Why “As of Right Zoning” is Critical for New York City’s Continued Growth

Land Use

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.

Posted by Daniel Braff

The Ins and Outs of Public Parking Garages in the Manhattan Core

Land Use

All of us take for granted the availability of garage parking in Manhattan. Yet, the New York City Zoning Resolution regulates public parking garages under a very complex set of provisions. In commercial and manufacturing zoning districts, public parking garages are permitted as-of-right or by special permit, depending on the specific district and the size of the garage. However, within the Manhattan Core, which is defined as Manhattan south of 96th Street on the East Side and south of 110th Street on the West Side, public parking garages are governed by a separate set of regulations.

The Manhattan Core parking regulations, originally established in 1982, were enacted in response to the Federal Clean Air Act to discourage vehicular trips to and from the Manhattan Core. Among other things, these regulations removed the minimum required number of parking spaces for accessory garages serving a particular development, placed a cap on the number of parking spaces permitted for accessory garages, and required that all public parking garages of any size and in any district within the Core obtain a special permit from the City Planning Commission. This special permit, which still exists today for some public parking garages outside of the Manhattan Core, focuses more on the impact of the parking facility on the surrounding area, including the effects on traffic safety and congestion.

In 2013, the Manhattan Core parking regulations were amended to, among other things, eliminate the distinction between public and accessory parking garages within the Manhattan Core, and to establish a new special permit. Under these amendments, new accessory parking garages up to a certain maximum number of spaces and existing accessory garages of any size that operate under a Department of Consumer Affairs (DCA) license (existing prior to January 1, 2012) are permitted to operate as public parking garages. This change allowed a significant number of older accessory garages that had been operating illegally as public parking garages to become legal, subject to the rights of tenants to take back spaces. Moreover, the parking spaces in new accessory garages could be utilized by the public, reflecting the need for all parking facilities, public and accessory, to serve the local neighborhood.

Furthermore, the 2013 amendments included a new special permit for all public parking garages (and accessory parking garages where the number of accessory parking spaces exceed the maximum permitted) in the Manhattan Core. Unlike the prior special permit for public parking garages in the Manhattan Core, the findings required under the new special permit focus on whether the number of spaces proposed is appropriate. In other words, applicants must establish the need for the parking spaces in the surrounding community. As a result, special permits for public parking garages in the Manhattan Core are more difficult to obtain than special permits for public parking garages outside of the Manhattan Core, where a showing of need is not required. There have only been a handful of applications under this new special permit. Most have been granted on the basis of the need to meet residential growth in the neighborhood. In granting these special permits, City Planning found that the number of proposed parking spaces is reasonable and not excessive in relation to recent trends in proximity to the proposed parking facility with regard to the increase in the number of dwelling units and the number of off-street parking spaces. The applicants in these cases analyzed residential developments and current and future parking facilities in the one-third-mile radius of the project over a period of several years to support this finding.

Posted by Daniel Braff

North Brooklyn Industry and Innovation Plan

Land Use

Manufacturing uses have faded in many areas of New York City, typically as a result of rezoning or as a result of a failure of manufacturing uses to compete with other more-profitable uses of land, such as hotels.  For example, some large sites that might otherwise have been developed for light manufacturing uses, or possibly creative or innovative tech uses, have been snatched up by hotel developers for new large hotels.  Changes in land values have encouraged hotel use over manufacturing use and have transformed the neighborhood in the process. Read the rest of this entry »

Posted by Daniel Braff

Zoning 100

Land Use

Zoning law turns 100 this year. New York City enacted the first comprehensive zoning ordinance to regulate the use of land in 1916. What’s the agenda for the next 100 years of zoning and land use law?

The broad purpose of zoning laws is to protect and preserve the public health, safety and welfare. From the time of the earliest enactments, comprehensive zoning meant laws to classify and separate different uses. For instance, zoning laws were designed to keep commercial, industrial and business uses in different districts, zones, away from residential uses. The purpose of these districts was to protect residential uses from the negative impacts of commerce and industry. Likewise, zoning laws differentiated within use categories. For instance, zoning laws created different residential districts so that multi-family uses would be situated in different geographic areas from single family uses. Further, single family uses were differentiated and separated by lot size and area. This pattern, known as Euclidean zoning, has served as the foundation for zoning as we know it today.

