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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 can be Draft: please not cite or circulate without permission Page 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 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 and “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) 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)) 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) 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) Richards, supra note Error: Reference source not found; David A Richards, Note, Development Rights Transfer in New York City, 82 YALE L.J 338 (1972) Hershel J Richman & Lane H Kendig, Transfer Development Rights A Pragmatic View, URB LAW 571 (1977); Note, The Unconstitutionality of Transferable Development Rights , 84 YALE L.J 1101 (1975) Draft: please not cite or circulate without permission Page 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 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 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 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, 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, 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 See infra note – and accompanying text Draft: please not cite or circulate without permission Page 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, Maryland’s farmland preservation program and New Jersey’s Pinelands program.12 In addition to preservation See Mills, supra note Error: Reference source not found, at 63-64 See Mills, supra note Error: Reference source not found (“[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, (“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) 12 Pruetz & Pruetz, supra note Error: Reference source not found, 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) 10 Draft: please not cite or circulate without permission Page 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 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), 13 NELSON, supra note Error: Reference source not found, 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 Error: Reference source not found, at 474-75 16 Been & Infranca, supra note Error: Reference source not found, at 18 17 See NELSON, supra note Error: Reference source not found, at Draft: please not cite or circulate without permission Page 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 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 18 Marcus, Air Rights in NYC, supra note Error: Reference source not found at 870 Draft: please not cite or circulate without permission Page 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 below However, buildings still remain subject to height and setback restrictions in zoning districts where those apply 19 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 Error: Reference source not found, at 871-72 21 Kruse, supra note Error: Reference source not found, 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 Error: Reference source not found, 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 Draft: please not cite or circulate without permission Page Figure 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 Error: Reference source not found, at 873-74; Kruse, supra note Error: Reference source not found, at 101 24 Marcus, Air Rights in NYC, supra note Error: Reference source not found, at 873 (citing NEW YORK, N.Y., ZONING RESOLUTION § 12-10 (1961)) 25 Marcus, Air Rights in NYC, supra note Error: Reference source not found, at 874; see also Richards, supra note Error: Reference source not found, at 468-470 (1986) (discussing additional concerns that motivated amendment) Draft: please not cite or circulate without permission Page 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 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 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 Error: Reference source not found, at 101 n.12 28 Richards, supra note Error: Reference source not found, 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 Draft: please not cite or circulate without permission Page 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 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 Error: Reference source not found, at 102; Richards, Note, supra note Error: Reference source not found, at 351-53 33 Norman Marcus, Mandatory Development Rights Transfer and the Taking Clause, supra note Error: Reference source not found, at 91, 92 34 Richards, supra note Error: Reference source not found, at 447; Stevenson, , at 1334-35 (“The [1968] amendment was the first example of “beyond-the-block” TDR use, drastically changing the concept of, and traditional justifications for, TDRs.”) 35 Kruse, supra note Error: Reference source not found, at 101 (citing N.Y City Planning Comm'n, Rep CP-20938, at 876 (1969)); Marcus, Air Rights in NYC, supra note Error: Reference source not found, at 880 36 438 U.S 104 (1978) 37 Kruse, supra note Error: Reference source not found, 102 38 Kruse, supra note Error: Reference source not found, 102; Richards, supra note Error: Reference source not found, at 451 (noting that amendment was “announced October 7, 1969 (the same day the railroad’s suit was filed)”) Draft: please not cite or circulate without permission Page 10 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 Overview 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 76 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 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 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 Draft: please not cite or circulate without permission Page 19 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 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 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 not include them in our analysis Draft: please not cite or circulate without permission Page 20 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, Draft: please not cite or circulate without permission Page 21 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 77 Related ZLMs 4 0 23 Theater 1 West Chelsea 4 2 0 0 Landmark and Other 0 0 1 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 average price per square foot in these areas, $186 per square foot, was nearly identical to 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 Draft: please not cite or circulate without permission Page 22 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) 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 Draft: please not cite or circulate without permission 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 Error: Reference source not found, 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-ofright zoning lot merger, has enabled the most aggressive builders to bypass the restrictions that the law would otherwise impose.”) Draft: please not cite or circulate without permission Page 24 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 59 th Street), which includes Community Districts 1, 2, 3, 4, 5, and 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 Draft: please not cite or circulate without permission Page 25 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 programs Of the 77 projects that used TDRs, sixty-four obtained them through an arms-length 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 Draft: please not cite or circulate without permission Page 26 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 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) 200,000 Total Projects Projects 33 159 71 51 64 378 Used TDRs Share of Projects Using TDRs 3% 16 10% 17 24% 20 39% 23 36% 77 20% Draft: please not cite or circulate without permission Page 27 Developers often used TDR purchases in conjunction with other methods for increasing project size Table 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 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 Draft: please not cite or circulate without permission Page 28 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 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 0.3% 687,731 Lot assemblage and inclusionary 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 0.3% 101,000 housing bonus TDRs, lot assemblage, and 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 – Draft: please not cite or circulate without permission Page 29 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: 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 Draft: please not cite or circulate without permission Page 30 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 Draft: please not cite or circulate without permission Page 31 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; 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 99 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, Draft: please not cite or circulate without permission Page 32  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 supra note Error: Reference source not found, at 176 Draft: please not cite or circulate without permission Page 33 ... 1: Square Footage Transferred, by TDR Program Number of square feet 0-5,000 5,0 01- 10,000 10 ,0 01- 15,000 15 ,0 01- 20,000 20,0 01- 25,000 25,0 01- 50,000 50,0 01- 75,000 75,0 01- 100,000 10 0,0 01- 150,000 15 0,000+... 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... 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