights), the final height and total size of a building, and the relation between TDR
prices and the price paid for land parcels in the same area. The relationship between the availability
of TDRs and the price of TDRs relative to land prices may shed particular light on why a greater
volume of TDR transactions occur in certain areas. We also plan to examine how transaction costs
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– including the requirement of a special permit for certain types of transfers and, for certain zoning
lot mergers, the requirement of obtaining the consent (possibly at an additional cost) of “linking
lots” that form a chain of contiguity between the seller and the buyer of development rights – affect
the prices paid for development rights.
At the project level, we will explore the relationship between the average price paid per
square foot of development rights and the number of transactions a developer must enter into to
obtain a desired total number of development rights: do developers pay a premium to sellers who
are able to supply, through a single transaction, the total number of development rights needed for a
particular project? We also plan to examine why the vast majority, 80%, of developments in our
project-level database, did not involve TDRs. This may be due to the absence of unused
development rights within the block, the limits imposed by height restrictions, the influence of a
lack of transparency in the market, or transaction costs that stifle transfers.
V. Policy Implications and Next Steps
One major lesson from our analysis is that programs that impose special permitting or other
regulatory review procedures on the transfer of development rights risk rendering the programs
much less useful. The most recently introduced TDR programs in New York City have steadily
reduced the circumstances under which approval is required for a transfer to occur, and have seen
steady increases in the number of transactions occurring within each program. While the landmark
TDR program, introduced in 1968, requires a special permit for all transfers, the Theater Subdistrict
program, introduced in the late 1990s, only requires authorization from the Department of City
Planning for transfers that will increase the FAR at a recipient site more than 20% above the current
level. The most recent special transfer districts – the Special West Chelsea District, the Special
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Hudson Yards District, and the proposal for East Midtown – entirely dispense with the requirement
of such approvals except in very limited circumstances.94
At the same time, however, these newer programs more carefully designate precisely where
development rights may be transferred to and impose varying restrictions on the number of
development rights a particular parcel may obtain through TDR transactions.95 These newer TDR
programs also are components of broader rezoning initiatives that consider, through the planning
process at a district-wide level, factors akin to those that govern the discretionary grant of
permission under the earlier programs, including the harmonious relationship of new developments
to nearby structures and open space96 and the increase in “the bulk of any new development, density
of population or intensity of use in any block.”97
The decreased regulatory oversight at the transfer stage likely drives the more frequent use
of these district-wide transfer programs, when compared with the landmark TDR program. While
only two transfers occurred through the landmark TDR program between 2003 and 2011,98 eleven
transfers occurred using the Theater transfer program and seventeen made use of the West Chelsea
transfer program. Not only have these newer programs been used more frequently, they have also
seen higher prices paid per square foot of development rights, a fact that may reflect the reduced
transaction costs of these programs. For the eleven Theater Subdistrict transactions in our data, the
average price was $221 per square foot (in 2011 dollars), compared to $196 per square foot for
zoning lot mergers within the same community district. For the fourteen West Chelsea District
94
There is an exception in the East Midtown program for a small subset of particularly large projects, which would rival
the Empire State Building in size, and would require a full review through the City’s Uniform Land Use Review
Process.
95
See generally Vicki Been & John Infranca, Transferable Development Rights Programs: “Post” Zoning?, 78 BKLYN.
L. REV. (forthcoming 2013).
96
New York City Zoning Resolution § 81-744(b) (outlining findings required for discretionary grant of authorization for
additional transfer of FAR to parcels within Eight Avenue Corridor of Theater Subdistrict).
97
New York City Zoning Resolution § 74-792(e)(1) (outlining requirements for grant of special permit for transfer of
development rights from landmark site).
98
However, during this period landmarks transferred developments through twenty-five transactions – including zoning
lot mergers and special district transfers – that did not involve use of the landmark TDR program.
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program transfers for which we know both price paid and square footage transferred, the average
price was $288 per square foot, compared to $174 per square foot for zoning lot mergers within the
same community district.
Our findings suggest that TDR programs that increase predictability and transparency – in
terms of which parcels have development rights available for sale, which development sites will be
allowed to increase their FAR, and what types of transfers will be allowed – are correlated with an
increase in both the volume of TDR transactions that occur and the price paid for development
rights. To the extent that cities want to further development in particular areas through a TDR
program it appears to be worthwhile to invest more considerable time and energy into the ex ante
planning of a TDR district rather than the ex post administrative review of a proposed transfer.
More generally, our analysis of transactions transferring development rights between 2003
and 2011 confirm the prediction that developers prefer methods, such as zoning lot mergers and lot
assemblies, that involve fewer regulatory compliance requirements, less uncertainty, and less
expense than methods such as the Inclusionary Housing Bonus program and petitioning for an
upzoning.
Our analysis also reveals that transactions involving development rights provide a window
for researchers seeking to better understand real estate development costs and the effect that land use
regulations have on development decisions. In the future, we hope to use our data to explore such
issues as:
 whether the availability of TDRs drives up the price for a potential development site
even if that site has not obtained the additional development rights;
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 whether a property surrounded by under-developed buildings with available unused
capacity commands a higher price than an otherwise identical property without
development rights available?99
 If the availability of TDRs affects the price of land that could take advantage of the
TDRS, does that then affect the price of TDRs?
 How does any effect that TDRs have on the price of land vary with the ease with
which they can be purchased as well as the administrative regulations that govern
their use?
Such a research agenda will serve to expand our understanding not only about TDR
transactions, but also about the effects regulatory structures and transaction costs have on land
development more generally. A more sophisticated understanding of these issues will help
policymakers design regulations that will foster a more efficient TDR market, thereby enabling
policymakers to better harness these development rights for particular public purposes. It should
also help inform land use regulation decisions more broadly, by revealing the extent to which
regulatory costs affect early development decisions.
At least one early economics paper predicted that it was unlikely that “landowners in the receiving zone will sell their
property, without TDRs, at its base-density price, i.e. its value at the use permitted without TDRs.” Schwartz & Hansen,
supra note 7, at 176.
99
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