Testimony on Privately Owned Public Spaces in New York City

Regional Plan Association testimony to the Committee on Land Use, June 29th, 2016 on Privately Owned Public Spaces in New York City

Thank you for the opportunity to submit testimony. My name is Moses Gates, and I represent the Regional Plan Association, which aims to improve the New York metropolitan region’s economic health, environmental sustainability and quality of life through research, planning and advocacy. RPA has long been a supporter of vibrant and modern public spaces. 

More and better public spaces are necessary in order to improve the city as a whole. RPA’s vision for the region centers around a large amount of growth in the urban core. This growth cannot simply happen in isolation – improved urban infrastructure needs to accompany it, and accessible open space is a critical part of our urban infrastructure. And since much of the open space in our dense urban areas is, and will continue to be, Privately Owned Public Spaces (POPS), we need a smart and comprehensive plan as to how these will be developed and improved to accompany our job and residential growth in our urban core. We believe we have both an opportunity and obligation to improve the quality, as well as the quantity, of our arcades and privately owned public spaces over the next decades.  

The recently passed Water Street text amendment underscores the upcoming focus on these improvements. While RPA applauds the addition of resiliency measures, the retaining of the 24-hour nature of the open spaces, and believes that the partial change from open space to commercial space is not something which should necessarily be off the table, we also think it is vitally important that the recent changes to this special district do not serve as a de facto template for the transformation of our POPS. 

In lieu of this, RPA believe that there should be the implementation of a citywide task force to study POPS and recommend zoning changes, both for renovating and revitalizing our existing POPS, as well as for new POPS likely to be produced by new development. The Water Street POPS was the first of the older POPS revisited with a major text change, but this text change should not be treated as precedent. Instead of setting citywide policy through a zoning text change in a special district, a citywide task force on POPS should be convened to make overall recommendations on the older POPS, and how to best approach their modernization, before the initial changes are implemented. This task force could be made up of government agencies, non-profit organizations, academics or other experts, elected officials, and members of community boards with large amounts of POPS.

The Water Street text amendment represented a fundamental change in the way we address incentive zoning and privately owned public space. The idea behind privately owned public spaces has always been a permanent private benefit in exchange for a permanent public benefit, with private floor area is exchanged in return for public space. This text amendment, which reduced the amount of publicly accessible open space without reducing the amount of private bonus area given, represented a fundamental change to this agreement. To extrapolate this change to the city at large, no matter the additional benefits, is not something that should be undertaken without a great deal more engagement and study, on a citywide level. Moreover, it runs the risk of sending the message that public benefits meant to be permanent in the zoning code are, in fact, temporary and subject to revision. 

RPA also urges the city to start off this conversation by committing to a “no-net-loss” policy, with a one-to-one replacement of publicly accessible space. State Parkland, through the public trust doctrine, has long had a de facto “no-net-loss” policy, and this policy should be extended to all publicly accessible open space. If public open space is turned into commercial space, as with Water Street, or is otherwise lost, there should be a one-to-one replacement of this public space. This replacement does not necessarily need to be on the same lot, the replacement area could be expanded to the entire block, or even the Community Board.

The public space would also not necessarily need to be at street level. Existing roof or terrace space, or even enclosed or inaccessible ground-floor lobby space, could be utilized, as long as it was made reasonably publicly accessible. San Francisco has long has a program where public plazas leveraged by incentive zoning are allowed above ground, and other cities, most notably London, are currently leveraging significant publicly accessible above-ground space as part of the incentive zoning process.

In the case a POPS is converted to a commercial space, or the space is otherwise lost, any costs for this one-to-one replacement should be borne by the building owners. This should not be financially onerous for owners, and would likely represent win-win scenarios. POPS, almost by definition since they are used to obtain more square footage, are in high-market areas where square footage is very valuable and commands high rents.  Commercial conversions mean building owners are gaining valuable street-level commercial square footage in a high-market area, and further enhancing their existing overall commercial investment through a more attractive street-level design. Exchanging this square footage for roof, terrace or lobby space which is not currently income-producing would still represent a likely financial benefit for the owners.

This policy of “not-net-loss” should also be extended not just to the amount of open space, but also to the accessibility of this open space, in terms of amount of time accessible, and quality and amenities in the space as well. New York, and especially the high-density areas where POPS are prevalent, is a 24-hour place, and public access is valuable at all hours of the day. Losing time is as important as losing space, and losing quality as important as losing quantity.