Issues in TRANSFERRING DEVELOPMENT RIGHTS in New York City: Previously-Granted Variances

Michael Smith, Guest Contributor | May 29, 2015 in Board of Standards and Appeals,Development,Planning,Zoning | Comments (0)

While transferring unused development rights can potentially enable construction at otherwise prohibited densities, such transfers often introduce issues that, if unaddressed, can derail a project long after money has changed hands.  This article focuses on one such issue, namely that discretionary NYC Boards of Standards and Appeals (BSA) approval is required before transferring unused development rights to, or from, sites benefiting from variances that were previously granted by the BSA.  For example, in Bella Vista v. Bennett, 89 N.Y. 2d 565 (1997), the sending site (seller) benefitted from a BSA variance, but the parties purported to effect the transfer without obtaining the necessary BSA approval.  The receiving site (purchaser) was later denied a building permit to use the subject development rights, and then sued the City (wherein ultimately, the purported transfer was invalidated, because the required BSA approval was not obtained).

BACKGROUND 

NYC regulates development intensity, including by limiting the square footage of zoning floor area (ZFA) (i.e., so-called “development rights”) permitted without discretionary zoning approval.  A site’s maximum ZFA depends on its applicable lot area, which sometimes can be exceeded using ZFA from another, adjacent zoning lot.  The most common way is by a zoning lot merger, whereby adjacent zoning lots (with consent from owners, lenders and other interested parties) are combined into an enlarged zoning lot, with a maximum ZFA equaling that of the sum of each of the individual constituent zoning lots.  Unused ZFA can be reallocated to a specific site in the new zoning lot that is targeted for future development.

BSA APPROVAL 

While otherwise not required to transfer unused development rights by “traditional” zoning lot merger, BSA approval is needed where a newly-enlarged zoning lot would include a site that has previously been granted a BSA variance.  The appropriate BSA application is to reopen, and amend, the original variance.  BSA’s approval is not automatic, but rather a circumstantial inquiry of whether the variance would be undermined.  See, e.g., BSA Cal. No. 885-78-BZ (2009) (citing Bella Vista).

FINAL THOUGHTS 

Before transferring unused development rights in NYC, confirm whether any relevant site benefits from a BSA variance.  If so, review any underlying BSA documentation to evaluate the likelihood of BSA approval.  Responsibility should be allocated (between a seller and a purchaser) for pursuing any necessary BSA approval.  A well-drafted agreement can establish crucial protections, including deadlines and consequences.

While this article focuses on one discrete issue, there are many considerations in transferring unused development rights in NYC, the failure of which to evaluate could be problematic.


An Air Rights Plan to Help Hudson River Park

admin | April 4, 2014 in Uncategorized | Comments (4)

HRPMap

You may have heard about an innovative and ambitious plan being developed by the Hudson River Park Trust, intended as a way to finance (in part) the ongoing construction and continued maintenance of the group’s namesake, five-mile-long open space, which stretches from the Battery to 59th Street in Manhattan, encompassing a “500-acre footprint” including over a dozen piers extending into the Hudson.

The group is currently in the planning stages for a proposal that would effectively transfer unused development rights tied to a certain number of the existing piers (quoted in recent press coverage as the equivalent of approximately 1.6 million square feet), to an area defined as a special “transfer district” (similar to the underlying framework along the High Line and other delineated areas in the City), covering roughly one City block’s width in from the shoreline, for the full length of the Park.

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Meet the New Planning Commissioner

admin | February 11, 2014 in Planning | Comments (1)

Headshot-Carl-Weisbrod

Late last week, Carl Weisbrod was officially appointed to the Chair of the City Planning Commission, a two-in-one title that brings the added responsibilities of the Director of the City Planning Department.

The appointment of Mr. Weisbrod had been reportedly decided earlier in the week by City Hall and thus what surprise there was to the news was tempered by a sense of relief and even comfort.  Because of the relatively late appointment — and after a search that had had as many as half-a-dozen presumed contenders as recently as a week ago — this particular position had become the focus of increasing speculation across the real estate and development community.  The fact that Mr. Weisbrod was the co-chair of the Mayor’s own transition team — an unusual scenario he himself acknowledged at his inaugural press conference — provided an added layer of intrigue, but one that somehow seemed appropriate in the end.

