design beyond zoning: negotiating architectural form and

Original Article

Design beyond zoning: Negotiating architectural formand bulk restrictions at HL23

Per-Johan Dahl

Research Institute for Experimental Architecture, Bern, Switzerland.E-mail: [email protected]

Abstract This article uses Neil M. Denari’s HL23 condominium tower in West Chelsea, New York City, as thelens through which to focus on the architectural design pathway in discretionary reviews to negotiate archi-tectural form and bulk restrictions. The argument states that creative architectural forms can appropriate anunorthodox site configuration in accord with planning objectives and that review procedures are needed torecognize and evaluate such attempts. The objective of this article is, therefore, to elucidate the way in whichdesign in discretionary reviews can be used as a method to negotiate the complex relationships betweenarchitectural form and zoning constraints within an existing system. As the shape of HL23 evolved in response toa complicated constellation of site conditions and zoning amendments, relationships between architecturaldesign and urban planning process combine to frame case study research on the zoning background andauthorization procedure that issued design beyond zoning. Because hardened setback regulations dramaticallylimited the profitability ratio of the project, design was used to negotiate the complex relationships betweenarchitectural form and bulk restrictions. When elucidating the design pathway pursued to realize the building,flexibilities within zoning are unlocked. This article has been developed accordingly: It examines HL23’s com-plicated site; it contextualizes the zoning amendments that reduced the project’s profitability ratio; it explicatesthe shape of bulk restrictions; it analyzes the digression categories; it synthesizes form and digression through ananalytical study of the design pathway; it demonstrates that design in discretionary reviews can be used as amethod to negotiate the complex relationships between architectural form and zoning constraints; and it dis-cusses flexibilities in zoning. Data for this article were collected through literature research, direct observation,archival research, drawing analysis, and interviews. The findings have bearing on research and practice inarchitecture, urban design, urban planning, and real estate.URBAN DESIGN International (2017) 22, 13–27. doi:10.1057/s41289-016-0033-5;published online 15 December 2016

Keywords: architectural design; zoning envelope; HL23; discretionary review; West Chelsea

Introduction

The first zoning ordinance in the United Stateswas adopted in 1916 in New York City (Willis,1986). Invented by Edward M. Bassett and enactedby the Board of Estimate, the zoning ordinancedeployed the use, coverage, and bulk restrictionsof a building or a neighborhood in order toregulate its form and function (Bassett, 1932).While these restrictions were formulated as uni-versal principles for tackling issues of health,safety, morals, and welfare in urban developmentand renewal, they overlooked the measures forhow to also accommodate contextual deviations

and unexpected circumstances (Babcock, 1966;Revell, 2003).The first revision of New York’s 1916 zoning

ordinance, adopted in 1961, was, to a considerabledegree, basedon the call for greater flexibility inuse,coverage, and bulk restrictions (Gallion and Eisner,1986; Strickland, 1993). By introducing a number ofprovisions, such as the floor area ratio, the plazabonus, and the open space ratio, the New York CityDepartment of City Planning (NYCDCP) set out torectify the weight of amendments (Barnett, 1982).As the architectural engineering firm VoorheesWalker Smith and Smith (1958) states in its consul-tant’s report, the 1961 revisions rescued the

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architect from stereotyped designs enforced byregulations that rigidly restricted architectural andurban form, yet remained ineffective in dealingwith the planning objectives. New zoning tech-niques were added later in the 1960s and into the1970s, which created a complex configuration ofsub-zones (Barnett, 1974; Loukaitou-Sideris andBanerjee, 1998). Yet the need for review methodsbeyond as-of-right points to a continuous call forupdated administration (Babcock and Larsen, 1990;Kayden, 2000; Lehnerer, 2009).Because of the intensified critique of zoning,

various architectural theorists explored notions oftypology and urban morphology as a means tobanish the separation of land-uses, which furtheredthe aims of democratizing the decision-makingprocess through community engagement (Vidler,1977; Moneo, 1978; Culot and Krier, 1978; Rossi,1982; Krier, 1984, 1987). Associated with post-modernism’s historicist urbanism, the theoreticalimpact of typologyandurbanmorphologydeclinedduring the 1980s, while the impact on practicecontinued via the implementation of form-basedcodes (FBC) (Baird, 2004; Scheer, 2008). FBC wasprimarily advocated by TND New Urbanism,which sought to battle American sprawl throughzoning reform (Duany and Plater-Zyberk, 1991;Kelbaugh, 2002). Zoning reform was further prob-lematized by various scholars, who asked whetherzoning should be reviewed through rule or discre-tion, and if zoning should be prescriptive orperformative (Kayden, 2011; Baer, 2011). The plan-ning scholar, Emily Talen (2012), channeled themultiple approaches to zoning reform by establish-ing two directions, which she said are ‘‘eitherpushing toward greater flexibility, or pushingtoward greater predictability’’ (Talen, 2012,p. 175). Advocating greater predictability, sheopposed the various levels of discretion oftenimplicit in flexible zoning. Discretion in zoningreview has been widely debated. Some scholarsargue that discretionary actions are accompaniedby corruption, reduced certainty, increased costs,and extended approval processes (Blaesser, 1994;Ben-Joseph, 2005). Others argue that discretionaryactions are accompanied by qualities that make forwell-designed urban environments, collaboariveinventivness, and increased authority for the plan-ner in development processes (Kwartler, 1989;Kayden, 2011). Yet another groupof scholars arguesthat discretionary actions are not necessarily morecompatible than other review procedures becausetheir net effect is rather small (Nasar and Grannis,1999; Mandelker, 2010).