Yet, we now realize that strictly following the Euclidean zoning pattern is not fully serving current economic, social and community needs. Whether we invoke terms such as “Smart Growth”, “Transit Oriented Development”, “Sustainability”, “Mixed-Use Development” or “Work Force Housing”, the end result is that we need to re-think how we organize our land use patterns and classifications. The strict separation of uses is not necessarily the best planning for 2016 and the next 100 years of zoning. With proper safeguards, having different uses in the same vicinity and, indeed, the same location and zoning districts can actually advance important goals, such as conserving resources, making public transportation more desirable, advancing the use of alternative energy sources, and promoting commerce and economic development.

These goals require new thinking and new laws. We can have discrete communities, and also have a mixture of uses to create vibrant downtown areas, and promote local businesses. We can have shopping malls and neighborhood stores. We can have industrial and service uses in reasonable proximity to one another. We can have large and small lot residential development. But, we need the legal foundation to make it all work. That will be the job of the zoning bar, land use planners, and municipal officials as we think ahead to zoning 200.


Posted by Michael Sahn

Will Solar Plants Deliver On Long Island

Land Use


Even before the planning, construction and closing of the Shoreham nuclear plant, the debate has gone back and forth on the best way to provide power to Long Island.  The latest big deal, so to speak, is the potential for solar power to supply energy needed to sustain Long Island, and fuel growth.  But, is this a viable energy source?  As reported in the Wall Street Journal in the June 13-14 edition, at page B1, some types of solar plants have failed to deliver.  Solar technology is still a work in progress.  Here are some issues to think about as LIPA, PSEG, and local municipalities consider making provision for solar farms and plants: Read the rest of this entry »

Posted by Michael Sahn

Regulating Drones – New Municipal Laws Are Coming

Land Use

In April, I wrote on the trend nationwide for municipalities to enact laws regulating drones.  The Town of Huntington has now, in fact, commenced review of a local law to regulate drones, which are called “Unmanned Aircraft Systems” in the Town’s law.  Soon, in my analysis, most municipalities on Long Island will adopt their own laws.  Municipalities will adopt these laws notwithstanding the federal pre-emption of regulation of the navigable air space higher than 400 feet from the ground.  The issues are too compelling to ignore:  intrusion on the right of privacy, interference with local law enforcement, impact on the public health safety and welfare from unmanned aircraft, the proper scope of using drones for commercial purposes, and the rights of residents to be free of excess noise, and visual impairment.  And these are only a few of the concerns.  As the trend continues, more updates will follow.


Posted by Michael Sahn


Land Use

Regulating the flying of drones is becoming a topic of interest and concern for municipalities. Municipalities around the country are beginning to enact laws regulating the flying of drones. These regulations are effective below the navigable air space, that is, below 400 feet above ground level. The navigable air space above 400 feet is under the jurisdiction, regulation and control of the Federal Aviation Administration. Read the rest of this entry »

Posted by Michael Sahn

Sprinkler System Notices Now Required in all Residential Leases

Land Use

A recent amendment to the New York State Real Property Law (the “RPL”) took effect on December 3, 2014, requiring all residential leases to include a notice to the tenant as to the existence or non-existence of a maintained and operative sprinkler system in the leased premises.  The law is codified as § 231-a of the RPL and is titled “Sprinkler system notice in residential leases.”  While the law defines the term “sprinkler system”, it does not define the terms “premises” or what constitutes a “lease”.  The law is effective throughout the entire state of New York and it does not provide any exceptions for premises that are regulated or controlled by the government.

Section 1 of the new law states, “Every residential lease shall provide conspicuous notice in bold face type as to the existence or nonexistence of maintained and operative sprinkler system in the leased premises.”  All the law specifies is that the notification must be in bold print; it does not state what the precise notification language should be.

