Water Street and the Theft of Public Domain

City To Bless Theft (?) of the Public Domain – This Time on Water Street

Op-ed

Lynn Ellsworth

 A neighbor alerted me to the following bureaucratic drama over public private plazas.  It turns out that the City Planning Commission will be holding a hearing this Wednesday at 10:00 at 22 Reade Street (held March 28) to discuss a zoning text amendment that would allow the owners of a string of properties along Water Street to convert the long frontages of public-private plazas (known as “POPS”) into commercial retail spaces. Yet the income from the leases of newly created retail spaces will not accrue to the public. It won’t actually support the maintenance and improvement of public spaces elsewhere in Lower Manhattan – although one of the building owners is the maintenance partner of an extremely sad looking neighboring, corporate plaza. 

That seems like a poor deal in the extreme and potentially a really big legal problem. Is the City Comptroller studying this deal?  I hope so.

 So what’s a POPS and how might this act constitute theft of public resources? Simply put, a POPS is a public amenity that the city forces a developer to give something to the people of New York in a crude “exchange,” one that allows a developer to harm the public in some other way.  Typically a developer asks to break the zoning rules in a way that harms neighborhood character or steals air, views, and sunlight from the public.  Since 1961 the City has said that they can go ahead and do so, as long as the developer creates a public amenity of some kind in exchange for the harm. However, since 1974 the many deals to make these POPS have been codified in considerable detail. (The deals made for POPS made between 1961 and 1974 are more nebulous).  Usually the amenity the city asks for is some kind of park or plaza. 

POPS were inventoried a few years back in a book by a Harvard professor named Jerold Kayden.  His inventory drew a lot of people’s attention to the how awful most of the plazas are.  You’ve seen POPS all over. The little garden in front of the tower at 105 Duane is a POPS, one of the better ones.  The huge spaces surrounding Citibank at Greenwich and Desbrosses are another example of a POPS. The ugly plaza in front of the Harley showroom at Walker and Broadway is a POPS.

Most POPS are notorious for being design failures and for the total absence of any real public amenity within them. Architectural critics and civic groups with an eye to the public interest have long argued that we need to stop making these bad deals that create POPS. In fact, former City Planning Commission Joe Rose once proposed that we change the zoning to just disallow these these POPS deals altogether.  The Real Estate Board of New York, predictably, was not in favor of that firm a change in the rules.  Although as the Water Street deal makes clear, it is high time to revisit Mr. Rose’s proposed ban.

The Water Street POPS are no exception to the long history of design failure of POPS  and in terms of their failure to serve the public interest.  The buildings on  Water Street are just excessively tall, banal office towers and the public-private arcades underneath them are not very useful public spaces.  For this reason, not many New Yorkers would mourn the transformation of the arcades into something else.  Retail is not a bad idea for them.  But what kind of retail?  And what would the city do with the rents from that public space?  The City get the rents, right? 

Oops, no mention of rents in the text amendment up for public hearing.

Rents just aren’t part of the discussion. Why?  Instead, there is only the vaguest notion of a “compensating amenity” which could be a drinking fountain or a garbage can for all we know.  For this reason, it appears to be merely the kind of old-school deal in which the city relinquishes a space and gives it back to the developer.  What a terrible deal for the public!  It’s saying to the developer, hey dude, not only can you build taller than allowed and create ugly buildings, but you don’t have to give anything of substance back to the public in exchange.  Instead,the public will be happy as little serf-like consumers, thrilled at the potential existence of yet another Duane Reade or Victoria’s Secret corporatist shopping experience, while all of our other public spaces deteriorate from lack of investment.  At best we get a restaurant with a few outdoor tables (hardly a public amenity).  And are we supposed to  cheerlead at how the developer just got richer by developing what remains of the public domain?

And what would happen if we made such bad deals like this all around the city?  “Here, Big Real Estate Lords, take your POPS back for commercial development because municipal government is too lazy to figure out how to use the space for the genuine public interest, as the law intended.  And hey, you don’t have to give us anything specific, we’ll just trust some future bureaucrat to make sure of a ‘compensating amenity.'” Wow.  Is this what municipal administration looks like in the Time of Oligarchy?

It looks to me very much like a kind of theft of public resources, bizarrely sanctioned by our developer-dominated municipal government.  And the additional sanctioning of the deal by the community board is another interesting mystery that I’d love to get the inside story on. Community board vote or no, it is a precedent that should not go forward.  Now might be a good time to revisit again all the plaza rules in general (some of which seem up for grabs in another hearing the same day) and not as a mere text amendment, but as a ULURP change that requires greater public debate and scrutiny.  

So where does that leave us?  You can go to the hearing and tell them not to do it. [I did and so did MAS and a few others].  But they probably will go forward anyway.  So, what about lawsuits?  Where are those public-spirited City Club lawyers when you need them? 

Maybe of course, we need to reform the process itself so that instead of a bureaucratic text amendment, we have a new way for the public to argue about this and present alternatives. It would also be nice – since I’m dreaming up a new and fairer process  – to build in public access to public-interest zoning specialists who are not affiliated with, dominated by, or captured by Big Real Estate. 

Debate and corrections invited on the issue.  Should there be POPS deals anymore?  And should we give existing ugly POPS back to the developers for retail conversion? If so, what should we get in exchange?