Recent Developments in Zoning, Land Useand Building Controls

“Navigating a Development Project ThroughMultiple Land Use Approvals”

Howard S. Weiss, Esq.

1. Land Use Regulation In New York City

In the 94 years since New York City adopted its Building Zone Resolution, the Nation’s first comprehensive set of municipal zoning controls, land use regulation in New York and across the country has evolved in ways that unquestionably would astound the architects of our early zoning rules. The Building Zone Resolution established a relatively simple set of controls on the bulk of new buildings involving the regulation of their heights and setbacks. The city’s zoning ordinance also separated what were deemed incompatible uses through the establishment of three separate districts – Residential, Business, and Unrestricted.

Today, New York City’s compendium of zoning rules that govern the use and bulk of buildings and other structures only faintly resembles the Building Zone Resolution. The city’s 1961 overhaul of its zoning regulations replaced the rudimentary Building Zone Resolution with the New York City Zoning Resolution, which is comprised of 900 pages found in three over-sized volumes. The first two volumes contain the zoning text with 13 Articles that are characterized by a complex maize of use and bulk controls applicable to a broad range of residential, commercial and manufacturing districts, which are arranged on quarter section maps that comprise the third volume. In turn, the three basic districts are broken down into a multitude of sub-districts and layered with special purpose districts mapped in many parts of the city. For each of the special purpose districts, the City has established distinctive use and bulk regulations that modify the regulations generally applicable in the underlying Residential, Commercial and Manufacturing districts. A listing of the Zoning Resolution’s 13 articles with summaries of their contents are found in Appendix 1.

Apart from New York City’s extensive and elaborate zoning framework governing the use and development of land, the city remains in the forefront of controlling development affecting municipally designated historic building and properties located in the panoply of historic districts established in all five boroughs of the city. Landmarks regulation is one of the later inventions in the city’s tool chest of land use controls, which came into play when Mayor Robert F. Wagner created the Landmarks Preservation Commission in 1965. In order to alter or demolish building designated as a landmark by the Commission, or to perform work on a building or project site located in an historic district, a Certificate of Appropriateness or Certificate of No Effect first must be obtained from the Commission.

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2. The Paths To Development Under NYC Land Use Regulation

The rules underlying land use regulation in New York City weave an intricate tapestry of discretionary land use approvals, which at times stump even experienced land use practitioners and seasoned developers. In broad terms, the Zoning Resolution leads to four distinct paths to development.

2.1 As-Of-Right Development.

The first path, as-of-right development, involves the exclusive jurisdiction of the Department of Buildings to review a Plan/Work Approval Application to ensure compliance with the applicable laws, rules and regulations, including the New York City Zoning Resolution and the applicable codes found in the New York City Administrative Code. In theory, the approval of the application and plans is ministerial and does not implicate the exercise of discretion by Buildings Department officials. In practice, however, there is considerable discretion exercised by examiners and senior Buildings Department officials daily in the review of proposed new building and altered building plans, as discussed at length earlier in today’s program.

2.2 Development Involving Special Permits

The second path to development involves obtaining special permits in connection with specified uses or bulk restrictions. The special permit requirements under the Zoning Resolution are set forth in Article VII, which establishes that certain special permits are within the jurisdiction of the Board of Standards and Appeals (Zoning Resolution Section 73-00 et seq.) and others are under the purview of the City Planning Commission (Zoning Resolution Section 74-00 et seq.). The City Planning Commission and Board of Standards and Appeals, both are required to make specific findings in order to grant a special permit application.

2.2.1 Special Permits By The Board of Standards and Appeals

Zoning Resolution Section 73-01 empowers the Board of Standards and Appeals to grant special permits for specified uses in specific districts, which are referred to as “special permit uses,” and allow specified modifications of the use or bulk regulations of the Zoning Resolution. The power of the Board of Standards and Appeals to grant such special permits is conditioned upon the requirement for findings as set forth in Article VII, Chapter 3 being satisfied.

The following general findings are required by Zoning Resolution Section 73-03 for all special permits under the purview of the Board of Standards and Appeals:

(a) The Board must make all of the findings required in the applicable sections of Article VII, Chapter 3 with respect to each such special permit use or modification of use, parking or bulk regulations, and it is required to find that, under the conditions and safeguards imposed, the hazards or disadvantages to the community at large of such special permit use or modification of use, parking or bulk regulations at the particular site are outweighed by the advantages to be derived by the community by the grant of such special permit. In each case the Board must

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determine that the adverse effect, if any, on the privacy, quiet, light and air in the neighborhood of such special permit use or modification of use, parking or bulk regulations will be minimized by appropriate conditions governing location of the site, design and method of operation.