While this article builds upon previous assess-ments of the relationship between discretion andflexibility, it offers new knowledge on architec-tural design in discretionary reviews. Zoningdetermines the maximum boundaries for thedevelopment of architectural form on a buildingsite. Drawing on Lewis et al (1998) interest in theparadoxical coexistence of rules and disorder, thisarticle argues that creative architectural forms canappropriate an unorthodox site configuration inaccord with planning objectives, and that reviewprocedures are needed to recognize and evaluatesuch attempts. While zoning in institutional pro-cesses establishes the boundaries of accept-able practice, architectural design in discretionaryreviews may point to development opportunitiesin lieu of comprehensive legislation. The objectiveof this article is therefore to elucidate the way inwhich design in discretionary reviews can be usedas a method to negotiate the complex relationshipsbetween architectural form and zoning constraintswithin an existing system. As previous scholarshiphas focused on negotiated use and coveragerestrictions (Dahl, 2014; Graham and Hurst,1987), this article will take bulk restrictions as theagent of zoning constraints.One architect who recently used design in

discretionary reviews as a method to negotiatethe complex relationships between architecturalform and bulk restrictions is Neil M. Denari. Withhis HL23 condominium tower in West Chelsea,New York City, Denari designed a building formthat differed from surrounding buildings byjutting over the High Line Park (Figure 1). Becausehardened setback regulations dramatically limitedthe profitability ratio of the HL23 project site,Denari explored a design pathway through theadministrative procedures of zoning, whichbypassed the bulk restrictions without compro-mising the planning objectives. Since HL23 wasapproved by the City Planning Commission Cityof New York (CPCCNY) on 24 May 2006 withouta zoning amendment, we may expect Denari’sdesign pathway to hold information about ameans to negotiate the relationships betweenarchitectural form and bulk restrictions.The story of HL23 entails an intricate intersec-

tion between architecture, real estate, and urbanplanning, all of which must be examined if wewant to understand the relationship between thebuilding’s form and the bulk restrictions. Whendesign is deployed to negotiate between architec-tural form and bulk restrictions, the multiple kindsof expertise involved in the discretionary review

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combine to evaluate the proposition. Yet, aszoning reviews obey planning objectives, thenegotiation must navigate the complex and oftendisparate configuration of practices and policiesimplicit in planning administration. The researchquestion for this article is therefore: How canmultiple types of expertise coalesce in discre-tionary review to coordinate creative architecturalsolutions with the administrative routines ofzoning? In the case of HL23, it was primarily areal estate incentive that required an architecturalsolution beyond as-of-right. While the accuracy ofnegotiation may be demonstrated by expertise, thelegitimacy of the reached agreements must bemeasured in accord with the collective aspects ofcity building. The sub-question for this article istherefore: What methods can be used to verify thatthe reached agreement in discretionary reviewreckons the public opinion and the planningobjectives?To answer these questions, this article has been

organized as follows: it examines HL23’s compli-cated site; it contextualizes the zoning amend-ments that reduced HL23’s profitability ratio; itexplicates the shape of bulk restrictions; it analyzesthe digression categories; it synthesizes form anddigression through an analytical study of thedesign pathway; it demonstrates that design indiscretionary reviews can be used as a method tonegotiate the complex relationships between archi-tectural form and zoning constraints; and it

discusses flexibility in zoning. This article waspursued through case study research; data wascollected through literary research, direct observa-tion, archival research, drawing analysis, andinterviews; and the findings have bearing onresearch and practice in architecture, urban design,city planning, and real estate.

Three players and one complicated projectsite

HL23 is a 14-story condominium tower with an artgallery on the ground floor and communityamenities on the second (Figure 2). It is locatedat the intersection of West 23rd Street and theHigh Line in the West Chelsea district of NewYork City. The architect behind HL23 is Neil M.Denari. He was commissioned for the design in2004. Construction started in 2008, and the build-ing was completed 2011. The developer behindHL23 is Alf Naman. Working in the real estatesector since the early 1990s, Naman has expandedon a business model ‘‘of creating the best qualityarchitecture in the hope of attracting the uniquebuyer capable of paying for it’’ (Seward, 2008).Naman had paid attention to the promising

features of West Chelsea as early as the late 1990s,whichdespite some turbulenceduring the last of therecession has been proven rather lucrative, withproperty values skyrocketing since 2007 (Figure 3).

Figure 1: HL23 and High Line Park, New York, NY, 2011. Photographer: The author.

