City Planning’s General Counsel Talks of Emerging Planning Issues by Just Explaining What’s on His Desk

When asked to discuss current trends coming out of City Planning, David Karnovsky, General Counsel since 1999, offered to start the conversation with the matters sitting on his desk. From Broadway’s first air rights sale, to a new community board planning tool, to implementation of City Planning’s complex rezoning plans, the conversation revealed developing trends. Karnovsky, a Harvard Law School graduate, joined City Planning after serving as Special Counsel to the Deputy Mayor of Operations in the Giuliani administration and ten years with the Law Department working on the Charter revision, the Fulton Fish Market, and the adult use zoning text.

Legitimate Theater. With the August 2006 approval of the air rights transfer from Broadway’s Hirschfeld Theatre, the first since the 1998 code amendment creating the Broadway air rights plan, Karnovsky found himself contemplating “what is legitimate theater?” The ’98 text requires two things to complete the transfer: the Broadway building must remain a legitimate theater, and the theater owner must pay into a theater fund managed by a not-for-profit. With the Hirschfeld application underway, City Planning had no definition of legitimate theater, no established theater fund and no not-for-profit.

The legitimate theater question came up when Related Companies proposed to bring Cirque du Soleil to Midtown in hopes of qualifying its project for the Hudson Yards’ theater floor area bonus. The theater bonus, Karnovsky explained, was designed to be an incentive to replace small, off-Broadway theaters that would likely be demolished for new development. Clinton residents argued that Cirque was not that type of theater. Karnovsky believed it was inappropriate for City Planning to determine “artistic content,” but felt it should set out standards of what failed to qualify. So he studied Broadway’s history, consulted experts and reviewed Cirque videos ultimately setting clear prohibitions, like movies and rock concerts. For Cirque, the bonus was inapplicable because of the venue’s size. When the issue resurfaced with the Hirschfeld, the final definition described legitimate theater as a live, public stage production with professional artists.

Karnovsky is working to establish a theater fund and a group to distribute the fund, but due to the irregularity of the contributions, he viewed the range of suggested uses set out in ’98, like audience development, as too ambitious. Karnovsky would not guess what sparked new interest in Broadway’s air rights, but he admitted to receiving several calls about new plans.

Community Boards’ Sword. Karnovsky saw a “new phenomenon” emerging from community boards. Manhattan Community Boards 9 and 6 submitted community based land use plans under Charter section 197-a, a provision intended to give boards a voice in local planning. These plans proposed direct alternatives to private developments being pursued for the same area. Board 9’s plan sought to keep manufacturing uses and allow low density mixed-use buildings in Manhattanville where Columbia University hopes to expand its campus with high density construction. Board 6’s plan only addressed the nine-acre former Con Edison site roughly stretching along First Avenue from East 35th to East 41st where Solow Properties proposes to build 6.2 million sq.ft. of office, retail, and residential space.

The boards, Karnovsky said, are using the mechanism as a “sword” to ensure opposition is heard and to assert a competing vision to unwanted development. Karnovsky called this “unanticipated” by the Charter revision, which envisioned 197-a plans as comprehensive guidelines for an area’s future development. Competing plans create complex issues for the land use review process and the Commission is treading cautiously to ensure equal consideration. With Columbia and Board 9, the Commission voted to send the plans through the land use process concurrently. With the Solow site, the Commission held a hearing on Board 6’s plan. Karnovsky said the Commission will hold its vote until Solow’s plan reaches it by relying on an unused, somewhat obscure City Rule, which reads, “if the Commission finds that it is unable to vote.” The text “cannot mean physically unable,” Karnovsky said.

Private Public Parks. Karnovsky highlighted one more item: the first development to implement the Greenpoint- Williamsburg waterfront esplanade plan. The goal of the zoning, Karnovsky explained, was to have developers build the esplanade while creating incentives for its transfer to the City’s control. At 164 Kent Avenue, the City will hold the C of Os on the four proposed buildings until the esplanade is substantially complete. The developer will then transfer it to the City, gaining protection from tort liability but retaining the right to use the area for zoning compliance, like floor area. Parks will maintain it, though it will not be mapped parkland. Karnovsky called the whole approach “completely non-traditional.”

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