The amendment is ambiguous as to the definition of a lease.  Most lease agreements call themselves “leases” but there are other landlord-tenant designations that may also be effected in unanticipated ways.

One issue raised in a recent New York Law Journal article by attorneys Adam Leitman Bailey, Esq. & Dov Treiman, Esq., is how does this law affect proprietary leases for a cooperative corporation development? The by-laws of most cooperatives require that the corporation’s proprietary leases be identical to one another.  While residents of a cooperative are shareholders of the cooperative corporation, they are also tenants in a conventional landlord-tenant relationship.  Because the new law requires that all “leases” entered into on or after December 3, 2014, include the sprinkler notification language, in order to ensure all proprietary leases remain identical, any leases entered into prior to that date would need to be amended to include the statutorily required notice.  Furthermore, since the law states that the notification must be in bold face type, it will not be enough for the board of directors to pass a resolution stating that all leases are “deemed” amended to include the required language; all of the leases will have to be re-issued with the bold-faced notification language and executed by each individual “tenant” of the cooperative.

Another question is whether an agreement that calls itself a “license” would fall under the law. Agreements that call themselves “licenses” are difficult to draft and often contain provisions that mirror those in a lease agreement.

Furthermore, this law may also have an unintended effect on tenants wishing to sub-let their residences.  Section 3 of the law states that if the leased premises contains a maintained and operative sprinkler system then “the residential lease agreement shall provide further notice as to the last date of maintenance and inspection.” It is highly unlikely that a tenant would have access to the maintenance and inspection history of the sprinkler systems servicing their residences.  This new law may provide Landlord’s with the ability to deny a potential sublease agreement for failing to include this information.

Another question raised by this amendment is how will it be enforced, and what will the punishment be for violating it?  Will leases without the required statutory language be deemed invalid and unenforceable? Will insurance companies attempt to deny coverage to those living under lease agreements for failure to include the sprinkler system notification?

This bill was passed by the New York State legislature as a reaction to the tragic deaths of three Marist College students who died in an off-campus house fire.  The memorandum in support of the bill states that, according to the Fire Sprinkler Initiative, the availability of smoke detectors, coupled with a maintained and operative sprinkler system installed in a residence decreases the risk of drying in a fire by over 80%.  The reason for the sprinkler system notification is to help prospective tenant’s make an informed decision about where they choose to live.  While the intentions of this law are worthy, this commentary highlights several of the potential unintended consequences of the law.  Hopefully the legislature will correct these issues through future amendments of the law.


Full Statutory Provision

RPL § 231-a. Sprinkler system notice in residential leases:

1. Every residential lease shall provide conspicuous notice in bold face type as to the existence or non-existence of a maintained and operative sprinkler system in the leased premises.

2. For purposes of this section, “sprinkler system” shall have the same meaning as defined in section one hundred fifty-five-a of the executive law.

3. If there is a maintained and operative sprinkler system in the leased premises, the residential lease agreement shall provide further notice as to the last date of maintenance and inspection.


Posted by Nick Cappadora

Court of Appeals Overturns Long Standing Precedent Regarding Off Street Parking Variances

Land Use

In Matter of Colin Realty Co., LLC, v. Town of North Hempstead, the Court of Appeals overruled case-law dating back over forty years, regarding the standards that apply to variances from off-street parking requirements.  2014 NY Slip Op. 07008 (10/16/2014).  The Court held that a zoning board must apply the standards for an area variance for off-street parking variances as long as the property is intended to be used for a purpose permitted in the underlying zoning district.  Use variance standards would only apply if the variance sought is in connection with a use that is prohibited or otherwise not allowed in the district.

This decision marked the first time the Court of Appeals has addressed the topic of off-street parking variances in over 40 years.  See Matter of Overhill Bldg. Co. v. Delaney, 28 N.Y.2d 449 (1971); Matter of Off  Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1972).