Negotiating architectural form and bulk restrictions at HL23

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When Naman gained control of the project site forHL23 in 2004, however, he was not sure what to dowith it. Located in the heart of a derelict warehousedistrict, the development potential appeared to beseverely limited. The project site encompassed amidblock through-lot traversed by the High Line,with 75-foot frontage (23 meters) on West 23rdStreet, and50-foot frontage (15meters) onWest 24thStreet. Comprisedof three separate lots, itmeasureda total of 12,344 square feet (1147 square meters).Despite this considerable size, 56 per cent of theprofitable land was concealed by the elevatedrailroad bed, including most of theWest 24th Streetfrontage, which made real estate developmentproblematic.The obstacle, however, was not just the compli-

cated project site, but also the overlay of twozoning amendments. Together, these determinedthe building’s legal form, and thus drasticallyreduced the site’s development potential. Willis(1995) observes that development cycles haveaffected density and spatial distribution in Man-hattan throughout the twentieth century. Whiledevelopment cycles adapt to shifting socioeco-nomic forces, density and spatial distribution arechanneled through real estate incentives and reg-ulated through zoning. Whereas shifting socioeco-nomic forces may be difficult to predict, zoning isexplicit. Deployed in New York City as a key toolfor carrying out planning policy—a contestation

that NYCDCP (2014) states well—zoning mediatesbetween the individual interests of real estateindustry and the public interests of city gover-nances. While the developer and the city plannerare the administrative players in such policyprocedure, the architect provides the transitionfrom administration to form. The following reviewof the policy procedures for the Chelsea neighbor-hood will clarify the drastically reduced develop-ment potential for the HL23 project site, whichframes a context for the evaluation of Denari’sdesign pathway.

One development cycle and two zoningamendments

Chelsea is a neighborhood on the west side ofManhattan. Located close to the Hudson River, amajor part of the neighborhood evolved as a tradeand light manufacturing district in the early twen-tieth century. The businesses flourished during the1920s and 1930s, which led to the construction ofthe elevated High Line between 1929 and 1934, inorder to separate freight trains and street leveltraffic. Following the economic restructuring pro-cesses of post-World War II America, the busi-nesses in Chelsea declined. When the High Linewas closed to traffic in 1980, the business scenetransformed into ‘‘a cultural wilderness of trucking

Figure 2: HL23. Elevations, including proposal for development underneath the High Line Park. Courtesy of NMDA.

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companies, drug dealers, and strip bars’’ (Ingrassia,2001). The relocation of trade and light manufac-turing businesses, however, resulted in a signifi-cant stock of abandoned warehouses, whichattracted new businesses from the art market.Relocating from the gentrified SoHo, the art marketturned Chelsea’s abandoned warehouses into stu-dios and commercial art galleries (Sicha, 2003).Following the opening of Dia:Chelsea in 1987, thenumber of commercial art galleries in Chelseaincreased from 12 in 1995 to about 250 by 2004(Molotch and Treskon, 2009). Literature researchand interviews pursued by the author combine toverify that the relocated art market catalyzed a new

development cycle in Chelsea. As a result, newlegislation was needed to balance the often-con-tradictory interests of real estate development andhistoric preservation.The resolution ‘‘The Chelsea Plan: A Contextual

Zoning Proposal to Create Housing Opportuni-ties’’ was approved by the City Council on 9September 1999, and the amendment introduced aspecial zoning district for major areas of Chelsea.The contextual zoning technique complied withplanning objectives by acknowledging develop-ment pressure while still controlling residentialdensity and preserving neighborhood character(Berg, 2007). For the western part of the

Figure 3: The property value of 515 West 23 Street, New York, NY, 1990–2010. Diagram by the author.



neighborhood, the amendment reinforced thehistoric character of West 23rd Street through thecreation of the West 23rd Street Corridor. Aninterview with Sellke and Ramnarine (2011) ofNYCDCP confirms that the creation of the West23rd Street Corridor served to replace single-usezoning with a combination of mixed manufactur-ing and residential uses. The map of zoningdemonstrates that the blocks with West 23rdStreet frontage were changed from M-district toM1-5/R9A (NYCDCP, 2005). The adopted bulkrestrictions reveal the ambition to allow tallerbuildings with streetwalls of 102 feet (31 meters),and building heights of 145 feet (44 meters)(CPCCNY, 1999). The market response was imme-diate; archival research done by the author at theReal Estate Board of New York, for example,shows that the market value of lot 27 on block 695,which is 515 West 23rd Street, increased from$623,000 in 1998 to $764,000 in 1999.A second initiative was formed in 1999 to catalyze

