NYS pols are targeting the favorite loophole of supertall developers

Albany bill is co-sponsored by Assemblywoman Linda Rosenthal and State Sen. Robert Jackson
By Eddie Small | May 03, 2019 07:00AM

State Senator Robert Jackson and Assemblywoman Linda Rosenthal are tackling the loophole of mechanical voids (Credit: iStock and Endometriosis Foundation of America)

State Senator Robert Jackson and Assemblywoman Linda Rosenthal are tackling the loophole of mechanical voids (Credit: iStock and Endometriosis Foundation of America)

The city’s nascent effort to tackle a loophole used by savvy developers to increase the heights of their buildings has already attracted its fair share of critics, including a pair of state legislators who claim to have a better approach.

At issue is developers’ use of mechanical voids, or unoccupied floors containing structural and mechanical equipment, to make their buildings taller and achieve higher prices from buyers who crave panoramic views on high floors. The New York City Council is currently considering a proposal from the Department of City Planning that would make spaces like these count toward the maximum size of a building if they are taller than 30 feet.

But this measure would not do nearly enough to actually address the problem, according to Assemblywoman Linda Rosenthal.

“My question is, why do they have to allow this much leeway?” she said. “Because it still permits the developers to go higher than they would be allowed to, and, in fact, none of the buildings studied by the city needed that much space.”

“It’s so apparent that they’re trying to please developers,” she continued.

Rosenthal and state Sen. Robert Jackson are co-sponsoring a bill in Albany that she says would tackle the loophole much more comprehensively. It would make all space for mechanical equipment count toward a building’s height unless it comprises less than 5 percent of property’s total area, and it would limit void space to no higher than 12 feet per floor after an initial 20 feet.

“If you want to use that space for mechanicals, that’s fine,” Rosenthal said, “but it’s not free. It has to be counted, and in the city’s version, it’s not counted.”

The original amendment from DCP would have counted mechanical space taller than 25 feet toward the maximum building size, but the City Planning Commission voted to expand this by five feet. Agency Chair Marisa Lago said in testimony on April 10 that the reason for the expansion was “based on the testimony of the various engineers and our desire to assure that new, more energy-efficient mechanical equipment not be constrained by zoning.”

Ed Bosco of the American Council of Engineering Companies of New York said the 30-foot limit proposed by the city was much more practical and realistic than the 12-foot limit proposed by the state given the mechanical needs of modern buildings. He viewed the general pushback against mechanical voids as overly simplistic.

“There’s a technical discussion among the professionals saying, ‘This is how the buildings should develop,’ and there’s the public view of this, which is just, ‘I want the buildings smaller,’” he said. “Nobody needs a 160-foot void, but there are reasonable floor heights.”

The state’s proposal, meanwhile, has attracted more support from preservationist groups who have been dissatisfied with the city’s actions so far. Sean Khorsandi, executive director at the nonprofit preservation organization LANDMARK WEST!, described the DCP proposal as “ridiculous,” especially compared to the bill in the State Assembly.

“Maybe it comes to a head where the city is misbehaving, right,” he said, “and so it’s maybe high time that the state steps in and brings in a dose of reality.”

And the Real Estate Board of New York maintains that both proposals are too stringent, advocating for a 35-foot limit to best accommodate factors like ventilation requirements and infrastructure to improve sustainability.

REBNY president John Banks said in a statement that the state’s proposal “would greatly hamper sustainability goals, inhibit innovative design, and produce unintended consequences that would hinder the production of critically needed housing.”

The City Council has until June 3 to vote on DCP’s mechanical voids proposal and has tentatively scheduled the vote for May 14, according to the office of Council member Francisco Moya, chair of the zoning and franchises subcommittee. The amendment’s language has not been finalized, and it remains unclear whether it would reduce the limit on mechanical voids from 30 to 25 feet, as negotiations are still ongoing.

Moya said in a statement that abuses of mechanical voids “serve absolutely no public good” and are just “a gift to developers.”

“If we don’t rein in the mechanical void loophole, we’ll all be living in the shadows of these giant buildings just so a wealthy few can have a better view and developers can bask in the profits,” he said.

The real estate industry has been bracing for a less friendly environment in Albany since November, when Democrats took full control of the legislature for the first time in years. Although most of the focus from both lobbyists and politicians has been on New York’s rent laws so far, Jackson said the energy toward cracking down on the real estate industry could help pass the mechanical voids bill into law this year or next year as well.

“We have, obviously, a Democratic-led New York State Senate and a Democratic-led New York State Assembly,” he said, “and so now, in my opinion, the door is open to move forward.”

The bill is currently in the Assembly’s housing committee and has more than 30 cosponsors, according to Rosenthal. She anticipates resistance from the city, and said she already knows what New York will end up looking like if the City Council passes DCP’s proposal while Albany does nothing.

“If it goes through and mine does not,” she said, “in a few years, you’ll be able to look up and see lots of void space.”