In Overhill, the Court of Appeals reversed the lower and appellate courts and upheld the zoning board’s denial for a variance from off-street parking requirements.  The petitioners in Overhill proposed to convert a portion of an existing ground floor garage space office use, which would have left an insufficient amount of parking spaces for the property.  Interestingly, the Court in Overhill believed the lower courts correctly applied the standards for an area variance, however in order to set aside the zoning board’s decision, the petitioners needed to demonstrate that the hardship created from the denial would leave them with no reasonable use for its property, a mere financial loss would not suffice.  The court extended the “hardship” requirement imposed in Overhill to the Off Shore case where the Court of Appeals similarly held that petitioners were not entitled to a variance from off-street parking requirements because they made no showing that the property cannot yield a reasonable return without increasing the burden on street parking in violation of the zoning ordinance.  In both Overhill and Off Shore, the use proposed was allowed, yet the court nonetheless imposed a “hardship requirement” which, in today’s practice, only applies to use variances.

To put in perspective the level of change that has occurred in this area of law since, Overhill and Off Shore, those cases were decided 20 years before the definitions of and criteria for evaluating use and area variances were codified.  (See L 1991, ch 692, eff. July 1992; see also L 1992, ch 248; L 1993, ch 208, eff. July 1, 1994).  Use variances are now defined as “an authorization…for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations,” and area variances are defined as “an authorization…for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations,” (see Town Law §267(1); Village Law §7-712(1)).  Before the standards for evaluating use and area variances were codified, the distinction between the two types of variances was based solely on decisional law.

The factual background of Colin involved an application before the Town of North Hempstead to place a 45 seat, full-service, dine-in restaurant in a storefront in Manhasset, New York.  Under the Town Code, restaurants were permitted in the Business A District (where the building was located), subject to the issuance of a conditional use permit.  The Town Code required the applicants to supply 24 off-street parking spaces as proposed (one space per every four seats plus additional spaces for employees and takeout service), requiring the applicant to seek a variance from the off-street parking requirements.  The Zoning Board granted the conditional use permit and the requested off-street parking variance, applying the standards for an area variance.  The Board noted that “the subject storefront is located in a preexisting non-conforming building…originally developed with no parking; [therefore a] parking variance is necessary to operate any business at the premises,” (emphasis added).  Colin Realty, the owner of a multi-tenant retail building next to the applicant’s property, commenced a hybrid CPLR article 78 proceeding/declaratory judgment action against the Town seeking to annul the Board’s determination.

The Supreme Court dismissed the action on the merits, concluding that a use variance was not necessary for the variance sought because the proposed restaurant was not a prohibited use under the Town Code.  Indeed, since restaurants were conditionally permitted in the zoning district, they were “deemed presumptively consistent with the basic character of the surrounding community.”  The petitioners in this case argued that the determinative factor in whether to apply use or area variance standards to a variance for off-street parking regulations, was whether the local code imposed off-street parking requirements based on an area/square footage (calling for an area variance) or based on the intensity of the use (calling for a use variance).

The Court of Appeals plainly announced its intention to overrule its previous precedent, stating in the first paragraph, “[w]e hold that a zoning board of appeals should evaluate requests for off-street parking variances by applying the standards for an area variance so long as the property is intended to be used for a purpose permitted in the zoning district. To the extent Off Shore suggests otherwise, it should no longer be followed and is overruled.”

For zoning and land use practitioners, the aim of this case is to make clear which standards a zoning board must apply when seeking a variance for off-street parking.  However, it also raises some important questions.  For one, the decision leaves open the issue of how to analyze an off-street parking variance for an applicant seeking to enlarge a legal non-conforming use which was allowed when built, but through amendments to the zoning regulations, has become prohibited.  In this scenario the underlying use remains the same, and was permitted when built, but by enlarging a non-conforming use that has since been prohibited, would use variance standards apply to such a request?  Another open issue concerns uses that require special use permits.  Would uses that require special use permits be deemed “permitted” and thus subject to area variance standards?  The use in Colin required a conditional use permit.  It remains to be seen whether uses that require special use permits will be treated in the same manner.