land-use change and increase property value inChelsea. Drawing on former Chelsea resident andactivist PeterObletz’s efforts to oppose demolition ofthe outmoded railway viaduct known as the HighLine, Joshua David and Robert Hammond formal-ized the idea of historical preservation through thefounding of the non-profit group, ‘‘Friends of theHighLine’’. Archival research pursued by the authorshows that the High Line was neglected in the 1999amendment, which suggests that the idea remainedmore of a vision than a project. Support for theproject improved in 2002, when a study done by theFriends of the High Line showed that new taxrevenues created by the public space were antici-pated to be greater than the costs of construction(Amateau, 2014). The international design competi-tion ‘‘Designing the High Line’’, launched in July2003, attracted 720 teams from 36 countries. Thewinning proposal by Field Operations and DillerScofidio + Renfro was announced in the New YorkTimes on 12 August 2004 (Ouroussoff, 2004). Thesuccessful fundraising combined with the interna-tional design competition mobilized public support.In 2004, with Michael R. Bloomberg as the newmayor of New York City, the city governmentcommitted $50 million to establish the proposedpark (Amateau, 2014).With support from both the public and the

government, and with a financial plan that notonly proved the project to be economically self-sufficient, but also profitable, the idea of a HighLine Park went from vision to project. The increasein West Chelsea property values between 1999 and

2004 goes hand-in-hand with the improved oddsof realization. Archival research done by theauthor at the Real Estate Board of New York, forexample, demonstrates that the market value forthe forthcoming HL23 property increased from$764,000 in 1999 to $951,000 in 2003. Standingbefore the creation of a new landmark, theNYCDCP was urged to overlook the regulationsof Chelsea once again. During the 5 years thatpassed since the 1999 amendment was enacted,the area had been established as the prime galleryscene of New York. Following the art market, newreal estate and retail businesses were established.New legislation was needed to guide developmentinterests and to secure the open space character ofthe forthcoming High Line Park.New legislationwas approvedby theCityCouncil

on 23 June 2005 through the creation of the SpecialWest Chelsea Distinct amendment. Adhering to theland-use changes introduced 6 years earlier with theWest 23rd Street Corridor, the amendment con-cerned a geographically limited area, which estab-lished West Chelsea as a new Manhattan district(CPCCNY, 2005). The Special West Chelsea Distinctamendment is a comprehensive rezoning of WestChelsea. The City Planning Commission states thatthe resolution contained provisions intended toguide historic preservation, to stimulate develop-ment of affordable housing, and to direct transitionto the eastbound Chelsea Historic District and to thenorthbound Hudson Yards (Ibid.). Specifically rele-vant for the HL23 project site was the intent ‘‘toensure that the formanduse of newbuildings relatesto the enhanced neighborhood character and theHighLineopen space’’ (Ibid.). TheNYCDCPdrafted,therefore, new restrictions to ‘‘encourage preserva-tion of light and air around the High Line’’ (Ibid.).Committed to maximize a sense of openness, a100-foot wide corridor was outlined, which encap-sulated the High Line from south to north and thusdissected the West Chelsea district. The demarcatedcorridor was assigned hardened bulk restrictionswith new setback regulations and easements tosafeguard maintenance. Because of the hardship ofamended regulation, the West Chelsea rezoningproposal contained the provision to allow the trans-fer of development rights fromHigh Line propertiesto selected sites (Figure 4). Dubbed the High LineTransfer Corridor (HLTC) in the 2005 amendment,the provision required all buildings with parkfrontage to step back 15 feet (5 m) and more fromthe High Line bed (Figure 5). Hence the open spacecharacter was preserved through new bulkrestrictions.

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The shape of bulk restrictions

The common real estate objective is to developmaximum permitted floor area. Zoning may,therefore, include the floor area ratio (FAR), whichcontrols the ratio of a building’s gross floor area to

the size of the project site. The HL23 project sitewas regulated by two different FAR. The northernportion had a maximum FAR of 6.02, while thesouthern portion had a maximum FAR of 7.52.The two FAR combined to determine that theproject site’s maximum permitted residential floor

Figure 4: Section of the High Line Transfer Corridor. The High Line used with permission of the New York City Department of CityPlanning. All rights reserved.

Figure 5: Rendering of setback requirements for the High Line Transfer Corridor. High Line Adjacency Controls: West Side of the HighLine used with permission of the New York City Department of City Planning. All rights reserved.



area was 85,419 square feet (7936 m2) (PhilipHabib & Associates, 2006, p. 6).Since 56 per cent of the project site was

concealed by the High Line, only a portion wassuitable for residential development. While themaximum building footprint was determined bythe distribution of the elevated structure, thebuilding mass was constricted by the two zoningamendments previously outlined. The West 23rdStreet Corridor regulated the south lot line byimposing a base height restriction of 102 feet (31m), a building height restriction of 145 feet (44 m),and a rear yard setback of 30 feet (9 m). Because ofthe proximity to the High Line, the HLTC appliedto the developable portion of the project site and,thus, required any building proposal to step back15 feet (5 m) or more from the former railroad bed.If the High Line presence set the datum for amaximum building footprint of 25 9 70 feet(8 9 21 m), the setback regulations of HLTCrestricted the bulk by limiting building mass.The combination of a limited building footprint