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How did it get so late so soon?*

admin | January 31, 2014 in Uncategorized | Comments (5)

New_York_City_Hall_1919

Last week, David Greenfield (44th District, Brooklyn) was selected to chair the City Council’s Land Use Committee, but a number of key agency appointments in the de Blasio administration remain vacant or unconfirmed.  With turnover being widely reported at the top of City Planning, Landmarks, the BSA and HPD (to name just some) we, along with many others with an interest in land use and real estate, eagerly await word on those and other appointments. (more…)


Windy City

Arthur Huh, Planning and Development Specialist | October 7, 2013 in Department of Buildings,Safety | Comments (14)

Department_of_Buildings

For those who live, work, or happened to be visiting in Midtown Manhattan today, you’re probably well aware of the crane situation at the construction site for the tower on West 57th Street (under control, as of the late afternoon).  These types of situations—and this was the same site where an earlier crane memorably dangled 1,000 feet in the air for several days after Hurricane Sandy almost exactly one year ago—rightfully gain nationwide attention for the dramatic scale of the dangers posed, in a line of work that we so often take for granted.

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This Week at the City Planning Commission, 9/30

Arthur Huh, Planning and Development Specialist | September 30, 2013 in Planning,Rezonings,Zoning,Zoning Resolution | Comments (4)

Slide1

For the most part, much of the public drama over the Department of City Planning’s East Midtown proposal has been played out.  At this point, most anyone with a stake in New York City real estate has (often quite forcefully) thrown in their two cents:  architectural pundits and practitioners, big-time property owners, citywide civic advocacy groups, a consortium of affected Community Boards, present and presumptive Manhattan Borough Presidents, and nearly every faction of the fourth estate.  But ultimately—or likely penultimately, as the City Council will most certainly take its turn to weigh in—it finally comes down to what the City Planning Commission thinks, and its moment arrives this week.

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Park Here: Changes to Parking Regulations in the Manhattan Core

Jennifer Dickson, Urban Planner, Herrick's Land Use Group | August 29, 2013 in Parking,Planning,Zoning,Zoning Resolution | Comments (4)

parkingentrysignage

In May, the City Council adopted a zoning text amendment that revised the parking regulations in the “Manhattan Core,” the area south of 96th Street on the east side and south of 110th Street on the west side.  Since 1982, this area of Manhattan has been subject to parking regulations that differ from those in effect in the rest of the City, in part due to an effort to reduce pollution after the Clean Air Act and an acknowledgement that the number of cars in the congested areas of central Manhattan should be limited.  Parking is not required for any new development in the Manhattan Core and is only permitted in limited amounts.

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What’s Your Sign?

Michael Smith, Guest Contributor | August 6, 2013 in Department of Transportation,Signs | Comments (12)

 

Photograph A (green standard)

NEW YORK CITY’S STREET NAME SIGNS:
HOW AND WHY THEY VARY IN COLOR, SHAPE, SIZE AND CONTENT

Currently in New York City, there are approximately 250,000 street name signs.  Most have white text on green backgrounds and are otherwise uniformly designed (see Photograph A).  But, have you noticed that there are numerous variations in NYC’s street name signs?  Some signs, for example, have brown backgrounds; others blue; and yet others black.  Some signs are illuminated and some contain images.  Other variations in signage concern capitalization and font style.  If you have noticed these variations, have you also wondered about the meaning behind them?

This piece discusses the regulations behind the design of NYC’s street name signs, and among other things, why many of the street name signs in use today will be replaced over the next several years.

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This week at the City Planning Commission

Arthur Huh, Planning and Development Specialist | August 5, 2013 in Planning,Rezonings,Zoning,Zoning Resolution | Comments (6)

 

Slide1

For those of you planning to attend this week’s CPC public hearing session, remember that the host venue is the National Museum of the American Indian, in the former U.S. Custom House building, at One Bowling Green in Lower Manhattan.  When the CPC expects an extraordinary turnout for a public hearing, it makes special arrangements to move the proceedings—normally at its headquarters at 22 Reade Street—to an offsite location, and this week’s agenda should validate the move.

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Who’s Who in New York City Land Use: A Beginner’s Guide to City Agencies

Arthur Huh, Planning and Development Specialist | July 30, 2013 in Development,Planning,Zoning | Comments (11)

CNY

In the world of land use and real estate development here in New York City – even to those of us who work in (or are students of) it – it can sometimes feel like a foreign language is being spoken, with all the jargon, acronyms and bureaucratic titles involved.

Today’s entry provides a primer on some of the key players in local government who share some responsibility for writing, interpreting and applying the myriad rules and regulations one must navigate long before – and sometimes long after – the proverbial “first shovel” goes into the ground.  In a future post we’ll explain some of the frequently heard terms that describe the rules and issues that we as planners deal with on a daily basis.

After the jump, in alphabetical order (by acronym, as that’s how they we typically refer to them), are just some of the city agencies with a role in the land use process.  If you’re considering any kind of development within the five boroughs, you’ll be getting to know one or more of these entities along the way.  (And for further information on the responsibilities of each, click on the name to visit the official Web site.)

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