(b) The Board must deny a special permit whenever such proposed special permit use or modification of use, parking or bulk regulations will interfere with any public improvement project (including housing, highways, public buildings or facilities, redevelopment or renewal projects or right-of-way for sewers, transit or other public facilities) which is approved by or in the process of being approved by the City prior to the date of the public hearings before the Board regarding such special permit application.

(c) When under the applicable special permit findings the Board is required to determine whether the special permit use or modification of use, parking or bulk regulations is appropriately located in relation to the City’s street system, the Board may make such determination on the basis of the Master Plan of Arterial Highways and Major Streets as shown on the official City Map. Whenever the Board is required to make a finding on the location of a proposed special permit use or modification of use, parking or bulk regulations in relation to secondary or local streets and such classification of streets is not shown on the Master Plan, the Board in its discretion will request the City Planning Commission to establish a report on the appropriate classification of such street.

(d) For applications relating to Zoning Resolution Sections 73-243 (certain eating or drinking places in C1-1, C1-2 and C1-3 districts), 73-48 (exceptions to maximum size of certain group parking facilities) and 73-49 (parking on the roof of public parking garages in C2-1, C2-2, C2-3, C2-4, C4-1, C4-2, C4-3, C4-4, C7, C8-1, C8- 2, C8-3, M1-1, M1-2, M1-3, M2-1, M2-2 or M3-1 districts), the Board in its discretion will request from the Department of Transportation a report with respect to the anticipated traffic congestion resulting from such special permit use or modification of use, parking or bulk regulations in the proposed location. If such a report is requested, the Board will in its decision or determination give due consideration to such report and further shall have the power to substantiate the appropriate finding solely on the basis of the report of the Department of Transportation with respect to the issue referred.

(e) If a term of years is specified in the Zoning Resolution with respect to any special permit that may be granted by the Board, then the Board is required to establish a term of years not to exceed such maximum. For those special permit uses or modification of use parking or bulk regulations for which a maximum term has not been specified in the Zoning Resolution, the Board has the discretion fix an appropriate term for any such special permit use or modification of use parking or bulk regulations.

(f) Where a special permit is granted by the Board for a term of years because such term was specified in the Zoning Resolution or the Board, in its discretion determined that in granting the special permit it was appropriate to establish a maximum term, a renewal application may be filed with the Board to extend the term of the special permit. On such application, the Board is required to determine whether the circumstances warranting the original grant still obtain. In addition, the Board is required to ascertain whether the applicant has complied with the conditions and safeguards required by the Board for the prior term. In the event that the Board

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shall find the applicant has been in substantial violation thereof, it will deny the application for renewal.

Pursuant to Zoning Resolution Section 73-04, the Board of Standards and Appeals may prescribe such conditions and safeguards to the grant of special permit uses as it may deem necessary in the specific case, in order to minimize the adverse effects of such special permit upon other property and the community at large. Such conditions and safeguards will be incorporated in the building permit and certificate of occupancy. Failure to comply with such conditions or restrictions will constitute a violation of the Zoning Resolution, and may constitute the basis for denial or revocation of a building permit or certificate of occupancy and for all other applicable remedies.

The specific special permit uses or modifications of use, parking or bulk regulations within the jurisdiction of the Board of Standards and Appeals are found in Zoning Resolution Sections 73-10 through 73-68.

Pursuant to Section 1-06(d) of the Board of Standards and Appeals Rules of Practice and Procedure, within three business days after a special permit application has been filed with the Board, a copy of all case materials submitted to the Board must be sent to the affected Community Board(s) (or Borough Board); the affected City Councilmember; the affected Borough President; the Department of Buildings borough office that issued the zoning objection, which is the basis of the special permit application; and the City Planning Commission. Pursuant to Section 1-06(f), within 60 days after receipt of notification, the Community Board may hold a public hearing and submit a written recommendation concerning such special permit application to the Board, or may waive in writing the holding of a public hearing. If a borough board is involved, within thirty (30) days after the filing of a recommendation or waiver with it by every community board in which the land involved is located or after expiration of the time allowed for such community boards to act, the borough board may hold a public hearing and submit a written recommendation to Board of Standards and Appeals or may waive a public hearing. Upon receipt of a waiver or recommendation from the affected Community Board(s) or Borough Board, or upon the expiration of the time period for their review, the Board of Standards and Appeals will review the application, hold a public hearing, and make a decision. The Board of Standards and Appeals may, in its discretion, choose to receive and review Community Board and Borough Board recommendations as evidence in the record even if received after the applicable time period has expired. The recommendations received from Community Boards and Borough Boards are advisory and the decision to grant or deny a special permit application is within the sole discretion of the Board of Standards and Appeals.

