1. What are air rights?

Air rights, or development rights, refer to unused development potential for a property. In cases where buildings are under developed the owner can transfer or sell that unused floor area to an adjacent lot. 

There are 3 primary ways that air rights can be transferred. The most common way is a Zoning Lot Merger. Through this method the tax lots must be contiguous. The second way is a Special Purpose District Transfer. Through this method the air rights are to be exchanged between granting and receiving sites that are not contiguous. The city allows for these sorts of transfers in special cases when there is a particular zoning goal targeting the area. The third way is a Landmark Transfer. Through this method the properties do not need to be contiguous.

2. Why are air rights important?

Air rights are really zoning development rights; they are important because they indicate how big a building may be constructed on a property. These zoning development rights can be sold to adjacent property owners to allow them to develop larger buildings on their own properties.

3. What circumstances would require you to use air rights?

A transfer of air rights would be used if one lot, which would be the granting lot, has additional unbuilt development rights, or floor area. They would sell these additional development rights to the receiving lot. This could be used to build a larger new building or enlarge an existing building.

4. What is a ZLDA?

ZLDA stands for Zoning Lot Development Agreement. It is an agreement between two owners who are conducting an air rights transfer and it dictates the terms of the transfer. ZLDAs clarify many issues that could come up as part of an air rights transfer, including unused floor area, and what happens in the case of an upzoning or a downzoning. It can also include easements needed to facilitate development, including items such as light and air or cantilevers.

5. What are zoning exhibits?

A zoning exhibit is a legal document recorded with the City Register’s Office. They can be a series of documents that outline the dimensions of a property, who owns or has interest in the property, and sometimes it will describe the combination of adjacent properties for the purposes of sharing development rights to the benefit of one or more owners. 

6. How are air rights transferred?

There are a few options for how air rights can be transferred. One, as discussed before, is an air rights transfer between two property owners who have contiguous properties.

Other ways to get additional air rights are listed in the Zoning Resolution:

• For landmark sites, you are permitted to transfer development rights across a street instead of the two lots being required to be directly adjacent to each other.
• The new Greater East Midtown rezoning has a similar feature where you are permitted to transfer development rights from a landmark to anywhere within that special purpose district. Additionally, any development that obtains air rights will be required to donate to a Public Realm Improvement Fund, which will support local public improvement projects
• In the Midtown Special Purpose District, listed theaters can sell their air rights to anywhere within the Theater Subdistrict. Additionally, there is a required donation to the Theater Subdistrict Fund.
• In the Special West Chelsea District, air rights can be transferred throughout the district. This is intended to enable the transfer of development rights from properties to the west of the High Line in order to get more light and air to the High Line and to create view corridors from the High Line. This transfer also requires a contribution to the High Line Improvement Fund. 

7. What is the difference between a tax lot and zoning lot?

A tax lot is a single parcel of land classified on a tax map produced by the NYC Department of Finance. A zoning lot is a parcel that shares development rights and is viewed as one lot in the Zoning Resolution. Often a zoning lot and tax lot coincide, however, a zoning lot can also be made up of several tax lots. Tax lots must share at least a 10-foot boundary to combine as zoning lots. Zoning lots are defined to the DOB by zoning lot exhibits.

8. Where can you find information about air rights?

This is not easy. Such development rights, if recorded with the City Register’s Office, can be found on the Department of Finance’s website ACRIS. ACRIS stands for Automated City Register Information System. The records for each property are in a database which is searchable by block and lot. You would have to search each property record looking for records that would include zoning lot declarations. The records may be listed under declarations or sundries title. They are almost always filed by a title search company, however, that’s not guaranteed. You can also look for government agencies in the listings.

9. What are some reasons why people are interested in air rights?

People are interested in air rights to increase the size of their proposed building. Developers are limited by the Zoning District regulations and therefore not allowed to build as tall as they would like. Air rights allow developers to increase the floor area of a new building by increasing FAR.

10. In what way do air rights marry 2 properties together indefinitely?

Transferring air rights ties two properties together for perpetuity. Depending on the terms of the ZLDA, it may mean that neither building can enlarge their building without the consent of the other. The Department of Buildings also requires that a no-work Alteration Type 1 application be filed against all buildings on a zoning lot in the case of a floor area change, but that is not always enforced.

11. What are some of the filing requirements to accomplish an air rights transfer?

If air rights are obtained by a Zoning Merger, then:

• Zoning lot exhibits must be recorded with the DOF.
• Exhibits are recorded against all lots included in the new zoning lot.
• A zoning lot can be assembled from multiple tax lots.
• An Alt-1 changing the metes and bounds of the zoning lot giving up area. This is also required to establish how much FAR is available to transfer. 

12. What is the difference between public benefit air rights and private benefit air rights?

Most air rights transfers just financially benefit the granting site, since that owner will get money from selling their air rights. In some zoning districts, however, a portion of the air rights sale proceeds go into a trust for public improvements in that area. This happens with transfers, as mentioned before, within the Theater subdistrict, in East Midtown, and near the High Line.

13. Why are some people against air rights?

People are not against air rights as much as they are against what they believe to be unreasonable property development. If you have a neighborhood that has small buildings, but the zoning regulations would allow a bigger building, then you might be upset with a high-rise building located next to you. Or, you might have a property that gets nice sunlight that is now in the shadow of a taller building nearby.

14. Do air rights allow us to build as big as we want?

Except for transfers from landmarked buildings in the Special Midtown District, air rights transfers are limited to the maximum FAR for the zoning lot created. Because many buildings are already overbuilt, there is a finite amount of floor area typically available.

Download Milrose's Infographic on the Fundamentals of Air Rights Here