Once a “Development”, always a “Development”? City loses lawsuit, subsequently aims to overhaul entire Zoning Resolution!
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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:
(a) is within the districts indicated,
(b) is on a zoning lot with a width of less than 40 feet, and
(c) is a residential development.
The applicant took issue with this last point. And sued. On the grounds that his property was not, in fact, a residential development. “Development” is a defined term in the zoning resolution:
A “development” includes the construction of a new building or other structures on a zoning lot, the relocation of an existing building on another zoning lot, or the use of a tract of land for a new use.
The applicant argued that this definition did not apply to him, since he was applying for an existing building, not a new building. The State Supreme Court agreed and ordered City Planning to consider his application – which it eventually approved.
The lawsuit prompted City Planning to think about where it uses the word ‘development’ and where it uses the word ‘building’ – and the implications of both. The City is now in the midst of a major rewrite of the entire zoning resolution. They have looked at every section in the text where the word ‘development’ or ‘building’ is found and are evaluating the intent and possible interpretations.
As can be imagined, these words appear often throughout the thousands of pages of the zoning resolution. The updated text, currently being reviewed by the City and various stakeholders (real estate advocacy groups), will certainly have a major impact going forward. The zoning resolution cross-references often and can be circular. These changes will undoubtedly affect countless existing buildings and all future developments.
We are following this closely and will keep you posted on how the text amendment shakes out.
There seems no end to the ways of trying to get around the Zoning Resolution to approve a private parking garage in Manhattan south of 59th Street.
If it won’t fly as an alteration / enlargement, just call it a Virtual Development. In this case, in a R8B Contextual Zoning District.
From an unsolicited Letter of Final Determination from former Manhattan Borough Commissioner Magdi Mossad, P.E. dated September 2, 2009
“…The application, although filed and approved as an alteration/enlargement rather than a new building, complies with all provisions of the Zoning Resolution (“ZR”) that would be applicable to a completely new building. In other words, the proposed building complies with all use and bulk (i.e., yard size, floor area, open space, etc.) regulations that would constrain or benefit the builder of a new building. Consequently, the Department allowed the building to be treated as a development.
As a development, all units created under the application may count for calculating, among other things, the permitted number of accessory off-street parking spaces under ZR § 13-12. Pursuant to § 13-12, the permitted number of parking spaces shall not exceed twenty percent (20%) of the total number of dwelling units. Seven (7) dwelling units resulted from the application, and twenty percent (20%) of seven (7) equals one point four (1.4) parking spaces. Thus, one parking space is permitted.”
Comment.
All dwelling units of a development are deemed new dwelling units under
§ 13-12 but altered dwelling units do not so qualify.
In this case, If the project were an actual development, § 25-633 would have prohibited a curb cut.
One is remined that DOB is charged by the Zoning Resolution to enforce its regulations, not to invent novel ways that circumvent them.
The loophole in the legislation was not created by the property owner or their professional representives; but by the legislators and bureaucrats charged with composing the words of the legislation. If there is an advantage to be undertaken because of poorly written legislative language then change the regulation to match the intent but don’t blame the agency charge with interpreting the statutory language to interpret the meaning of the regulation as defined. The court’s decision was the correct decision.
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