2.2.2 Special Permits By The City Planning Commission

Zoning Resolution Section 74-01 sets forth the general provisions applicable to all special permits granted by the City Planning Commission, and provides that the City Planning Commission may, after public notice and hearing, grant special permits in specific districts for the uses listed in Zoning Resolution Article VII, Chapter 4, whose location or control requires special consideration or major planning factors, or for specified modifications of the use or bulk regulations of the Zoning Resolution, provided that in each specific case, as a condition precedent

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to the grant of such special permit, the requirement for findings are met as set forth in the provisions of Chapter 4.

Pursuant to Zoning Resolution Section 74-21, the City Planning Commission may prescribe such conditions and safeguards to the grant of special permits as it may deem necessary in the specific case, in order to minimize the adverse effects of such special permit upon other property and the community at large. Such conditions and safeguards will be incorporated in the building permit and certificate of occupancy. Failure to comply with such conditions or restrictions constitute a violation of the Zoning Resolution, and may constitute the basis for denial or revocation of a building permit or certificate of occupancy and for all other applicable remedies.

Pursuant to Zoning Resolution Section 74-31, the following general findings are required for all special permits under the purview of the City Planning Commission:

(a) The Commission must make all of the findings required in the applicable sections of Article VII, Chapter 4 with respect to each such special permit use, and, in order to grant the special permit, must find that the hazards or disadvantages to the community at large through the location of such use at the particular site are outweighed by the advantages to be derived by the community from the grant of such special permit use. The Commission is required in each case to determine that the adverse effects, if any, on the privacy, quiet, light and air in the neighborhood of such use will be minimized by appropriate conditions governing location of the site, design and method of operation.

(b) In all cases, the Commission will deny a special permit use whenever such use will interfere with a public improvement project (including housing, highways, public buildings or facilities, redevelopment or renewal projects, or rights-of-way for sewers, transit or other public facilities) which is approved by or in the process of being approved by the City prior to the date of the public hearings before the Commission regarding such special permit application

(c) Where, under the applicable findings, the Commission is required to determine whether the special permit use is appropriately located in relation to the street system, the Commission will make such determination on the basis of the City’s Master Plan of Arterial Highways and Major Streets. Whenever the Commission is required to make a finding on the location of a proposed special permit use in relation to secondary or local streets and such classification of streets is not shown on the Master Plan, the Commission is required to thereupon establish the appropriate classification of such streets.

(d) All applications relating to specific special permits under Zoning Resolution Sections 74-41 to 74-70, inclusive, and Section 74-80, will be referred by the Commission to the Department of Traffic for its report with respect to the anticipated traffic congestion resulting from such special permit use in the proposed location, and when so required in the specific Section, the Commission is required to refer the application to a designated agency for a report on the issue in question. If such agency reports back to the Commission within one month from the date of referral, then the Commission , in its determination, will give due consideration to such report and, further, will have the power to substantiate the appropriate findings solely on the basis of the report by such

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agency with respect to the issue referred. If such agency does not report within one month, then the Commission may make a final determination without reference thereto.

The specific special permit uses or modifications of use, parking or bulk regulations within the jurisdiction of the City Planning Commission include use permits (Zoning Resolution Sections 74-40 et seq.), off street parking establishments (Zoning Resolution Sections 74-50 et seq.), public service or transportation facilities off street parking establishments (Zoning Resolution Sections 74-60 et seq.), landmark preservation (Zoning Resolution Sections 74-71 et seq.), bulk modification (Zoning Resolution Sections 74-72 et seq.), general large scale development (Zoning Resolution Sections 74-74 et seq.), plazas (Zoning Resolution Sections 74-76 et seq.), conversions of non-residential buildings (Zoning Resolution Sections 74-78 et seq.), transfer of development rights from landmark sites (Zoning Resolution Sections 74-79 et seq.), special height and setback regulations (Zoning Resolution Sections 74-85 et seq.),. modification of height and setback and street wall regulations (Zoning Resolution Sections 74-88 et seq.), use and bulk modifications for certain community facility uses (Zoning Resolution Sections 74-90 et seq.), and special urban design guidelines – use and bulk modifications (Zoning Resolution Sections 74-96 et seq.).

