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Outrageous Precedent: Taking Air Rights from a Park

Marx Brothers playground park

The tallest building north of 60th street will soon debut in East Harlem, part of a massive project that would redevelop an entire block between Second and First Avenue. In an unprecedented move, the extraordinary height of the development is possible largely because of the transfer of air rights from a park.

At 321 East 96th Street, the development includes plans to build two new high schools, a mixed-income residential tower, and retail space spanning the block between 96th and 97th. The plans also designate 330 units as permanently affordable housing. According to a statement from the mayor’s office, the project would also build the first new high schools in East Harlem in fifty years.

The location is close to the 96th Street Q, and will be a plus for prospective retailers. There’s a lot to like about the proposal. But at the center of it all is a curious little park, and a blatant run-around of existing zoning.

Undesignating parkland

The Marx Brothers Playground sits squarely in the middle of the $1 billion development, and without its air rights the proposed residential tower could not reach its planned 70 stories. For comparison, that’s getting close to the height of the Time Warner Building.

All it will take is the right people in office to say a park is not a park”

“We accepted the city’s word that parks can be used for air rights” said Lo van der Valk, local preservationist and president of the Carnegie Hill Neighbors. “But with further investigation it became clear that this wasn’t the case,” he said. It became clear to city officials, as well, and they needed a workaround. Their solution was to undo the playground’s status as parkland.

Marx brothers playground park

A rendering of the 96th Street development

Parkland is under state jurisdiction, and the bill to end the playground’s park status sailed through the Senate in June with prompting from the de Blasio administration. In early August, a City Council committee approved plans for the residential tower. And in a few months, developers will shut down the park for five years before rebuilding it elsewhere in the lot. All this after a decade of Second Avenue subway construction occupied a third of the playground.

Out of scale

It is no surprise that East Harlem residents have been fuming about the project. The proposed tower is twice as large as everything else in the neighborhood, and will also be the second tallest building on the east side north of Midtown (520 Park Avenue at East 60th Street will eventually take the top spot). In classic form, the tower will deprive 96th Street’s south side of early morning sunlight.

Community Board 11 approved the plans with the condition that the developer explore ways to lower the heights. Carnegie Hill Neighbors has suggested significant setbacks and height limits to permit more sunlight along 96th Street. But beyond old and new fights for air and light, this parkland issue foreshadows a troubling future for reigning in excessive development in New York.

In classic form, the tower will deprive 96th Street’s south side of early morning sunlight”

A dangerous precedent

Marx Brothers playground park

A view of the Marx Brothers Playground

The East Harlem development sets a precedent for re-designating parkland at the behest of development pressures and pet projects. All it will take is the right people in office to say a park is not a park. Geoffrey Croft from the NYC Park Advocates put it bluntly in a comment for the New York Post: “Literally, no parks and other public land would be safe in the city.”

There are roughly 530 “P.O.P.S.” (privately owned public spaces) and pocket parks tucked away across the city. Imagine the bullrush of development that could abuse these spaces. We can guarantee that future projects won’t have the dressing this one does.



UPDATE: As of Tuesday October 24th, Governor Cuomo has halted the continuation of the project until NYC Parks conducts an investigation into whether the site is actually parkland. Read about it in the NYP. Onward!



John Aurelio
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