Archive for the ‘Development’ Category

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.


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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A Blueprint with Two Holes?

Eldad Gothelf, LEED AP Urban Planner, Herrick's Land Use Group | August 6, 2012 in Development,Planning,Zoning | Comments (7)

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. (more…)


City Planning Looks to the Future with East Midtown Zoning Proposal

Jennifer Dickson, Urban Planner, Herrick's Land Use Group | July 18, 2012 in Development,Planning,Rezonings,Zoning | Comments (2)

Last week, at a meeting of Community Board 5, City Planning finally released details of a much anticipated zoning proposal for East Midtown. The proposal, which could be the last major rezoning initiative of the Bloomberg administration, concentrates on the blocks around and north of Grand Central (the boundaries stretch roughly from Fifth Avenue to Second Avenue and from 39th to 57th Streets), which are already home to a number of high density office buildings.

The rezoning looks to incentivize property owners and developers to upgrade the area’s office building stock by permitting new development at a significantly higher density than is currently allowed.  The new regulations may also incorporate a “district improvement fund” type program, similar to what already exists in Hudson Yards.  As part of this program, developers could contribute to a fund, intended to finance the construction of a pedestrian plaza on what is now Vanderbilt Avenue, in exchange for even more floor area.   Under today’s zoning, a limited number of property owners are permitted to purchase excess development rights from Grand Central, and that program might also be expanded under the new proposal. (more…)


Step Aside Philadelphia, Jersey City: The waterfront is now NYC’s Sixth Borough

Jennifer Dickson, Urban Planner, Herrick's Land Use Group | March 15, 2011 in Development,Environmental Issues,Green Issues,Planning,Waterfront | Comments (1)

Yesterday, Mayor Bloomberg and City Council Speaker Christine Quinn formally announced the release of the New York City Comprehensive Waterfront Plan, Vision 2020.  The new plan is very ambitious in its scope, envisioning the waterfront as an integral part of the city, or the “Sixth Borough,” as Planning Commissioner Amanda Burden describes it.

As we discussed in October, New York City’s Vision 2020 plan is indeed comprehensive.  The 192-page plan offers a wide range of strategies the City could employ to take better advantage of its waterfront, for both recreational and economic purposes.  It proposes new waterfront open spaces, as well as improvements to the waterways themselves and related infrastructure, such as dredging to accommodate more container ships and upgrades to the city’s sewer system.  In addition, the plan aims to address environmental concerns by making recommendations aimed at protecting wetlands, improving water quality, and addressing sea level rise and other climate change concerns.

Covering the entire report in one post would be ambitious, so ZONE instead plans to do a series of updates on the topic.  In the next few weeks, we’ll be looking at several of these issues in depth and exploring their potential effect on local land use and other issues relevant to you, our readers.

Until then, you can read more about the plan, or download a copy of the entire 192 page document, here.

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A Clear Message on Sustainable Housing?

Eldad Gothelf, LEED AP Urban Planner, Herrick's Land Use Group | October 22, 2010 in Affordable Housing,Development,Green Buildings,Green Issues,Real Estate Industry | Comments (2)

Earlier today, the Municipal Arts Society, as part of their Summit for New York City, held a conference on Sustainable Housing.

The panelists each had a few minutes to share their experiences. (more…)


The Comprehensive Waterfront Plan – Coming Soon to a Shoreline Near You

Jennifer Dickson, Urban Planner, Herrick's Land Use Group | October 8, 2010 in Development,Environmental Cleanup,Environmental Issues,Green Issues,Planning,Zoning | Comments (10)

The Department of City Planning is currently in the process of updating the City’s Comprehensive Waterfront Plan, which was originally published in 1992.  Local law requires that this update, which City Planning has entitled “Vision 2020,” be completed by the end of the year.  The Waterfront Plan is not to be confused with City Planning’s update to its waterfront zoning, which occurred last year and focused primarily on the design of the open spaces required when a private waterfront property is developed. (more…)


Foreclose, Then What?

Mitch Korbey, Partner, Herrick's Land Use Group | September 28, 2010 in Department of Buildings,Development,Landmarks,Tax Exemptions,Zoning | Comments (2)

So many sites are vacant or partially built – so many sites in trouble financially; so much to consider when considering seizing the distressed asset…

Zoning too?  Of course: (more…)


New York Is Twice the Size of LA…and Growing!

Mitch Korbey, Partner, Herrick's Land Use Group | July 30, 2010 in Development,Planning | Comments (4)

crowd

photo courtesy of streetsblog.org

Of course, we all know that the Big Apple is bigger than LA.  We are presently at just about 8.4 million, the highest population ever seen in the City’s history!  We also all know that we are more diverse and more dense than any other place in the nation.  The City’s Planning Department (a.k.a. New York’s Smartest) has a great wealth of population statistics http://www.nyc.gov/html/dcp/html/census/popdiv.shtml on the 5 boroughs.

We at ZONE are fascinated by several key facts: (more…)


Once a “Development”, always a “Development”? City loses lawsuit, subsequently aims to overhaul entire Zoning Resolution!

Eldad Gothelf, LEED AP Urban Planner, Herrick's Land Use Group | March 18, 2010 in Development,Litigation,Parking,Zoning Resolution | Comments (95)

161 E. 94th St.

Image from Google Streetview

In 2007, an owner of an upper east side townhouse submitted a proposal to the Department of City Planning requesting permission to convert the townhouse basement into a 1-car garage.  Doing so would require creating a 9’2” curb cut in front of the property in question.

The Department of City Planning rejected the application, citing Section 25-633 of the zoning resolution:

In the districts indicated, curb cuts are prohibited for residential developments on zoning lots having a width of less than 40 feet…

City Planning felt that this section disqualified the applicant, since the property: (more…)