Rezoning sought to allow air rights sale

Developer to buy 58,005 sq.ft. of air rights from Broadway’s Hirschfeld Theatre. An application to transfer additional air rights from the Al Hirschfeld Theatre, formerly the Martin Beck Theater, on West 45th Street started the City’s public review process on April 24, 2006 when the Planning Commission certified the applications of Allen Goldman of Fifth Street Holdings, LLC and SJP Residential Properties.

In 1998, the City enacted zoning rules aimed at preserving Broadway’s historic theaters. The rules created financial incentives to maintain Broadway theaters by allowing theater owners to sell air rights equal to the additional floor area that could be built if a new, as-of- right building was built on the theater’s site. The developer that purchased the theater’s air rights could then use the rights to increase the size of a proposed development above the size allowed by zoning. Under the zoning rules, the sale of a theater’s air rights could be accomplished by Planning Commission certification, requiring review by the Community Board and Borough President, but no additional hearing at Planning.

Fifth Street Holdings first applied to transfer 29,104 sq.ft. of floor area from the Hirschfeld Theatre to use in a new development at 750 Eighth Avenue between West 44th and West 45th Streets. In March 2006, the Planning Commission sent the application to Community Board 4 and Manhattan Borough President Scott Stringer for review.

The Hirschfeld Theatre sits on two lots within two different zoning districts; the result is that air rights can only be transferred from a portion of the theater. Consequently, Fifth Street Holdings sought a second application from Planning to change the zoning text, enabling the sale of air rights from both lots.

Fifth Street’s second application asked for the transfer of an additional 28,901 sq.ft. of air rights if the new text was approved, bringing the total to 58,005 sq.ft. If the second transfer is approved, Fifth Street will construct a 42-story building at 750 Eighth Avenue with 286,263 sq.ft. of floor area, a total increase, after all transfers, from a 10 FAR to a 14 FAR. Fifth Street’s new development will contain 220 residential units, 6,354 sq.ft. of retail and a 101-space public parking garage, also requiring Planning Commission approval.

At the Commission’s review session, David Karnovsky, City Planning’s General Counsel, explained that the zoning text requires Fifth Street to pay the City $10 per square foot of transferred air rights. Fifth Street would put the $580,050 into escrow since, Karnovsky went on to say, the City did not create the notfor- profit required under the 1998 text to be responsible for the funds. Karnovsky told the Commission that the City was working on ideas for use of the funds and added that one plan included providing the money to an established City program, which sends public school children to Broadway shows.

Martin Beck Theater Development Applications Nos. N 060393 ZCM (29,104 sq.ft. transfer), N 060433 ZRM (text amendment), N 060435 ZAM (28,901 sq.ft. transfer), 060434 ZSM (special permit – 101-space garage), City Planning (Paul Selver, Jeremiah Candreva, for Fifth Street Holdings).

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