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Sahn Ward Coschignano, PLLC


Daniel H. Braff

Why "As of Right Zoning" is Critical for New York City's Continued Growth

A few years ago in a real estate and land use practice bulletin, we compared and contrasted area variances under New York State law with area (or bulk) variances under New York City law. We explained that the threshold to obtain a bulk variance in New York City is much higher and significantly more burdensome than the threshold to obtain an area variance under state law, and that, generally, bulk variances in New York City are treated similar to use variances in villages, towns and cities throughout the rest of the state. As extremely difficult as it is to obtain a use variance outside of New York City, it is likewise difficult to obtain a bulk variance in New York City. We noted that it is not surprising that the New York City Board of Standards and Appeals, the city's zoning board, sees a relatively small number of new bulk variance cases each month, considering it has jurisdiction over all five boroughs.

However, while area variances may be more cumbersome in New York City, New York City has something that villages, towns and cities throughout the rest of the state rarely have – "as-of-right" zoning. What may come as a shock to land use attorneys practicing outside of New York City is that the large majority of development throughout New York City is completed "as-of-right." In other words, if a developer wants to build a shopping center with a large accessory parking lot in Queens or a 50-story office tower in Manhattan, and the respective development complies with the New York City Zoning Resolution and the New York City Building Code, the developer will receive a building permit from the Department of Buildings and may commence construction. No discretionary review is required. This is in contrast to the rest of the state, where villages and towns will typically require discretionary site plan review by a local planning board for large projects, and, in many instances, small projects as well.

General City Law, Section 27–a; Town Law, Section 274–a; and Village Law, Section 7–725–a grant cities, towns and villages the authority to conduct site plan review. Under site plan review, the municipality can review the design, arrangement and uses of the land to be improved, and analyze the project’s physical, social and economic effects on the community. While site plan review may not be reserved for all uses of land within a municipality under such municipality's land use controls, site plan review can be required for both small– and large–scale projects such as gas stations, drive–through facilities, office buildings, shopping centers, apartment developments and planned unit developments. General site plan review is focused on means of access, parking, landscaping, buffers, architectural features, pedestrian safety, location of structures, impact on adjacent land uses and other elements related to the health, safety and general welfare of the community.

New York City does not have site plan review. If a project complies fully with the Zoning Resolution and the Building Code, and no discretionary approval is necessary, such as a variance, special permit, or landmarks approval, the only review occurs at the building permit phase. There is no municipal board with discretionary authority determining whether the site layout is appropriate, whether landscaping is sufficient or whether there is an impact on adjacent land uses. All controls are imbedded in the Zoning Resolution and the Building Code, and, once compliance therewith is established, the city must issue the building permit. This system adds both flexibility and accelerated development, and is critical in maintaining the level of growth and modernization necessary for New York City to be a thriving economic center.

It is not surprising that site plan review is more appropriate outside of New York City. First, substantial variations in topography, lack of a consistent street grid, and sewer location make it more difficult to have a single set of rules apply within a single zoning district. In a village on Long Island, it is possible that, within a single zoning district, the topography, street layout, utilities and the location and access to homes could vary substantially, making a case-by-case site plan review more appropriate. This is typically not the case in the city, where each block is laid out similar to the next. Second, case-by-case site plan review is more practical when you have a limited number of development projects and less detailed zoning regulations in place. Given the number of development projects in the city at a given time, development in the city would come to a screeching halt if development projects were required to go through site plan review. Because site plan review is not practical in the city, all requirements must be imbedded in the Zoning Resolution, including those requirements typically reserved for site plan review outside of the city. It is no surprise that the Zoning Resolution is thousands of pages long.

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