and bulk restrictions drastically reduced the devel-opable floor area. As more than half of the projectsite was barred from development, ‘‘built structurewould not exceed the maximum permitted floorarea ratio’’ (Ibid.; A-2). It was hence not the FAR butthe bulk restrictions that controlled the maximumdevelopable floor area of the HL23 project site.Naman required therefore that architecture had toadd floor area to the as-of-right, and he told Denarifrom the start to negotiate the building mass and,thus, to make the project bigger. ‘‘You tell me howfar you think the rules can be broken,’’ Denari (2010)

interprets Naman arguing. ‘‘And if you can breakthe rules…and go through city planning andfigure out the reasons why this building should beaccepted [because] zoning opposes that kind ofbuilding.’’ To succeed at such a mission, the ratherabstract measures of height and setback regulationswould have to be expressed through architecturalform,which can be accomplishedwith assistance bythe zoning envelope.The zoning envelope describes a formula in

which height and setback regulations combine tooutline the maximum allowable construction (Fig-ure 6). Invented by Bassett and introduced as anintegral part of the seminal ordinance of 1916, thepurpose of the zoning envelope was to assist useseparation by measuring the ethical standards that,through reform, safeguarded ‘‘access to light andair to the street itself’’ (Bassett, 1932, p. 10). Tocreate the zoning envelope, Bassett drew from theshape of Manhattan’s grid and turned the propertyoutline and the street width into two fixed vari-ables. With a perpendicular projection of the plotline, he created a third variable, which was the basewall. With his orthogonal triplet of lines, Bassettconsolidated a three-dimensional formula, whichwas interlocked through the principles of Euclid’sgrid surface, hence dubbed the zoning envelope.The zoning envelopes that covered the surface of

Manhattan after 1916 established a new urbanlandscape. Like agglomerations of invisible struc-tures, they delineated immaterial volumes to befilled up with architecture. Hugh Ferriss demon-strated that infinite variations of architectural formcan be produced within the zoning envelope. The

Figure 6: The zoning envelope by Edward M. Bassett. Courtesy of Carol Willis.

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problem arises, as described in this article, when thearchitect wants to respond to site-specific circum-stances by investigating solutions beyond the zon-ing envelope.The zoning envelope provides a shape for bulk

restrictions. This shape can be elaborated througheither vertical or horizontal modifications. Verticalmodifications imply design beyond the heightregulations; horizontal modifications imply designbeyond the setback regulations. For Denari, verticalmodificationwas less favorable because theChelseacommunity had repeatedly opposed all attempts tobypass height regulations (Denari, 2010; Sellke andRamnarine, 2011). As exceptions to the rules inNewYork City will be granted only after public noticeand hearing, any attempt to circumvent heightregulations in theWestChelseadistrict involved therisk of running afoul of public opinion. The otheralternative—to elaborate the zoning envelopethrough horizontal modifications—is less commonbecause it suggests the cantilever, a structuralconcept that tends to increase construction costs.The developer verifies that the increased costs areanticipated to be covered by the revenue providedby the extra floor area, thus leading to the accep-tance of the cantilever as a concept for the shaping ofbuilding mass at HL23 (Khan, 2010).It can be argued that the cantilever provides

structural guidance for the addition of floor area tothe as-of-right without expanding the buildingfootprint ormodifying the height regulations. Thus,the cantilever will add floor area either by imping-ing upon the neighboring property or by impingingupon the public space. For an infill project in a denseurban setting, such asHL23,most zoning envelopeshave already been filled up with architecture, thusthe interference of public space is the most feasiblesolution. The HL23 project site fronts two publicspaces—West 23rd Street and the HLTC. Whileboth require the granting of exceptions to thezoning envelope, any cantilever over West 23rdStreet would additionally require the granting ofexceptions to the building codes, because such asolution would include traffic issues (Sellke andRamnarine, 2011). Hence, the design decision in thecase of HL23 to develop a building form thatcantilevers over the High Line Park.

The digression categories

The establishment of urban planning regulationsin the U.S. goes hand-in-hand with the develop-ment of legal procedures for the granting of

exceptions to the rules. In New York City, theexceptions to the rules have been categorized intothe variance and the waiver. When architecturalsolutions are hampered by zoning, and exceptionsto the rules are required to overcome divergencebetween building mass and zoning envelope, theefficiency of review procedure is measured by thelevel of autonomy in the urban planning process.This argument can be evaluated by comparing thereview procedure of the variance with that of thewaiver.Choay (1997) has demonstrated that urban plan-

