Most of the units inside the Platinum, a nine-year-old luxury development on West 46th Street, feature the kind of extraordinary amenities one has come to expect from a 43-story condo building in midtown: wine refrigerators in every apartment; a virtual-golf room; an elegant 26-foot-long fireplace framed by a moat of flowing water. “Powder rooms include Dornbracht chrome finishes, frameless glass showers, exotic limestone floors and walls, and much more,” trumpets an old promotional website (the building sold out in 2011). “These cutting-edge NYC condos set a new standard for luxury living in Manhattan” — a dollhouse fit for the oligarchs who can afford the eight-figure listing prices. Tucked away on the third floor, however, there are three 1,000-square-foot units that aren’t for sale: They’ve been set aside for use by not-for-profit theater groups. The rooms aren’t nearly as lavishly appointed — and yet the first time she saw them, Katy Rubin, executive director of the Theatre of the Oppressed NYC, a small group with a small operating budget that has struggled to find affordable rehearsal space, thought they were “a palace.”
But then Rubin began to notice odd deficiencies: unrelenting mechanical noise in one of the units; a lack of natural light; a single toilet serving all three spaces. Compared to the rest of the building, the space seemed like “an armpit.” Nevertheless, even troublesome real estate represented an opportunity for permanence and security. “We’d die to move in,” Rubin recalls thinking.
These hidden units are the result of the Department of City Planning’s Theater Subdistrict plan, which involves an agreement between real estate developers, Community Boards 4 and 5, and the owners of the landmarked Broadway theaters. In exchange for acquiring and profiting from the air rights to the theaters, developings building along Eighth Avenue must contribute to the community by, for example, creating new spaces for not-for-profit theater organizations. When the plan was written, the hope was that it would protect and strengthen the city’s cultural heart while allowing for desirable growth in the rectangular area bounded by 40th and 57th streets and Sixth and Eighth avenues, without pushing out the artists who work in the neighborhood.
In reality, the plan has proved a mixed bag, producing brilliant successes but also compromises and at least one ongoing stalemate: Despite lengthy negotiations with the Platinum’s developer, SJP Properties, Theatre of the Oppressed NYC has never successfully moved in to the units Rubin inspected. Instead, the not-for-profit has been left to shuttle between temporary, unsatisfactory homes — dealing with theft in a communal workspace and a fly infestation in a church basement — while the Platinum units have remained entirely vacant.
The plan dates back to 1998. That year, the DCP amended its Zoning Resolution to grant owners of some landmarked Broadway theaters the ability to sell developers their air rights — the vertical space above a property that its owner could use to build upward if they wished. The new owners are then legally obligated to maintain their properties as legitimate theaters in perpetuity, thus, at least theoretically, bolstering the long-term viability of the theater industry in New York. A portion of the air rights sale also goes into a Theater Subdistrict Fund. Managed by a dedicated council made up of city officials, including the mayor, and theater industry leaders, the fund supports new productions, audience development, and programs aimed at increasing diversity among directors, playwrights, and other theater staff. In 2015, Mayor de Blasio appointed Lin-Manuel Miranda to the council.
As for the real estate developers who acquire transferable air rights, they can seek approval from the DCP and relevant community board to use them anywhere within the subdistrict, basically taking the vertical space above a theater and shifting it to another lot elsewhere. Since the plan’s inception, ten theaters have sold a total of 596,698 square feet of floor area to developers for them to expand other projects around the subdistrict, sales that have contributed more than $9 million to the fund.
Complications arise if a developer wants to build properties along Eighth Avenue, which, according to the DCP, has long been ripe for “orderly growth” between 42nd and 56th streets, with considerable potential for “new housing and commercial development.” A developer who wishes to build along the Eighth Avenue corridor can acquire additional air rights to realize this potential. In exchange for the privilege, however, the developer must ensure their building relates “harmoniously to all structures and open space in its vicinity,” while also — and this is crucial — serving “to enhance or reinforce the general purposes of the Theater Subdistrict.”