Pursuant to Zoning Resolution Section 11-42, .any special permit granted by the City Planning Commission for a specified use or for a modification of use or bulk regulations, will automatically lapse if substantial construction, in accordance with the plans for which such special permit was granted, has not been completed within four years from the effective date of such permit. Substantial construction shall mean, in the case of a new building or buildings, the substantial construction of at least one building. Pursuant to Section 11-43, any special permit granted by the City Planning Commission, except one granted with a ten year lapse period, that would automatically lapse as set forth in Section 11-42, may be renewed without public hearing, for two additional three-year terms, provided that the Commission finds that the facts upon which the special permit was granted have not substantially changed. However, all special permits granted by the Commission shall lapse after a total of ten years from the date of their original granting if substantial construction has not taken place at such time. An application for a renewal of a special permit must be filed with the Commission before it lapses.

Pursuant to Section 197-c of the New York City Charter, an application for a City Planning special permit is subject to public review and approval in accordance with the City’s Uniform Land Use Review Procedure (“ULURP”).

The application will be filed with the Department of City Planning and upon its determination that the application is complete and ready for public review, it will be referred to the affected Community Board.

Within 60 days of receiving the certified application, the Community Board is required to hold a public hearing and sent to the City Planning Commission a written recommendation.

The Community Board’s recommendation also is sent to the affected Borough President, who, within 30 days of receiving the Community Board’s recommendation, or if the Community Board fails to act, within 30 days of the expiration of the Community Board's review period, will submit a written recommendation to the City Planning Commission.

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In turn, the City Planning Commission is required to hold a public hearing and approve, approve with modifications or disapprove the special permit application within 60 days of the expiration of the Borough President's review period.

The City Council may elect to review the Commission’s decision by voting to take jurisdiction within 20 days after CPC files its report, which is referred to as the City Council “call-up” of the application. Within 50 days of receipt of the Commission’s report on an application, the Council must hold a public hearing, and approve, approve with modifications or disapprove the decision of the City Planning Commission. If, during the course of its 50-day review period, the Council decides it wants to approve an application with a modification, it must refer the proposed modification to the City Planning Commission, which must then determine if the modification is of such significance that additional environmental review is necessary or that additional review pursuant to ULURP is required. The Commission has 15 days to decide whether it will require additional review. During this 15-day period the Council’s 50-day clock is stopped. If the Commission decides that additional review is required, the Council may not adopt the modification. If no additional review is needed, the Council can adopt the application with the proposed modification.

The City Council decision to approve or disapprove a special permit application final unless the Mayor elects to veto a Council action within 5 days of the vote, which the Council can override within 10 days of the veto. A special permit application approved by the City Planning Commission that was not called up by the Council also can be vetoed by the Mayor within 5 days of the expired Council 50-day time period. The Council can override a Mayor's veto of the City Planning Commission decision within ten days of the veto.

2.3 Development Upon Approval of Zoning Map and Text Amendments

2.3.1 The City’s Zoning Map in Volume III of the Zoning Resolution, indicates the use district within which a particular property is located. The Zoning Resolution’s text in Volumes I and II, indicate the particular uses permitted in the specified districts as well as the governing bulk regulations. By obtaining a zoning map amendment affecting a particular parcel of land, or a change in the text of the zoning ordinance, the owner can alter the use or bulk regulations applicable to the property. The pursuit of zoning map and text changes represents a third path to development. The adoption of zoning map and text amendments are discretionary with the city’s officials charged with responsibility for amending the ordinance text and map.

2.3.2 New York State’s zoning enabling statutes require that the adoption of a municipality’s zoning ordinance must be "in accordance with a comprehensive plan" or "in accordance with a well considered plan," (see General City Law Section 20[25]). Thus, a requested zoning map amendment must conform to the locality’s plan. In the case of New York City, the Administrative Code requires, similarly, that the City Planning Commission’s power to regulate land use through zoning must be in accord with a “well considered plan” (New York City Administrative Code Section 25-111[c]). There is no single document that will necessarily

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constitute a well-considered plan in support of amendments to the City’s zoning text or zoning map.

