Over the last decade, the Spence School, one of the nation’s most elite all-girls preparatory schools (annual tuition: $60,000), spent approximately $102 million to transform an Upper East Side parking garage into a world-class athletic and educational facility. For much of the school day, however, the area’s public school students will use its gymnasium at zero cost to the city, thanks to an agreement finalized this month between Spence and the Department of Education. City councilmember Julie Menin took credit for negotiating the deal, but her predecessor Ben Kallos laid most of the groundwork over a period of more than five years.

Few would argue that public school kids shouldn’t have adequate gyms. But the arrangement, characterized as an “unusual” and “very unique” public-private partnership, raises key questions about the ability of New York’s private institutions to build new facilities for the exclusive use of their members.

In 2011, Spence began searching for lots for a new athletic complex. A favored location on East 103rd Street was in an R7-2 zoning district, which meant the school could build a facility as-of-right. After losing that site to Mount Sinai Medical Center, Spence quickly purchased a Hertz parking garage on 412 East 90th Street for $26.1 million. This location did not allow for as-of-right construction, so the school needed a special permit from the Board of Standards and Appeals (BSA), the obscure municipal body that grants deviations from the city Zoning Resolution, subject to specific legal guidelines.

In December 2016, the school filed plans with the Department of Buildings. The proposed facility would be far shorter than the legal maximum height, though built further back on the property than its zoning would allow without a variance. The BSA’s process for getting a special permit and variance requires an extensive application and public hearing, which takes place after the application’s review is mostly done.

The following month, Kallos, then the area’s city councilmember and chairman of the Committee on Governmental Operations, the council committee that oversees the BSA, met with then–head of school Bodie Brizendine to discuss the building plans. Kallos told Brizendine that two neighboring public schools lacked dedicated gym space, at which point Brizendine indicated that part of the new facility might be made available to those public schools for free, given that Spence would primarily use it for after-school activities.

In April 2017, Spence’s land use attorney filed an application with the BSA, and the project received advisory approval from Community Board 8. During the BSA’s November public hearing for the project, Kallos testified in-person to support granting the special permit and variance. In April 2018, the BSA approved Spence’s application.

The project broke ground in September 2018 and was completed last year. Two members of its design team—the ultra-elite Rogers Partners and Nelson Byrd Woltz—won the 2022 design award of the American Institute of Architects for their work on the magnificent 65,000 square foot building. As this school year started, new head of school Felicia Wilks hailed the final Spence–DOE agreement, saying that opening the facility’s doors to P.S. 151 and P.S. 527 students demonstrates “an essential part” of Spence’s mission and membership in the Yorkville community.

By all accounts, Brizendine, Wilks, and Spence’s board expressed extraordinary generosity and genuine goodwill for the area’s students and institutions. Still, the highly unusual nature of the public-private arrangement raises questions of why education officials and elected leaders took so long to obtain gym facilities for the area’s public school students, and then only agreed to a deal that required those students to wait years longer.

After all, the DOE’s five-year capital budget amounts to some $20 billion, separate from its $38 billion annual general budget. Both mushroomed during the de Blasio administration. Even if building new school gyms proved tough, nearby public-facing institutions, such as the 92nd Street Y, might have provided facilities.

While Kallos’s support was not legally necessary to secure the special permit and variance, it certainly didn’t hurt. Public opposition sometimes helps derail BSA approval. A thumbs-down from Kallos might have threatened Spence’s ability to proceed, especially given his ranking position on the BSA’s oversight committee. Left unknown is whether the school would have been so generous if it procured the 103rd Street property that would have allowed it to build as-of-right. Also unclear is whether Spence must continue to provide access to the public schools, even if its own need for the gym changes.

Regardless, the episode provides yet another lesson in how New York City’s convoluted zoning code produces bizarre outcomes. Rezonings already face steep hurdles: either a discretionary action—subject to the local councilmember’s veto—or a prolonged application to the BSA for an “administrative” permit or variance. The Spence–DOE deal now raises the specter of yet more, potentially expecting private institutions to provide some public access in order to proceed with a project, thereby eroding their private nature—and with it, the freedom of association.

One undercurrent running through this story is that elite private institutions may find it harder to justify expansions on their own terms—even if they create new jobs, invest $100 million in the area, or hire leading local designers to construct an award-winning space. Part of the reason parents send their children to Spence is for access to the very best facilities, something obtained uniquely through enrollment. Those same parents come from the population that pays the lion’s share of city income and real estate transfer taxes, which fund a budget ostensibly aimed at providing adequate public goods.

On the surface, it seems unfair that students from wealthy families can enjoy the finest athletic amenities, while public school kids use converted auditoriums and classrooms as gyms. But in a progressive city with a huge education budget, public schools should not need to rely on the beneficence of organizations like the Spence School.

Photo: Wikimedia Commons


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