What does it mean for a real estate developer to “enhance or reinforce” the general purpose of a creative neighborhood? The phrasing was sufficiently vague to attract the attention of the Manhattan borough president, Scott Stringer (now the New York City comptroller). In 2006, Stringer wrote a letter to the City Planning Commission recommending that it “set a high bar” in its interpretation of the clause by requiring a developer to make a “tangible contribution” to the community — such as “space for theatrical uses.”
In some cases the arrangement has lived up to expectations. In 2008, the InterContinental New York Times Square hotel near 44th Street and Eighth Avenue was developed using air rights acquired from the Majestic Theatre. The developer engaged with the local community to simultaneously construct an affordable, well-equipped rehearsal and workshop space — what is now Clinton Cameo Studios. “We have 116 theater groups who use it for workshops, rehearsals, classes, and auditions,” says Joe Restuccia, the executive director of the Clinton Housing Development Company, which manages the studios. “We’re in the process of doing more of these right now because it has been so successful.”
But as it currently stands, there are no clear consequences for a developer who fails, once their building is completed, to tangibly “enhance or reinforce” the community. If a developer follows through in bad faith, it can leave artists marooned with no space — and no recourse.
The Platinum building was the first development to take advantage of enhanced air rights.
In 2006, having purchased air rights from the Al Hirschfeld Theatre to build up on Eighth Avenue, SJP Properties began discussions with the DCP and Community Board 5 as to how it could fulfill its obligations to the subdistrict. A 3,000-square-foot space was ultimately in the yet unbuilt property. But when the building opened, the space turned out to be suboptimal, and also too expensive, even at below-market rate: No not-for-profit that considered moving in could afford the rent. “There was some naïveté on the part of the community,” David Diamond, a former board member of CB5, told the Voice. “This was the first of what we thought would be many opportunities.”
In 2014, having failed to find any suitable tenants, SJP opted to sell off its units for a token amount. This is when Theatre of the Oppressed NYC, which works with disadvantaged communities in the city — LGBTQ youth, homeless people, sex trafficking survivors — registered interest in buying the space and began negotiations with SJP.
From the very beginning, the group faced unexpected obstacles. The Platinum’s condo manager, Nancy Califano at Halstead Management, learned about the transaction, Rubin says, and made the “nastiest, [most] threatening phone call.” Rubin says that Califano called her directly and described the situation as “a safety risk” because of a shared fire escape between the not-for-profit units and the condos — which Califano believed the actors could use to rob other residents. (Califano declined to comment when called and did not respond to detailed written questions from the Voice, except to say that “to the best of my knowledge the space is owned by [SJP].”)
“And then there were a lot more hiccups — slow, slow, slow, slow for months,” Rubin says, until the transaction seemed to come to a complete standstill because of an unrelated lawsuit between SJP and the building condo board. When Rubin’s group questioned SJP, the developer discouraged them from complaining, Rubin says, by pointing out it was “doing a mitzvah” — a good deed. A request to inspect the units, submitted to SJP through its lawyer, Paul Selver, was not returned. However, Selver said, “the developer is committed to going ahead and consummating the deal that it has made with Theatre of the Oppressed” — once, that is, the unrelated issues between SJP and the condo board “are resolved.”
Rubin gave up waiting in 2015. After spending money “we didn’t have” on temporary office spaces, several moves, storage for the company’s possessions, and nearly $6,000 on a lawyer, the not-for-profit leased a small space outside the Theater Subdistrict — outside the borough — in DUMBO. (The DCP declined to comment on this particular case.)
The Platinum ordeal raises a crucial question: Are we to entrust the vitality of a creative community, one needing not only financial support via programs like a Theater Subdistrict Fund, but space to function sustainably into the future, to real estate developers who are held to the agreement by nothing but their word?
“The last time I went [to see the Platinum units],” Rubin tells the Voice, she still saw the “game changer” potential for a small not-for-profit theater trying to establish itself in New York. But it also seemed, at that moment, further out of reach than ever: The building management was “storing heavy-duty machinery that was dripping oil on the floor.”