Theater District Will Get Taller, if Not Richer

August 6, 2006
By PATRICK McGEEHAN
Via NYTimes.com

The hottest thing on Broadway these days may be the air above some of its most famous theaters.

During the city’s real estate boom, theater owners have started capitalizing on a special zoning arrangement created eight years ago that lets them sell their unused rights to add to their buildings’ height. Developers can transfer these air rights to other sites in the theater district and construct taller buildings than would otherwise be allowed.

Two pending transfers of air rights promise an added benefit that was crucial to the original approval of that arrangement: As much as $1.4 million is supposed to be set aside to help the theater community, by attracting new patrons or underwriting serious drama.

But there’s a snag. Though two developers — who are buying the air rights for more than $20 million — are ready to hand over the special payments, the city government is not prepared to accept them. It never created the fund to hold the money or the council that is supposed to oversee it. As a result, it is not clear if the theater community will ever directly benefit from the windfall.

Others, meanwhile, are maneuvering to get the money. The Board of Education has raised its hand for the first payments from developers, most of which it would use to improve auditoriums in public schools, city officials said.

Jack Goldstein, who was working for Actors’ Equity Association, a union of actors and stagehands, in 1998, when the arrangement was set up, said diverting the money to schools would violate pledges made to bolster what was then a fragile theater economy.

“There was a promise that was made to the theater community and the public, and I think it should be kept, and I think it can be,” Mr. Goldstein said.

Neighborhood leaders in the vicinity of the theater district are also wary that the money may be sent elsewhere.

“Our community has a big proportion of working actors, so we want this to go to people who actually work in and support the theater,” said J. Lee Compton, the chairman of Manhattan Community Board 4, whose territory includes one of the theaters that is selling its unused development rights.

The long-running debate about how to spend this potential stream of revenue from developers illustrates how much the theater business and the New York City real estate market have changed since the late 1990’s.

Back then, theater owners and Broadway luminaries, including Stephen Sondheim and Tony Randall, campaigned for financial aid for an ailing industry. They feared that empty theaters and a paucity of new plays signaled worsening prospects for high-quality drama.

The city’s response was to change zoning rules in 1998, allowing the owners of 25 Broadway houses to transfer their air rights anywhere within a 34-block zone north of 40th Street between Avenue of the Americas and Eighth Avenue. (Normally, air rights can be transferred only to contiguous building sites.)

To transfer development rights from a theater to a distant site, the buyers were required to pay an extra $10 per square foot on top of the regular purchase price for the air rights. The money was to be administered by a new Theater Subdistrict Council, with 20 percent to be set aside for monitoring the physical condition of the theaters. The rest was to be used to benefit the theater community by subsidizing tickets to shows for poorer city residents or by offering loans or grants to producers of serious plays.

But until this year, no theater owner had taken advantage of the air-rights provision. In the past eight years, attendance has rebounded as the public appetite has grown for serious shows like “Doubt” and “The History Boys.” The Broadway Initiative, a theater-advocacy group Mr. Sondheim presided over, disbanded and the movement to find alternative sources of financing for plays faded out.

At the same time, demand increased for places to build apartment buildings close to Times Square. Few lots in the theater district can accommodate big buildings without a transfer of air rights. So, lately, developers have been knocking on the doors of the theater owners.

At the northeast corner of 46th Street and Eighth Avenue, a New Jersey-based builder, S.J.P. Residential, plans to erect a 42-story condominium tower on the former site of McHale’s pub. To do that, S.J.P. arranged to acquire about 140,000 square feet of air rights from two Broadway theaters, the Brooks Atkinson around the corner and the Al Hirschfeld, which is more than a block away.

The deal with the Brooks Atkinson, which is owned by the Nederlander Organization, did not fall under the special zoning rules created in 1998, but the pending purchase of the Hirschfeld’s air rights does. This week, the City Planning Commission is scheduled to vote to authorize the second of two transfers of air rights from the Hirschfeld, which is owned by Jujamcyn Theaters, to the McHale’s site.

If approved by the Planning Commission and then the City Council, the sales of the Hirschfeld’s air rights would yield about $580,000 for the Theater Subdistrict Fund. A third piece of the Hirschfeld’s air rights, along with a larger bundle of air rights from another Jujamcyn theater, the St. James, are being acquired by the developer of a site on 54th Street between Broadway and Eighth Avenue. Combined, the transactions would produce about $1.4 million for the theater fund.

“This is a unique transaction,” said Paul Libin, producing director of Jujamcyn. “They could have come and knocked on our door earlier, but there was no reason for them to do it.” But now, he added, “There’s a boom going on in New York, and I suppose that’s why people knocked on our door.”

After these sales, whose terms Mr. Libin declined to disclose, Jujamcyn would have no significant development rights left to sell, he said. The air rights for the company’s other theaters were sold before the 1998 zoning change took effect, he said.

“Selling the air rights is all about perpetuating the Broadway theater,” Mr. Libin said.

But, he added, “circumstances have changed so dramatically” that using money from developers to finance productions now “doesn’t make any sense at all.”

Alan Eisenberg, the executive director of Actors’ Equity, noted that the original promise made in 1998 could still be met by giving the developers’ payments to the Theater Development Fund, which sells discounted play tickets to attract a broader audience.