“‘Zoning legislation is tested not by whether it defines a well-considered plan, but by whether it accords with a well-considered plan for the community’ ” ( Matter of Gernatt Asphalt Prods., 87 N.Y.2d 668, supra at 684-685, 642 N.Y.S.2d 164, 664 N.E.2d 1226, quoting Asian Ams. for Equality v. Koch, 72 N.Y.2d 121, 131, 531 N.Y.S.2d 782, 527 N.E.2d 265 [1988]). The essential purpose of this requirement is to “guard against ad hoc zoning legislation affecting the land of a few without proper regard to the needs or design of the community as a whole” ( id . at 685, 642 N.Y.S.2d 164, 664 N.E.2d 1226). However, a municipality may change its zoning ordinance to promote the general welfare and to respond to changed conditions in the community so long as the change does not “conflict with the fundamental land use policies and development plans of the community” ( id. ).

C/S 12th Ave. LLC v. City of New York, 32 A.D.3d 1, 9,815 N.Y.S.2d 516, 524, (1st Dept., 2006)

2.3.3 New York City Charter Section 200 provides that the City Planning Commission may, on its own initiative, or upon an application filed pursuant to Charter Section 201 by any taxpayer, Community Board, Borough Board, Borough President, by the Mayor or by the land use committee of the City Council (if two-thirds of the members of the committee shall have voted to approve such filing with the City Planning Commission). Frequently, an application to amend the zoning text or zoning map will undertaken by the Department of City Planning on its own initiative or at the request of other public agencies or government officials. The extensive zoning text and map amendments affecting the Greenpoint and Williamsburg areas in the Borough of Brooklyn, for example, started with a plan put forth by Brooklyn Community Board 1 pursuant to New York City Charter Section 197-a, which authorizes the Mayor, City Planning Commission, City Planning Department, Borough President, Borough Board or Community Board, to propose a plan “for the development, growth, and improvement of the city and of its boroughs and community districts.” As noted above, an amendment application proposing zoning changes also may be filed private applicants in connection with property they own.

2.3.4 Pursuant to Sections 200 and 201 of the City Charter, zoning map amendments may be adopted only after public review by the affected Community Board(s), Borough President, the City Planning Commission and the City Council in accordance with the procedures established in New York City Charter Sections 197-c and 197-d. Zoning text amendments must be approved by the Commission and adopted by the City Council, following the procedures set forth in New York City Charter Sections 200, 201 and 197-d.

2.4 Development Upon The Grant of Use And/Or Bulk Variances

2.4.1 The zoning variance is often described as the “safety valve” that ensures the constitutionality of a zoning ordinance. There are times that zoning regulations generally applicable to properties in a zoning district may preclude all economic use of the property or effect a diminution of substantially all the value of the property. Such an impact on a specific parcel of

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land would be deemed an unconstitutional taking of the property requiring the municipality to pay just compensation. A zoning variance provides relief from such hardship in exceptional cases involving individual parcels of land.

2.4.2 The standards for obtaining a zoning variance in New York City are set forth in Zoning Resolution Section 72-21. The New York City ordinance does not distinguish between use and area variances, and establishes the same criteria for both, as follows:

When in the course of enforcement of this Resolution, any officer from whom an appeal may be taken under the provisions of Section 72-11 (General Provisions) has applied or interpreted a provision of this Resolution, and there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such provision, the Board of Standards and Appeals may, in accordance with the requirements set forth in this Section, vary or modify the provision so that the spirit of the law shall be observed, public safety secured, and substantial justice done. Where it is alleged that there are practical difficulties or unnecessary hardship, the Board may grant a variance in the application of the provisions of this Resolution in the specific case, provided that as a condition to the grant of any such variance, the Board shall make each and every one of the [five findings required by Zoning Resolution Section 72-21].

The Board must find that (a) there are unique physical conditions peculiar to and inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise in complying strictly with the use or bulk provisions of the Resolution; (b) because of such physical conditions there is no reasonable possibility that the development of the zoning lot in strict conformity with the provisions of the Zoning Resolution will bring a reasonable return to the owner of the property; (c) the variance, if granted, will not alter the essential character of the neighborhood or district in which the property is located; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental to the public welfare; (d) the practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner or by a predecessor in title; and (e) the variance, if granted, is the minimum variance necessary to afford relief; and to this end, the Board may permit a lesser variance than that applied for.

