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Recent Developments in Zoning, Land Use

and Building Controls


November 8, 2010
Navigating a Development Project Through
Multiple Land Use Approvals
Presented by
Howard S. Weiss, Esq.
Davidoff Malito & Hutcher LLP
1.

Land Use Regulation In New York City

In the 94 years since New York City adopted its Building Zone Resolution, the Nations
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 citys zoning
ordinance also separated what were deemed incompatible uses through the establishment of three
separate districts Residential, Business, and Unrestricted.
Today, New York Citys compendium of zoning rules that govern the use and bulk of
buildings and other structures only faintly resembles the Building Zone Resolution. The citys
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 Resolutions 13 articles with summaries of their contents are
found in Appendix 1.
Apart from New York Citys 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 citys 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
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located in an historic district, a Certificate of Appropriateness or Certificate of No Effect first must


be obtained from the Commission.
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 todays 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
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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
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 Citys 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
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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 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 7310 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
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regulations of the Zoning Resolution, provided that in each specific case, as a condition precedent
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 Citys 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 Citys 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 Boards recommendation also is sent to the affected Borough President,
who, within 30 days of receiving the Community Boards 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 Commissions 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 Commissions 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 Councils 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 Citys Zoning Map in Volume III of the Zoning Resolution, indicates the use
district within which a particular property is located. The Zoning Resolutions 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 citys
officials charged with responsibility for amending the ordinance text and map.
2.3.2 New York States zoning enabling statutes require that the adoption of a
municipalitys 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 localitys plan. In the case of New York
City, the Administrative Code requires, similarly, that the City Planning Commissions 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 Citys zoning text or zoning
map.
Zoning legislation is tested not by whether it defines a wellconsidered 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 Commissions 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

3.3

Community Board (Advisory)


Borough President (Advisory)
City Planning Commission
City Council (if called up by the Council)
Mayor
Zoning Map Amendment or Zoning Text Amendments

3.4

Community Board (Advisory)


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

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4.

Application Process

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 Boards 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
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Landmark Site or Historic District Certificates of Appropriateness

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.

Whos On First, Whats On Second, I Dont 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
citys 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 lots 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 I
THROUGH XIII AND APPENDICES

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ArticArticle I

Article VIII

Special Purpose Districts: Midtown


District, Lincoln Square District, Limited
Commercial District, Battery Park City
District, United Nations Development
District

Article II

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
Residential District Regulations

Article IX

Article III

Commercial District Regulations

Article X

Article IV

Manufacturing District Regulations

Article XI

Article V

Regulations Applicable to NonConforming Uses and NonComplying Buildings


Special Regulations Applicable
Around Major Airports and In
Waterfront Areas
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

Article XII

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
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
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
Special Purpose Districts: Garment Center
District, Grand Concourse Preservation
District, Mixed Use District,
Special Purpose Districts: Coney Island
District.

Article VI
Article VII

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Article XIII
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