New York City crafted a plan to help artists stay in the pricey Theater District as its property values surge. But one group’s saga shows that getting a rule on the books is just the first step.
It’s a matter of basic urban physics: When rent prices and skyscrapers go up, artists and arts organizations get squeezed out. Booming cities everywhere have experienced this—especially New York, where space historically used for theaters is now among the most expensive in the country.
But just off one of Manhattan’s busiest avenues, a non-profit theater group has found a home it can actually afford. The 3,000-square-foot space sits inside a luxury apartment tower, where condos sell for up to $2.5 million. But the Theater of the Oppressed NYC, which has New Yorkers write and act in plays about their experiences facing discrimination and social injustice, scored their space for just over $25,000.
Getting there wasn’t simple. For years, it looked as though the deal would never go through. But in the end, the story serves as a mark of success for an ambitious city effort to use zoning laws to carve out space for the arts. And Theater of the Oppressed NYC’s property saga suggests that if cities want to use zoning to preserve and protect underserved organizations, tighter laws and an eagle-eyed community have to work together to make sure the arts don’t fall through the cracks.
Zoning the Yellow Brick Road
“The arts, especially when it comes to physical buildings and real estate property, have a real tough time in the city,” said David Diamond, who formerly led a community board in midtown Manhattan’s theater district. Back in 1998, New York City created a zoning amendment mandating that any developers who purchase air rights from theaters in the area would have to contribute a certain amount of money to a fund that pays for theater maintenance and programming.
But arts advocates wanted to go a step further. “We saw, while prognosticating about the future, that a lot of buildings were going to get built along Eighth Avenue that were not going to necessarily have a theater character in this theater district,” Diamond said. The community board wanted to ensure that artists wouldn’t be crowded out, and turned to zoning laws to make that happen. Now, said Diamond, “If you’re building along the Eighth Avenue corridor, you have to have a theater-related use in the new building.”
The rules about air rights do little to illuminate how they should be executed or enforced. All it says is that any developer building along the Eighth Avenue corridor is required “to enhance or reinforce the general purposes of the Theater Subdistrict.”
This is a vague pronouncement. But it means that, technically, the theater community can buy tangible lifelines for arts groups almost literally with nothing. “People who are selling air rights are basically selling something that doesn’t exist,” Diamond said. “It’s just air.”
So far, three deals have been made regarding air rights and the Eighth Avenue Corridor, and the other two have gone far more smoothly. Inside Clinton Cameo Studios, 120 organizations have access to built-out, subsidized rehearsal space with water fountains, a kitchenette, and cubbyholes. The project has been considered a success by both the city and the groups who use it. But Theater of the Oppressed was the first, and the one that nearly never came to fruition.
The Cost of Doing Business
In 2006, the developers SJP Residential Properties purchased 28,901 square feet of unused development rights from the Brooks Atkinson Theater in order to build a 43-story building on Eighth Avenue. Developers said they would build three offices for theater organizations to rent out below market rate. Yet they couldn’t find tenants, and finally, in 2014, decided to sell the space outright.
When Katy Rubin, the executive director of Theater of the Oppressed NYC, first saw the three units, she could see why no other organizations wanted them. Two were completely windowless; the floors and walls were scuffed from storing machinery; and the layouts had narrow hallways and pillars in inconvenient places. The rooms bore little resemblance to what they were housed inside: a multi-million-dollar condo building that has wine refrigerators and a spa lounge with a waterfall.
“It was just concrete walls, linoleum floors, and fluorescent lights,” said Rubin. “It felt like such an insult to theater organizations to say, ‘Here it is: rent it.’”
Yet Theater of the Oppressed NYC saw the potential and decided to buy. But what should have been quick success for the city’s zoning efforts—a developer finding an organization willing to buy empty rooms, a nonprofit theater group scoring an affordable office—instead turned into a four-year process that Rubin describes as “very, very unpleasant and painful.”
Amending the original agreement from a rental property to a full sale took nearly a year. After the Department of City Planning approved the new deal, “we were making progress,” Rubin said, but another unexpected hurdle arose: a lawsuit between the developer and the condo board. At that point, Rubin says, SJP “totally dropped off the map.” Without another lease, the theater group ended up having to move into ill-suited short-term rentals.
In a statement to CityLab, SJP said “In order to satisfy the group's demand for ownership of the units, we had to go through a labor-intensive process to have the city approve the change. This process took approximately one year and then we had to go through another difficult one-year process to get the building’s condominium board to also approve the change.”
Rubin, the organization’s lawyer, and David Diamond looked into New York City zoning laws to see if there were consequences if developer didn’t follow through. They found nothing. “If they didn’t try to find a tenant, there were no consequences. It’s just not in the declaration,” said Rubin. “It was very hard to even enforce this. We were looking at how you could make them uphold the deal, and it seemed that it had to come from the developer’s good will.”