2.4.3 Pursuant to Section 1-06(d) of the Board of Standards and Appeals Rules of Practice and Procedure, within three business days after a special permit application has been filed with the Board, a copy of all case materials submitted to the Board must be sent to the affected Community Board(s) (or Borough Board); the affected City Councilmember; the affected Borough President; the Department of Buildings borough office that issued the zoning objection, which is the basis of the special permit application; and the City Planning Commission. Pursuant to Section 1-06(f), within 60 days after receipt of notification, the Community Board may hold a public hearing and submit a written recommendation concerning such special permit application to the Board, or may waive in writing the holding of a public hearing. If a borough board is involved,

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within thirty (30) days after the filing of a recommendation or waiver with it by every community board in which the land involved is located or after expiration of the time allowed for such community boards to act, the borough board may hold a public hearing and submit a written recommendation to Board of Standards and Appeals or may waive a public hearing. Upon receipt of a waiver or recommendation from the affected Community Board(s) or Borough Board, or upon the expiration of the time period for their review, the Board of Standards and Appeals will review the application, hold a public hearing, and make a decision. The Board of Standards and Appeals may, in its discretion, choose to receive and review Community Board and Borough Board recommendations as evidence in the record even if received after the applicable time period has expired. The recommendations received from Community Boards and Borough Boards are advisory and the decision to grant or deny a special permit application is within the sole discretion of the Board of Standards and Appeals.

2.5 Landmarks Regulation

2.5.1 The Landmarks Preservation Commission is established pursuant to the provisions of Chapter 74 of the New York City Charter. The Commission is conferred with broad powers with respect to any improvement in an historic district or on a landmark site or containing an interior landmark, or any landscape feature of a scenic landmark. In this regard, it may apply or impose, with respect to the construction, reconstruction, alteration, demolition or use of such improvement or landscape feature or the performance of minor work, regulations, limitations, determinations or conditions which are more restrictive than those prescribed or made by or pursuant to other provisions of law applicable to such activities, work or use. See, NYC Administrative Code Section 25-304, et seq.

2.5.2 In the Commission’s regulation of landmark buildings and historic districts, the Commission is expressly precluded from (i) regulating or limiting the height and bulk of buildings, (ii) regulating or determining the area of yards, courts and other open spaces, (iii) regulating density of population, or (iv) regulating or restricting the locations of trades and industries or location of buildings designed for specific uses, and from creating districts for any such purpose. See, NYC Administrative Code Section 25-304(a). In other words, the Commission is not empowered to exercise the zoning functions of the City with respect to its regulation of landmark building or properties in historic districts. Note, however, that the Commission may find that a proposed project is inappropriate under the provisions of the Landmarks Law even if the project complies with the Zoning Resolution's requirements.

2.5.3 In order to alter, reconstruct or demolish any improvement constituting a part of a landmark site, or constituting a part of an improvement parcel located within an historic district, or to construct any improvement upon land within an historic district, the a property owner must first obtain from the Commission a certificate of no effect on protected architectural features, a certificate of appropriateness or a notice to proceed authorizing such work. The Department of Buildings is expressly precluded from approving any application, and the City Planning Commission and Board of Standards & Appeals likewise are specifically prohibited from approving any application, or granting a special permit required by the provisions of Article VII of the Zoning Resolution, unless the Landmarks Preservation Commission has first issued a

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certificate of no effect, certificate of appropriateness or notice to proceed, as an authorization of such work. See, NYC Administrative Code Section 25-305.

2.5.4 Applications for a certificate of appropriateness are determined by the Landmarks Preservation Commission after it holds a public hearing regarding such application. See NYC Administrative Code Sections 308 and 313. The Commission requires that the Community Board in whose district the project site is located be accorded an ample opportunity to provide the Commission with its recommendation regarding any application for which a hearing will be held by the Commission, although Community Board review is not required by the Charter, Administrative Code of the rules of the Commission.