ning is a disciplinary practice with certain levels ofpolitical and public influence. For the reviewprocedure, the level of political influence can bemeasured by the connotation of public bodies andthus by their impact on autonomous decision-making. There are, however, significant differencesin the degree of political influence necessary todetect. The variance applies to the hardship ofproperty and is reviewed by the Board of Standardsand Appeals (BSA), which is an independent unitformed to operate in parallel with the CPCCNY togrant exceptions to zoning. Sellke and Ramnarine(2011) state in an interview that the BSA requiresdifferent development scenarios for as-of-right andpublic hearings at several levels of governance,which tends to delay decision-making processes.Hence, the review and granting of the variance canbe described as a political process with limitedinvolvement from planning expertise. The waiver,on the other hand, applies to land use and isreviewed through the ULURP process, which canbe adjusted by the CPCCNY in consideration of theestimated impact that the exception may have onsurrounding areas. A waiver with major impactrequires a special permit and a full ULURP process.A waiver with limited impact requires an autho-rization and a partial ULURP process. A waiverwithminimal impact requires only a certificate fromthe Chairperson of the CPCCNY (Ibid.). In otherwords, if an applicant files a waiver for a deviationwith limited impact on surrounding areas, theULURP process obligates the CPCCNY to listen tothe community board. It does not, however, requirethem to follow the board’s recommendations(Ibid.). Because of this partial commitment to publicbodies, the review and granting of a waiver withlimited impact is primarily managed by planningexpertise. It can, therefore, be argued that thewaiver is a semi-autonomous construct amenableto adjustment in accordance with the estimatedimpact that the exception to the rule may have onsurrounding areas.



This evaluation demonstrates that the waiver isreviewed with greater autonomy than the variancebecause the review of the variance requires agreater level of political influence. When excep-tions to the rules are reviewed in autonomy, theexpert opinions of architects and city plannersovershadow the politics of stakeholders and leg-islators, particularly in discretionary reviewswhere hypotheses and arguments can be pro-cessed with greater precision. Design in discre-tionary reviews may therefore become a methodof negotiation through the waiver, but not throughthe variance.

Elucidating the design pathway

Any building form that complies with the zoningenvelope is approved as-of-right. The as-of-rightvolume measures the influx of light and air todetermine bulk distribution in concurrence withthe planning objectives. As Denari’s commissionrequired him to develop building mass thatexceeded the as-of-right volume, he knew that hehad to investigate a solution beyond the zoningenvelope (Denari Architects, 2013). As previouslyconcluded, the waiver supports negotiation. Asthe waiver encompasses a formal exception to theas-of-right volume, it must, as NYCDCP (2011)explains, demonstrate that the proposed buildingwill not ‘‘adversely affect adjacent zoning lots byunduly restricting access to light and air tosurrounding streets and properties.’’ Hence, thewaiver must be judged from a formal point ofreference, which is the as-of-right volume.The measures for the as-of-right volume derive

from the zoning envelope, while the measures forthe design concept derive from the architect’sdesign intent and sensibility toward commissionrequirements and site configurations. The rationalefor cantaleivering over the High Line Park, aspreviously discussed, was elaborated throughdesign to become a strategy for creating visualconnections and aesthetic references between thebuilding and the railroad structure (Khan, 2010).The design concept for HL23 was developedaccordingly and given a geometrical configurationthat demonstrated certain levels of adjustability.Analysis made by the author verifies that sixwaivers were detected, which requested modifica-tions of the rear setback limitation, the High Linefrontage setback limitation, the air space encroach-ment, the street setback limitations, the base height,and the height limitation. The architect visualized

each waiver with section and axonometric draw-ings, and quantified the waivers through data onsize and form. The drawings additionally describedthe potential impact on the High Line’s open space,with one section drawing explicating the visualimpact on a 200-foot distance from the HL23 edifice(Figure 7). Explained through the architecturaldrawing, the waivers were reconceptualized fromzoning modification to building element.When explained as six building elements, the

size and form of the waivers were feasible forevaluation in discretionary reviews. The negotia-tion process, which compared the arguments ofarchitect and developer to the arguments of urbandesign and planning experts, judged the intersec-tion between urban impact and design quality.Sellke and Ramnarine (2011) confirm that anydeveloper who seeks to modify the as-of-rightvolume through discretionary reviews mustdemonstrate that the values of light and air complywith planning objectives, and that the design andvisual appearance of the building enhance thesurrounding areas. Thus for HL23, the intersectionbetween quantitative data and aesthetic judgementwas negotiated through Denari’s adjustable form,which provided the means to consolidate thedesign concept with a certain degree of sensibilitytowards the planning objectives (Denari, 2011).Incrementally adjusting the size of the waivers,Denari added floor area to the as-of-right bycalibrating the distribution of bulk in concurrencewith its impact on the surrounding area. Con-stantly analyzing and communicating the conse-quences of his design decisions through shadowdiagrams, illustrative renderings, volumetric stud-ies, and section drawings, he responded to thearguments from urban design and planningexperts (Sellke and Ramnarine, 2011). By usinghis waivers to measure the influx of light and air,Denari fine-tuned the relationship between build-ing mass and the zoning envelope to arrive at abuilding form that was predicted to have limitedimpact on surrounding areas and, hence, onlyrequire a partial ULURP process. Through thisnegotiation, he added 54.7 per cent more residen-tial floor area to the as-of-right (Figure 8).As previously outlined, it was the bulk restric-

tions and not the FAR that controlled the maxi-mum developable floor area of HL23. Denari’sbuilding form contained a gross floor area of55,890 square feet (5192 square meters) for theentire project, which was below the maximumpermitted FAR. While adding floor area to the as-of-right, Naman also deployed the provision in the

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HLTC and ‘‘transferred 34,520 [square feet (3207m2)] of floor area from the project site to areceiving site’’ (Philip Habib & Associates, 2006,

p. 6). The transfer of development rights at HL23complies with the planning objectives, while theadded floor area exemplifies a major risk implicit

Figure 7: HL23. Diagram of increased height limitation. Courtesy of NMDA.

