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The plaza at 325 Fifth Avenue is just one example of a privately owned public space, commonly known as a POPS, that has not been maintained according to the developer’s agreement with the city. These agreements allow developers to build larger towers and earn more revenue in exchange for providing public spaces.
In December, the Department of Buildings completed its three-year inspection cycle and found that about one in five of the properties violated the terms of their agreements.
The lack of compliance with the law has been a problem for years. The city’s inspectors have issued violations to half of the 392 buildings with such spaces since 2011, according to a Department of Buildings dataset.
The standard penalty for a violation is $5,000, which is a fraction of the value of the bonus space developers receive from the agreements. For example, the owners of 325 Fifth Avenue have been assessed a total of $54,000 in penalties since 2015. By contrast, the bonus floor area that the developers gained could be worth approximately $80 million if used for residential space, based on 2022 sales prices provided by Jonathan J. Miller, a New York City real estate appraiser.
Based on average prices of transactions from 2002 to 2020, the total bonus space that developers have gained has an estimated value of about $10 billion, said Richard J. Roddewig, who specializes in appraisals and real estate consulting and is a managing director at JLL Valuation & Advisory Services.
But in the past 12 years, building owners have cumulatively paid just over $1.4 million in penalties.
“Developers received something that was disproportionately valuable,” said Jerold S. Kayden, a lawyer and professor of urban planning and design at Harvard University and an advocate for keeping privately owned public spaces open to the public. “The financial value of the extra floor area was completely out of whack.”
The extensive network of 598 privately owned public spaces across 392 buildings makes up a significant portion of public space in the city. The cumulative footprint is about 3.8 million square feet, or roughly 10 percent of the area of Central Park. In comparison, the bonus space developers have gained in exchange amounts to about 20.7 million square feet.
In 2000, Mr. Kayden wrote the first comprehensive survey and analysis of New York’s privately owned public spaces, in collaboration with New York’s Department of City Planning and the Municipal Art Society of New York.
The Times obtained data from that analysis and additional records since 2000 through a Freedom of Information Law request. This detailed dataset shows how much bonus space developers received compared with the public space they built.
Mr. Kayden reviewed the data at the request of The Times and identified some of the properties that were granted the most bonus space.
Since 2000, the Department of City Planning has maintained records on these bonus space agreements, but there have been gaps in the record-keeping. A 2017 audit conducted by the city comptroller’s office found that the locations of some spaces were not tracked. In response to a request for comment about gaps in the data, the Department of Buildings said that the city has done “extensive interagency work” to expand this database. But in the data that the city provided to The Times, multiple records provided little to no information on the public spaces or the bonus space given to the developers.
The Department of City Planning said that such data is used by city inspectors to check whether building owners should be issued violations. Any errors in the record-keeping might lead to lapses in enforcement that undermine the zoning program.
Gale Brewer, a city council member who led the push to protect these public spaces on the Upper West Side for over a decade, agreed that while some are well-kept, many are not maintained as they should be.
“Developers have gotten a great deal,” Ms. Brewer said. “Somebody needs to hold them accountable.”
Larry Silverstein, a New York City real estate developer who has built three privately owned public spaces, defended the program, saying the public spaces provide pleasure to the occupants of the building and add value to the real estate.
“The program has given enormous amounts of good to the public,” Mr. Silverstein said.
Melissa Grace, a spokeswoman for the Department of City Planning, said that the zoning program has resulted in “hundreds of quality public open spaces” at no cost to the public.
There are a number of well-maintained and prominent spaces that exist because of this program, like Zuccotti Park, the site of Occupy Wall Street protests in lower Manhattan, and the David Rubenstein Atrium at Lincoln Center.
But at many of the buildings, city inspectors since 2011 have regularly found that the spaces were closed, like the plaza at 325 Fifth Avenue, or poorly maintained.
By denying access or neglecting to provide the required amenities, building owners could potentially save on operating and maintenance costs.
Sometimes, the spaces were illegally occupied by cafes, restaurants and other businesses. And in some cases, hostile architecture, like spikes on ledges, was retroactively added to the spaces, which critics have said discourages use and disproportionately targets people who are homeless. Times reporters visited over a hundred of these spaces and found similar instances of noncompliance.
Here are the 392 buildings with privately owned public spaces. Half of them have been issued violations over the past 12 years....
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