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