Figure 8: HL23. Diagram of the resultant building mass. Courtesy of NMDA.



in discretionary review processes, which is whennegotiations between private stakeholders andlocal government are pursued on speculativegrounds and have a negative impact on surround-ing areas. We have seen, for example, that RobertMoses commissioned construction conglomeratesfor infrastructure projects that never fulfilled theirpromises, and that the administration of Mayor EdKoch approved mammoth developments such asPhilip Johnson’s AT&T Building and EdwardBarnes’s IBM Building, despite their negativeimpact on light and air (Caro, 1974; Babcock andLarsen, 1990). It is thus imperative that theadministration of discretionary reviews includeroutines that verify the accountability and thelegitimacy of reached agreement.The zoning resolution reflects, according to

Norman Marcus (1993), ‘‘an integrated visioncomposed of many disparate elements, allgrounded in empirical observations and data.’’The planning objectives are conveyed through theintegrated vision to serve the public interest. Asthe statements and arguments depending onempirical observations and data are referred to aposteriori, they tend to conceive the city as an endstate object, rather than an ever-evolving organ-ism. The public opinion, on the other hand, tendsto be more responsive than conventional planningpractice to the rapid pace of change that charac-terizes urban development and transformation.The public opinion, however, is difficult to testbecause empirical methods cannot be used to test apriori hypotheses. As the collective aspects of citybuilding include both the public interest andpublic opinion, the aggregate of civic attitudesneeds to be balanced by up-to-date empiricalobservations and data, which in discretionaryreviews can show that the proposed modificationsare accountable to the planning objectives. In NewYork City, such undertaking is rendered throughthe City Environmental Quality Review (CEQR),which is an accounting practice that serves toidentify adverse environmental effects, and pro-poses methods for eliminating or diminishingsignificant impact. The CEQR involves a numberof steps, such as the requirements that the leadagency hold several public reviews, and that theapplicant file an Environmental Assessment State-ment (EAS). Thus, while the NYCDCP is obligedto brief the community on the proposed modifi-cations, the developer is similarly obliged to assessthe environmental impact of suggested actionthrough a comprehensive analysis of the buildingin the urban context. The EAS for HL23 was

prepared by Philip Habib & Associates and filedon 16 February 2006. The document deploys up-to-date empirical data on light and air, as well ason construction and maintenance, to demonstratetwo development scenarios: the impact of pro-posed action, and the future without the proposedaction. A comparison between the two scenariosupheld, on scientific grounds, that the shape ofHL23 complied with planning objectives.The EAS comprised, additionally, the formal

application for authorization of the waivers. Tolegitimize the granting of a building permit, thelead agency’s judgement must be disseminatedthrough the document that verifies guidelines forhow to pursue urban development in accord withplanning objectives, which is the zoning resolu-tion. Hence, to facilitate lawful approval, thefollowing code, with the section number 98–424,was included in the zoning resolution:

For #zoning lots# located entirely within 75feet [23 meters] of the west side of the #HighLine#, the City Planning Commission mayauthorize the modification of height andsetback regulations set forth in Sec-tions 98–40 and 98–50, inclusive, and thetransparency requirements set forth in Sec-tions 98–141 and 98–54. The Commissionshall find that such modification will resultin a better distribution of #bulk# on the#zoning lot# and will not adversely affectaccess to light and air for surrounding publicareas. The Commission may prescribe appro-priate conditions and safeguards to enhancethe character of the surrounding area.

To avoid creating a precedent for subsequentdevelopment along the HLTC, the code ‘‘was verynarrowly written’’ so as to be applicable solely tothe HL23 project site (Sellke and Ramnarine, 2011).Formulated to justify all six requested waivers, itsummoned up the discretionary review processand ratified the reached agreement, all withoutrequiring a zoning amendment. Denari’s designbeyond zoning was thus legitimized through theimplementation of a new zoning code.

Discussion and Conclusions

This article has demonstrated that design indiscretionary reviews can be used as a method tonegotiate the complex relationships between archi-tectural form and zoning constraints. As zoning isa key tool for carrying out planning policy in New

