On Dec. 8, 2022, New York City Mayor Eric Adams outlined his “Get Stuff Built” initiative to “add hundreds of thousands of units to address the [the housing crisis],” including loosening administrative hurdles required in connection with rezonings, special permits, and other discretionary actions. This is great news for zoning and land use practitioners—the faster the better! However, in the interim as these proposals take shape, this article focuses on the hidden, as-of-right, no discretionary interference method to maximize development potential: The transfer of air rights (technically, the transfer of “floor area”) from one tax lot to another.

When I first began my career, my understanding of an air rights deal was a way for a big-time developer and a mom-and-pop, one-story business to somehow both make a windfall. One party sitting on unused value and one party capable of realizing such value seemed like a win-win (and still does). So, to understand more, I opened up the Zoning Resolution to see how it facilitated an air rights deal. Surely, there must be an explicit provision, with headers, multiple paragraphs, sub-paragraphs, sub-sub paragraphs, and footnotes (the Zoning Resolution is a comprehensive and dense statute!). I performed the obligatory search for all the terms I could think of, “transfer,” “air,” “development,” “rights.” I found some hits! Transfer of Development Rights from Landmark Sites. Transfer of Development Rights from a Listed Theater. Transfer of Development Rights from the High Line Transfer Corridor. Nope. Though all interesting in their own right, they were not applicable to your typical mom-and-pop deal.

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