The City Planning Department’s staff, however, favors giving most of the money expected from the special transfers — more than $1.1 million — to two programs run by the city’s Board of Education, said Edith Hsu-Chen, deputy director in the department’s Manhattan office. One, known as Arts Space, makes grants to public schools to upgrade their performance facilities. Another aims to stage summer musical productions starring public high school students.

“One of the key purposes of the theater subdistrict zoning is to develop new audiences,” Ms. Hsu-Chen said. “What better way to accomplish this than to link kids directly to Broadway as active participants?”

The school programs are pet projects of Gerald Schoenfeld, chairman of the Shubert Organization, which owns or operates 17 Broadway theaters.

Still, Meile Rockefeller, co-chairwoman of the land-use committee of Manhattan Community Board 5, said the schools proposals were “fine as a short-term remedy for a problem that caught the city unprepared.” But, she added, “It’s not a long-term solution.”

Same-Sex Marriage Wins by Losing

By DAN SAVAGE

Seattle

THERE were community meetings in Seattle on Wednesday. Some of the couples who had sued to overturn Washington’s ban on same-sex marriage, a case they lost before the state’s Supreme Court earlier that day, were going to appear. Gay and straight elected officials who support “marriage equality” were going to make speeches. I probably should have been there too.

But I had a previous engagement.

The Seattle Mariners were playing the Toronto Blue Jays at Safeco Field. My 8-year-old son — adopted at birth by my boyfriend and me — loves the M’s almost as much as he hates the way a breaking news story can keep me late at work. He would never have forgiven me for skipping the game.

I didn’t feel too bad about missing the meetings. Washington’s high court rejected same-sex marriage for much the same reason the New York Court of Appeals did earlier this month. The speeches in Seattle would no doubt be similar to those made in New York, and I didn’t need to hear them again.

Basically, both courts found that marriage is like a box of Trix: It’s for kids.

In New York, the court ruled in effect that irresponsible heterosexuals often have children by accident — we gay couples, in contrast, cannot get drunk and adopt in one night — so the state can reserve marriage rights for heterosexuals in order to coerce them into taking care of their offspring. Without the promise of gift registries and rehearsal dinners, it seems, many more newborns in New York would be found in trash cans.

At least the New York court acknowledged that many same-sex couples have children. Washington’s judges went out of their way to make ours disappear, finding that “limiting marriage to opposite-sex couples furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents.” Children, the decision continues, “tend to thrive in families consisting of a father, mother and their biological children.’’

A concurring opinion gave the knife a few leisurely twists: due to the “binary biological nature of marriage,” it read, only opposite-sex couples are capable of “responsible child rearing.”

These stunning statements fly in the face of the evidence about gay and lesbian parents presented to the court. Similar evidence persuaded the high court in Arkansas to overturn that state’s ban on gay and lesbian foster parents.

What the New York and Washington opinions share — besides a willful disregard for equal protection clauses in both state Constitutions — is a heartless lack of concern for the rights of the hundreds of thousands of children being raised by same-sex couples.

Even if gay couples who adopt are more stable, as New York found, don’t their children need the security and protections that the court believes marriage affords children? And even if heterosexual sex is essential to the survival of the human race (a point I’m willing to concede), it’s hard to see how preventing gay couples from marrying increases heterosexual activity. (“Keep breeding, heterosexuals,” the Washington State Supreme Court in effect shouted, “To bed! To bed! To bed!”) Both courts have found that my son’s parents have no right to marry, but what of my son’s right to have married parents?

A perverse cruelty characterizes both decisions. The courts ruled, essentially, that making my child’s life less secure somehow makes the life of a child with straight parents more secure. Both courts found that making heterosexual couples stable requires keeping homosexual couples vulnerable. And the courts seemed to agree that heterosexuals can hardly be bothered to have children at all — or once they’ve had them, can hardly be bothered to care for them — unless marriage rights are reserved exclusively for heterosexuals. And the religious right accuses gays and lesbians of seeking “special rights.”

Even if you believe that marriage plays a special role in the lives of heterosexuals with children (another point I’m happy to concede), can it not play a similar role in the lives of homosexual couples, whether they’re parents or not? Marriage, after all, is not reserved for couples with children. (Perhaps it will be soon, if courts keep heading in this direction.)

When my widowed grandfather remarried in his 60’s, he wasn’t seeking to further the well-being of his children, who were grown and out of the house. He was seeking the security, companionship and legal rights that marriage provides. The survival of humankind was the furthest thing from his mind.

These defeats have demoralized supporters of gay marriage, but I see a silver lining. If heterosexual instability and the link between heterosexual sex and human reproduction are the best arguments opponents of same-sex marriage can muster, I can’t help but feel that our side must be winning. Insulting heterosexuals and discriminating against children with same-sex parents may score the other side a few runs, but these strategies won’t win the game.

So I’m confident that one day my son will live in a country that allows his parents to marry. His parents are already married, as far as he’s concerned, as my boyfriend and I tied the knot in Canada more than a year and a half ago. We recognize, even if the courts do not, that it’s in his best interest for us to be married.

And while Wednesday was a dark day, the M’s beat the Blue Jays 7 to 4, so it wasn’t a total loss.

Dan Savage is the editor of The Stranger, a Seattle newsweekly.

Copyright 2006 The New York Times Company