Follow our firm’s blog for future updates on this topic.


Posted by Nick Cappadora

Opposing Municipal Approvals– Proximity Matters

Land Use

Two recent decisions from the Appellate Division, Second Department have sent a clear message to individuals and organizations who seek to annul local municipal approvals: Proximity matters.

In Radow v. Board of Appeals of Town of Hempstead, the petitioners, who lived .69 miles away from the subject beach club, sought to annul a determination of the Board of Appeals issuing certain variances to the beach club owner Atlantic Beach Land Company LLC, arguing that the proposed construction would lead to overcrowding and congestion. 989 N.Y.S. 2d 914 (2d Dept. 2014). In Riverhead Neighborhood Preservation Coalition, Inc. v. Town of Riverhead Town Board, the petitioners, who resided at distances ranging from approximately .25 – .38 miles from the subject project, challenged the proposed construction of a regional shopping mall located in the Town of Riverhead based on traffic and environmental concerns stemming from the development. 2013 WL 801040 (2d Dept. 2013).

In both cases, the Second Department affirmed dismissal of the proceedings holding that the petitioners in each case lacked standing to challenge the approvals.  In order to establish standing, a petitioner must show that “he or she would suffer direct injury different from that suffered by the public at large”.  See Radow.  “Injury-in-fact” may be presumed by demonstrating close proximity to the subject property.  In the absence of such a showing, the petitioner must demonstrate the existence of an actual and specific injury which is distinguishable from the injury suffered by the community at large.

The petitioners in both cases failed to establish an “injury-in-fact” and the court found they lacked standing to challenge the municipal approvals.  In Radow, the petitioners were not entitled to a presumption of injury because they lived more than a half mile away from the subject property (which was not visible from their residence) and the court found their overcrowding and congestion concerns to be purely speculative and not specific or distinguishable from the concerns of the community at large.  In Riverhead Neighborhood Preservation Coalition, the individual petitioners resided slightly closer to the proposed development (.25 – .38 miles away), but the Second Department still held that they did not live close enough to be afforded a presumption of “injury-in-fact” since the proposed mall would not be visible from their homes.  Furthermore, the petitioners in both cases failed to prove that the traffic and environmental impacts from the proposed developments would cause them a specific injury distinguishable from those suffered by the community at large.

The question becomes, how can a petitioner satisfy the presumption of “injury-in-fact”, based on proximity alone?  The Second Department has held that living across the street from a proposed site is sufficient to grant the presumption, as is a 700 foot distance where the two lots border one another. Village of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 741 90 (2d Dept. 2007); Gaona v. Town of Huntington Zoning Board of Appeals, 106 A.D.2d 638, 638-39 (2d Dept. 1984).  The Third Department however has held that 530 feet is too remote to grant a presumption of “injury-in-fact”.  Oates v. Village of Watkins Glen, 290 A.D.2d 758, 760 (3d Dept. 2002).

Unfortunately, there is no bright-line rule or magical distance a petitioner must be located from a proposed development to have standing to challenge municipal approvals.  However, we do know that in Radow and Riverhead Neighborhood Prevention Coalition the Second Department was particularly concerned with the subject projects not being visible from the petitioners’ homes, as well as the absence of any injuries specific to the petitioners (e.g. safety, noise, traffic, pollution, or decreases in property value). Furthermore, even if a petitioner is able to establish an “injury-in-fact” and is found to have standing, this merely serves as “the admission ticket to judicial review” and does not guarantee success on the merits of petitioner’s claim.    Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of North Hempstead; Allen Avionics v. Universal Broadcasting Corp., 69 N.Y.2d 406, 416.  Thus, after a petitioner has cleared the standing hurdle, they must also be able to show that the approval granted by the agency was arbitrary, capricious, or is affected by some other legal infirmity in order to have it set aside.

The author acknowledges Michael J. Barone, Jr., J.D., for his contribution to this article.

Posted by Nick Cappadora