The New York City Department of City Planning (DCP) has released its proposed framework for the rezoning of East Harlem. East Harlem is one of the seven neighborhoods identified by the administration for increases to residential density which would be subject to the Mandatory Inclusionary Housing requirements adopted in March 2016. DCP proposes to significantly upzone portions of Park, Second and Third Avenues, with buildings having the potential to reach up to 30 stories. We are actively following this proposal, which is expected to enter public review in April 2017, and will keep you updated.
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).
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.
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).
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.
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.
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.
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.
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.
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.)
The piece (which is misplaced in the Arts Section) argues that the plan, developed by the Department of City Planning, calls for too much density, without sufficient focus on infrastructure and mass transit – and it seems to suggest that people won’t be working in high-rises so much (but is silent about living).
Density is good for the environment, and it is good for New York. It is a key reason why the City’s “carbon footprint” is so low. Density is also good for the workplace – as it brings people and corporations together. It is good for neighborhoods and for the life of the City. The rezoning’s focus on Grand Central (contrary to the main theme of the Times’ commentary) demonstrates an awareness of the basic need to support the highest densities at and around established transit nodes. The plan is not an irresponsible call for enormous buildings – but an incentive program to encourage the replacement and rebuilding of undersized and obsolete Class “B” buildings.
The plan doesn’t pretend that zoning is a panacea – it’s but one tool in an overall effort to keep New York City globally competitive while also balancing a regional focus among Hudson Yards, Lower Manhattan and Midtown.
The Times piece would be better placed in the Metropolitan section – and would better serve the readers if it were more comprehensive.
(Image borrowed from Department of City Planning presentation of East Midtown Rezoning).
Notwithstanding the plethora of rezonings accomplished by the City Planning Commission (with the approval of the City Council) over the past decade—many of which erased industrial zoning—New York City continues to maintain multiple manufacturing districts throughout the five boroughs. Yet, except for certain niche industries and highly specialized manufacturing businesses, the decline of traditional industrial uses continues. Of course, key concentrations of industrial jobs do exist, at the Brooklyn Navy Yard and portions of Industry City (also in Brooklyn), for example. But it seems quite clear that these are not in the “traditional smokestack” industries, where assembly lines of people engage in round-the-clock mass production. On the contrary, a range of manufacturing sectors has actually lost hundreds of jobs over the last few decades, of which garment businesses are among the most recognizable.
Earlier this year, the Department of City Planning unveiled the launch of their new Business Process Reform (i.e. BluePRint). Over the past 18 months, the Department worked with dozens of practitioners and stakeholders in the public review process to improve the way the private sector does business with City Planning. (Full Disclosure: several authors of this blog contributed to the effort.)
With the goal of improving the land use and environmental application review processes, the Department has standardized applications and the drawings, maps, attachments, and all other documentation associated with these applications. This is a huge step forward and will remove the second-guessing and seemingly endless revisions previously necessary to bring an application to the point of certification. Additionally, BluePRint aims to streamline the actual review of these documents to create a predictable and efficient pre-certification process. Again, bringing clarity to a previously unpredictable process will go a long way to improving the development process in New York City.
For a complete description of BluePRint, please see the Department’s explanation here.
In concept and in execution, we are optimistic about the all-around benefits anticipated from BluePRint. We believe in the Department’s sincerity at fixing what has been a long-standing problem. If the reforms are implemented and carried out as planned, all stakeholders – both in the public and private sector – will be better off.
That said, it appears that BluePRint has two major holes. Continue reading