Finally, fed up that there was no other way to hold the developers accountable, Rubin went to the press. Shortly after the Village Voice published a story, Stephen Johnson, a senior planner at City Planning, contacted Rubin. He asked if she was still interested in the space and said he thought they could finalize the deal.
According to Johnson, City Planning made phone calls and tried to find out what was going on as soon as he heard about the project’s delays. “I want to emphasize we understand it takes a long time, things fall through the cracks, but we got a positive end result,” he said.
The deal officially handing Theater of Oppressed NYC the space closed in September. The condo board was “pretty shocked,” Rubin says, to discover that there was to be a nonprofit theater inside the residence—even though the building couldn’t have been built if it didn’t originally reserve space for a theater group. CityLab’s calls to the condo board were not returned.
Signs of that tension still exist. Theater of the Oppressed NYC members are not allowed to use the building’s main entrance with the doorman. They instead use what used to be the maintenance door. Even the signage on its front—a small plaque that reads “Theater of the Oppressed NYC”—had to be approved by the condo board. The organization also spent $70,000 on renovations, knocking down a wall to combine two of the offices, re-painting scuffed walls, updating the dilapidated bathroom, and sound-proofing part of the office to deal with an exceptionally noisy air vent.
Still, Rubin is thrilled that the organization has a space to call home. Now, she said, they have the room and flexibility to hold staff workshops about topics ranging from personal finance to issues the organization covers: voucher access, affordable housing, and HIV/AIDS discrimination laws. Rubin loves that they finally have the space to house weekly teach-ins and have community movie nights. “It’s pretty radical,” she said, “the difference in our ability to work now.”
In the end, Theater of the Oppressed NYC was able to get its space. But, had the Village Voice never published their story, an action that appears to have prompted both City Planning and SJP to move forward, it’s unclear what the outcome would have been. Prime real estate in the heart of the Theater District would likely still be empty, and it’s not clear that there would have been any repercussions for the developer.
Joe Restuccia, a community board member who helped negotiate the Clinton Cameo Studios deal, says he doesn’t believe what happened to the Theater of the Oppressed NYC will happen to future projects. Theirs, he said, “was the first one done, so everyone was trying to figure out what to do.”
Diamond, who was part of the original negotiation, agreed that deal was something of a guinea pig. “I think we were very naïve,” he admitted. “We thought, you know, we get what we can get. I don’t think we were great negotiators. It was confusing for us as a community board to understand what the repercussions could be if somebody didn’t follow through.”
Now that the consequences have been spelled out, other cities looking to create similar zoning policies—and New York City neighborhoods looking to utilize them—can use local community leverage and stricter enforcement codes to ensure that developers stick to the spirit of their zoning agreements.
While community boards have no political power, they do get a say in what their neighborhoods should look like. “The biggest inducement to make developers want to help is that their attorneys are always bringing things before the community board to ask for stuff,” Diamond said. “And the leverage there is to say well, we’ll consider that, but you guys haven’t honored your other clients, so we aren’t going to give you what you want on this other building. A lot of the same developers build multiple projects, and they don’t want to be known as the developer that doesn’t live up to their agreements.”
Restuccia said arts organizations were able to have a larger say in how the Clinton Cameo Studios were built out because the developers knew their project had a better chance of getting approved if it had community support. “Developers want one thing: certainty,” Restuccia said. “They want to know that as part of whatever they’re doing, they’re not going to get hung up over public approvals.”
Still, New York’s zoning laws have not been updated with repercussions for developers who renege on air rights deals. “If people aren’t paying attention, and [there] isn’t a strict process for enforcement, the developer can get away with whatever they are trying to get away with, because deals are only as good as [their] enforcement,” said one member of Community Board 5.
Currently, enforcement is the responsibility of the Department of Buildings, “and enforcing the Theater Subdistrict rules is not top of the Department of Building’s list of things to do when people don’t have heat [or] hot water and there are landlords doing horrible things all over the city,” said Diamond. Johnson, from City Planning, suggested that, moving forward, restricted declarations could be drawn up as part of air rights agreements. That would put specific, scheduled steps in place and repercussions for the developers if the steps are not followed through.
Rubin is thankful that the air rights deals exist, and that her organization finally has the space it does. But she still feels that nonprofits are in a precarious situation without legal enforcements in air rights deals.
“I think New York is a pretty progressive city, and they’re trying to have more government here to support things like this, but it’s still so little in comparison to what we need,” she said. “Are arts organizations and developers held in the same regard in New York or anywhere in New York City? Definitely not.”