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Reflections on New York City Zoning in 2017

Reflecting on 2017, what were some of the more challenging projects you worked on?
Two projects come to mind. First, after several years, we secured approval for the extension of term of a pre-1961 special permit for a public parking garage in Midtown Manhattan. The garage was developed pursuant to a special use permit from the City Planning Commission granted on October 2, 1957 for a term of 25 years. This special permit was extended several times, with the last extension expiring on October 9, 2002. The approval had lapsed for nearly 13 years by the time we filed for the renewal and extension of term. In order to secure the approval, we had to establish supporting precedent that the approval could be reactivated and extended, despite being expired for nearly 13 years. City Planning also required many improvements to the garage in order to bring it into compliance with current zoning laws, which added another layer of complexity.

The second project was a comprehensive zoning analysis we prepared for a property within the East Midtown Rezoning. The East Midtown Rezoning established mechanisms to increase base maximum permitted floor area through bonuses. Different bonuses apply throughout East Midtown, and a very complex set of requirements must be met in order to obtain the bonus, such as a minimum of 75 feet of clear frontage on streets having a width of 75 feet or more. What made the analysis challenging was that the property was part of a larger combined zoning lot, made up of multiple tax lots with different owners, and the zoning lot was bisected by a special district sub-area boundary. Within each sub-area, different bonuses apply. The zoning resolution has very complex requirements for when and how floor area can be transferred. Analyzing which bonuses applied to each portion of the zoning lot, whether the zoning lot meets the requirements to allow for the bonuses, and how bonus floor area could be distributed within the zoning lot, was very challenging.

Looking back at 2017, in what areas did your zoning practice grow and what trends did you see?
Fitness, fitness and more fitness. You would think that, with the explosion of boutique fitness in NYC, there would be a slowdown. That has not been the case, based upon the growth of my practice. In 2017 alone, we were retained by several large and small fitness owners/operators to secure a special permit from the NYC Board of Standards and Appeals. In NYC, gyms and fitness studios are considered physical culture or health establishments under the NYC Zoning Resolution. They are only permitted in certain commercial and manufacturing zoning districts by special permit issued by the NYC Board of Standards and Appeals. The applications are comprehensive, and require many meetings and hearings before the Board of Standards and Appeals and the local community boards. This has become a very busy part of my practice.

Self-storage is another area of growth. We were retained by several large self-storage operators to review potential sites for new self-storage use. This area of growth is not surprising, considering both the residential and commercial growth the city has recently seen, especially considering the amount of limited space available. Self-storage uses are permitted in manufacturing zones, and many developers have come to realize that they can get a better return from a self-storage use than from a manufacturing use at the same property. In order to preserve and support manufacturing uses, the city has proposed a zoning text amendment that will put new restrictions on self-storage use in manufacturing districts in Industrial Business Zones. This proposal is presently in front of the City Council and should be approved before year's end.

How are rising real estate prices in parts of the city affecting your practice?
Rising real estate prices seem to have pushed my practice further into the outer boroughs. I am consistently working on more zoning analyses for developers and zoning opinions for lenders, as well as analyzing potential rezonings in the outer boroughs. Areas that may have been ignored have now become prime areas for development. Fifteen years ago, it was Williamsburg; 10 years ago, it was Bushwick and Crown Heights, and now it is East New York and Ridgewood. In the outer boroughs, developers are considering rezoning property to high-density residential zoning districts to facilitate larger residential development. Depending upon the bump up in residential floor area requested, the city will require that all or a large portion of the units be designated as affordable housing. I expect this trend to continue, and to be an area of growth for my practice.

Looking at city zoning in 2018, are there any new regulations that an owner/developer should keep an eye on?
One proposal that I am watching closely is the proposed M1 Hotel Text Amendment. Similar to the self-storage text amendment, in order to preserve and support manufacturing uses within parts of the city, the city has proposed a text amendment that will only allow hotels within M1 districts by a City Planning special permit. There has been a proliferation of hotels in M1 districts in recent years. I get retained regularly to analyze the potential for new hotel development in M1 districts. I do expect the hotel lobby to put up a big fight. A City Planning special permit is a complex and time-consuming discretionary approval that falls under the Uniform Land Use Review Procedure.

Looking forward to 2018, what aspect(s) of your practice do you anticipate growing or keeping you busiest?
Until there is significant economic downturn, I don’t expect a slowdown in the development of fitness uses throughout the city. It seems that, every week, we have a new boutique fitness concept. I expect to handle more BSA special permit applications for these uses. I also expect more projects in the Bronx. As Manhattan, Queens and Brooklyn continue to get pricier, I am noticing more and more attention on the Bronx, particularly for affordable housing development.

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