3. Formal Participants In The Land Use Approval Process In NYC

3.1 Special Permits By The Board of Standards & Appeals

Community Board (Advisory) Board of Standards & Appeals

3.2 Special Permits By The City Planning Commission

Community Board (Advisory) Borough President (Advisory) City Planning Commission City Council (if called up by the Council) Mayor

3.3 Zoning Map Amendment or Zoning Text Amendments

Community Board (Advisory) Borough Board (if multiple Community Districts affected)(Advisory) Borough President (Advisory) City Planning Commission City Council Mayor

3.4 Zoning Variance

Community Board (Advisory) Board of Standards & Appeals

3.5 Landmark Site or Historic District Certificate of Appropriateness

Community Board (Advisory) Landmarks Preservation Commission

4. Application Process

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4.1 Special Permits And Zoning Variances By The Board of Standards & Appeals

Pre-application meeting with Chair and staff required Filing of application documents prepared in accordance with Board’s Rules of

Procedure and application guidelines Examination by Board staff, who may issue objections requiring modification of

application documents Community Board public hearings (“Zoning” or “Land Use” Committee and Full

Board) Board of Standards & Appeals public hearing(s)

4.2 Special Permits and Zoning Map Amendments By The City Planning Commission

Pre-application meeting with borough staff required. Filing of ULURP documents in accordance with Department of City Planning

guidelines and direction received from borough staff Filing of Environmental Assessment Statement in accordance with City

Environmental Quality Review (unless Type II Action and no review is required) Review of Land Use Review Application documents by City Planning Technical

Review Division staff, who may require revisions to application documents Review of Environmental Assessment Statement documents by City Planning

Environmental Assessment Review Division staff, who may require revisions to environmental review documents, leading to a determination of environmental significance. EARD staff decides whether any identified adverse environmental impacts may be significant

o .If no adverse impacts are anticipated, staff will prepare a Negative Declaration, which allows the application to be certified once TRD staff decides the ULURP documents are complete.

o If adverse impacts are identified that can be mitigated, and the private applicant agrees to such mitigation, then a Conditional Negative Declaration may be issued, which similarly allows the application to be certified.

o If significant impacts are identified, a Positive Declaration will be issued by EARD staff, requiring completion of a draft Scoping of work, a public Scoping meeting, completion of a final Scoping of work, and completion of a Draft Environmental Impact Statement (EIS), all before the ULURP application can be certified as complete.

Upon certification, ULURP proceeds as prescribed by NYC Charter Section 197-c (Community Board/ 60 days, Borough President/ 30 days, City Planning Commission/ 60days, City Council [if Special Permit application is called up; required for Zoning Map amendments]/ 50 days, and Mayor/ 5 days)

4.5 Landmark Site or Historic District Certificates of Appropriateness

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Pre-application consultation with Preservation Department staff strongly is recommended although it is not required by the Commission

At such time as the application is filed with the Commission, it will be assigned to a staff member in the Preservation Department (who generally will be the staff member with whom the applicant will have been dealing during pre-application consultation), who will handle the project. The staff person will review the proposal to ascertain whether the materials submitted are sufficient for a determination to be made. If the materials are sufficient, staff will certify the application as complete and issue the appropriate permit or take other action. If the completed application requires a Certificate of Appropriateness, staff will arrange for the item to be included in the next scheduled Certificate of Appropriateness public hearing calendar.

In the event that Commission staff finds that clarification and/or additional documentary materials are required, then staff will communicate the request to the applicant, who will receive a Materials Checklist specifying the additional materials that may be required before the application can be certified as complete.

Upon receipt of the additional materials, Commission staff will decide whether it is sufficient and, if staff is satisfied with the additional materials, the will certify the application as complete and process the application for public hearing by the Commission.

The Commission holds Certificate of Appropriateness hearings every month, usually on the fourth Tuesday of the month. At the conclusion of the hearing the Commission may decide the application, or, in the event it determines that modifications may be appropriate or additional information is required, schedule the application for consideration at a future public meeting.

5. Who’s On First, What’s On Second, I Don’t Know… Third Base!

The following are development scenarios requiring multiple land use approvals. The principal question that an applicant must address at the outset is the determination regarding where does one begin. It is complicated enough to know precisely how to proceed when just one of the city’s land use agencies is involved in the public review and approval of the proposed development. It is still more perplexing to know how to proceed when two or more agencies will exercise jurisdiction over the development. The conundrum arises not only in terms of where to start, but along the way to decide precisely who is driving the train.