Dahl


York City and elsewhere, various decisions andpropositions regarding urban development andrenewal are directly or indirectly associated withzoning. While the city planner uses zoning tomediate between the interests of the developer andthat of the public, this study has demonstratedthat the architect uses design to render thetransition from administration to form. This tran-sition may conform to the universal principles ofzoning, or it may transgress conventional planningpractice and thus suggest new prospects for thewriting of planning policy. Whereas this articlehas elucidated an architectural design pathway inwhich multiple experts coalesce in discretionaryreview to negotiate architectural form and bulkrestrictions on a complicated project site, it opensup a supplementary area of research on designaptitudes in the context of planning policy.This article builds upon previous assessments of

the relationship between discretion and flexibility(Talen, 2012). While Mandelker (2010) discussesflexibility through differentiation in design stan-dards, this article adds new scholarship on flexi-bility in zoning by demonstrating that creativearchitectural form can unlock flexibility within anexisting system. New York City’s zoning plan isgrounded in empirical data, composed of absoluterules. However, while the rules are fixed, theadministration of these rules entails differentlevels of governance in which the intersectionbetween praxis and policy unfold opportunitiesfor flexibility. We have seen that the variance andthe waiver are reviewed with different degree ofpolitical influence, and that such differencesprovide opportunities for expert opinion in theevaluation process. The case of HL23 demon-strates, therefore, that an architectural designstrategy exercising the waiver in New York Citypetition policy to render discretion in zoningreview, which brings architecture and urbandesign experts together to negotiate a buildingform on a particular project site, and to evaluatesuch negotiation through qualitative references tothe planning objectives. We can, therefore, con-clude that architectural design in discretionaryreviews can be used as a method to explorespecific variations within the flexibility that thesystem allows. Recognizing Mandelker’s differen-tiation between indeterminate standards and fixedstandards, this article draws on Lewis et al (1998)scholarship to postulate a supplementary positionon flexibility in zoning; a position that discards theinsertion of foreign agents into the system andrenders, instead, flexibility as an outcome of

creative intervention in the very structures of thesystem itself. Pointing to discretion as the commongrounds for such flexibility in zoning, this articledemonstrates that the reconceptualization of thewaiver, from zoning modification to buildingelement, provides a medium for negotiation. Asa building element suggests geometry and size, itleaves the abstract realm of zoning and becomes atangible component for negotiation: the geome-tries of building element yield aesthetic judg-ments, while the sizes of building element providequantitative data for evaluation.FAR is the key measure for development yield

and for urban density control (Uytenhaak, 2008).The FAR limits were introduced to New York Citywith the 1961 zoning revision, which aimed toreplace ‘‘the more visual height and setback bulkcontrols that had been set out in the 1916ordinance’’ (Marcus, 1993, p. 63). As height andsetback regulations remained after 1961, the FARlimits became a substituting principle to commonbulk controls rather than a replacement. We haveseen that the HL23 project site was regulated byboth FAR limits and bulk controls, and that thecomplex of site conditions and zoning amend-ments facilitated the paradox of adding floor areato the as-of-right while transferring undevelopedfloor area to a receiving site. While the FAR hadminor impact on the design and development ofHL23, this article opens up a field of researchwhereby critical assessments of the measures andthe evaluations of urban density at complicatedproject sites may stipulate new relationshipsbetween the commercial aspects of real estateand the collective aspects of city building.The zoning resolution serves the public interest

by assessing the urban condition. However, asenvironmental impacts from local and globalprocesses transform cities and their surroundingsinstantaneously, the recommendations implicit inthe zoning resolution will eventually becomeobsolete and thus deviate from the planningobjectives. Recognizing this dilemma, this articlehas demonstrated that the public review includedin the CEQR, which is practiced in New York Cityand processed through the EAS, provides amethod to evaluate previously assumed conclu-sions by reckoning the public opinion in planningprocess. While the empirical methods implicit inzoning serve to protect the public interest, theycannot be used to test a priori hypotheses. Thusthey tend to disregard the rapid pace of changethat characterizes urban development and trans-formation. As public opinion is more responsive to



the shifting premises of urban condition, it pro-vides supplementary data for review procedure.While empiricism remains explicit in the adminis-trative routines of EAS, the qualitative referencesare fairly weak. To render a comprehensiveevaluation, the environmental assessment oughtto expand on qualitative references and data. Thisarticle has demonstrated one occasion wheredesign in discretionary review introduced quali-tative data to the administrative routines of EAS,and rendered evaluation through planning objec-tives rather than through absolute rules. Furtherresearch is needed to estimate its impact on thelarger aspects of city building.This article demonstrates that architectural

design and negotiations involving multi-disci-plinary specialist teams can generate solutionsthat yield greater floor area and therefore revenuesthan as-of-right zoning envelopes would allow.Still, the disciplinary means of city planningcannot be ignored. It was only by elaborating onthe planning objectives that Neil M. Denari man-aged to shape an edifice that not only securedcash-flow for the developer, but also light and air-flow for the public. Although economics may beour primary mode of city governance, which PierVittorio Aureli (2011) so clearly articulates, thesignificance of urban space cannot be measuredsolely from a financial perspective. The planningobjectives continue to entail a core principle for thecollective enterprise of city building; hence theyare commonly utilized to evaluate the significanceof urban space. This article concludes, therefore,that the associative relationship between architect,developer, and city planning agencies provides themeans to unlock flexibilities in zoning.

Acknowledgements

Data collection for this research project was sup-ported by the Moss Scholarship/UCLA Arts, theLars Erik Lundberg Scholarship Foundation, and theUCLA Dissertation Year Fellowship. The writing ofthis article was pursued during my Assistant Pro-fessor tenure at the City University of Hong Kong,Department of Architecture and Civil Engineering.

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