5.1 Nursing Home Expansion. The owner of an existing nursing home desires to modernize and expand the facility. The property is located in Jamaica, Queens in Community District No. 8. The one story enlargement will be within the maximum permitted FAR, but creates a sky exposure plane encroachment, requiring a variance from the Board of Standards & Appeals pursuant to Zoning Resolution Section 72-21. In addition, a special permit will be required from the City Planning Commission pursuant to Zoning Resolution Section 74-90 because under Zoning Resolution Section 74-903 Queens Community District No. 8 is one of the districts in which a special permit is required for the erection or enlargement of nursing home facilities.

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5.2 New Mixed-Use Building. Located in the Tribeca area of lower-Manhattan, a corner lot is developed with a one story garage building that dates back to 1929. The property is in an M1-5 (Manufacturing) district and within the Special Tribeca Mixed-Use District. It is also located in Tribeca North Historic District. The owner wishes to demolish the garage building and erect a nine-story mixed-use building with ground floor retail, four floors of offices and four floors of apartments. The proposed residential use is not permitted in the M1-5 district and the building with an FAR of 7.9 will exceed the maximum permitted FAR of 5.0. Setback and sky exposure plane waivers also are required in addition to a waiver of the maximum perimeter wall height. Use and bulk variances are required from the Board of Standards & Appeals pursuant to Zoning Resolution Section 72-21. In addition the demolition of the existing building and construction of the proposed mixed-use building require a Certificate of Appropriateness from the Landmarks Preservation Commission.

5.3 New Single Family Residence. The property is a vacant lot situated in an R1-1 (Residence) district, which is mapped within a Special Natural Area District. The premises is also located within the Riverdale Historic District. The property is under contract and the prospective owner wishes to build a one-family home on the lot. Pursuant to the provisions of Zoning Resolution Section 23-32, the development of a single-family detached residence on a property in an R1-1 district requires a minimum lot width of 100 feet. The lot’s width measures only 92.85 feet at its Independence Avenue frontage and 92.94 feet at its rear lot line. A variance pursuant to Zoning Resolution Section 72-21 will be required from the Board of Standards & Appeals to overcome the lot width deficiency. In addition, authorizations are required from the City Planning Commission pursuant to the Special Natural Area District provisions in Article X, Chapter 5 of the Zoning Resolution. The proposed new building also will require a Certificate of Appropriateness form the Landmarks Preservation Commission.

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APPENDIX 1

NEW YORK CITY ZONING RESOLUTION ARTICLES ITHROUGH XIII AND APPENDICES

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ArticArticle I Establishment of Controls, Rules of Interpretation, Rules for Construction of Language, Definitions, and Regulations Pertaining to Off-Street Parking, Sidewalk Cafes, and Residential Conversion of Non-Residential Buildings

Article VIII Special Purpose Districts: Midtown District, Lincoln Square District, Limited Commercial District, Battery Park City District, United Nations Development District

Article II Residential District Regulations Article IX Special Purpose Districts: Lower Manhattan District, Park Improvement District, Hudson Yards District, Sheepshead Bay District, Transit Land Use District, Clinton District, 125th Street District, West Chelsea District, Madison Avenue Preservation District

Article III Commercial District Regulations Article X Special Purpose Districts: Downtown Brooklyn District, Scenic View District, Planned Community Preservation District, Manhattanville Mixed Use District, Natural Area District, Coney Island Mixed Use District, South Richmond Development District, Hunts Point District, Little Italy District

Article IV Manufacturing District Regulations Article XI Special Purpose Districts: Tribeca Mixed Use District, City Island District, Ocean Parkway District, Bay Ridge District, Downtown Jamaica District, Stapleton Waterfront District, Long Island City Mixed Use District, Union Square District, Hillside Preservation District

Article V Regulations Applicable to Non-Conforming Uses and Non-Complying Buildings

Article XII Special Purpose Districts: Garment Center District, Grand Concourse Preservation District, Mixed Use District,

Article VI Special Regulations Applicable Around Major Airports and In Waterfront Areas

Article XIII Special Purpose Districts: Coney Island District.

Article VII Rules Pertaining to Administration and Enforcement, Interpretations and Variances, Special Permits by the Board of Standards & Appeals, Special Permits by the City Planning Commission, Amendments, Location of District Boundaries, Zoning Lots Divided by District Boundaries, Large Scale Residential Developments and Community Facility Developments

Appendix Index of Uses, Quantities of Radioactive Material, Designation of Arterial Highways, Index of Special Purpose Districts, Design Requirements for Plazas, Residential Plazas and Urban Plazas developed prior to October 17, 2007

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