New Zoning Regulations Target the Use of Artificially Tall Mechanical Voids in Residential Towers

Land Use

Late last month, the city closed another creative zoning loophole exploited by developers of high-density residential towers in certain parts of New York City. In R9 and R10 zoning districts, commercial districts with R9 and R10 residential equivalents, and in some special districts, residential buildings can be developed as towers with generally no restriction on height. Essentially, the only bulk control that limits height is the amount of floor area assembled by the developer.

Of course, higher apartments mean better views and a jump in price. In order to achieve greater tower heights, some recent developments included artificially tall mechanical voids (i.e. voids that are taller than necessary to meet functional needs). These voids would exceed 80 feet in height, and would push up the building to make it taller. Developers would also cluster mechanical floors together in the lower or middle part of the building in order to maximize the height of these apartments. Since mechanical space does not count as zoning floor area, there is no incentive to minimize this space.

The new regulations target these artificially tall mechanical voids, and set forth that any mechanical floor exceeding a height of 25 feet will now count as zoning floor area. For tall mechanical space or stacked mechanical floors that exceed 25 feet, every 25 feet will count as another floor for zoning floor area calculations. For example, if a mechanical void is 100 feet in height, this will count as four floors and each will count towards zoning floor area. The restriction would not apply to penthouse mechanical space or below-grade mechanical space.

The new regulations also prevent improper clustering of mechanical floors by counting as zoning floor area, mechanical floors that are within 75 feet of one another and, in the aggregate, add up to more than 25 feet in height.

There was a mixture of support and opposition for this text amendment. However, most speakers at the hearings opposed the use of artificial mechanical voids to push up the height of a building. The debate was really about what is considered “excessive” or “artificial.” According to the City Planning Commission report, opposition speakers, including engineers, noted that, while mechanical space was traditionally located in the cellar or on the roof of buildings, industry practices are moving toward locating mechanical equipment throughout the building for better flood resiliency and energy efficiency. Some speakers believed that mechanical equipment requires more than 25 feet in height and that 30 to 35 feet would be a more reasonable threshold.

It appears that, in response to industry professionals, City Planning increased the threshold for mechanical voids to 30 feet. However, in approving the text amendment, the City Council further modified the threshold and brought it back down to 25 feet.

Posted by Daniel Braff

Reading Zoning Maps in New York City

Land Use, Municipal Law

As a land use and zoning attorney in New York City, I often counsel owners, developers, brokers, lenders, architects and other attorneys on how the city’s zoning regulations affect properties in the city. This might include, for example, a lender seeking a zoning opinion before providing construction financing on a new development, an architect asking me to confirm calculations in a zoning analysis, or a real estate attorney seeking zoning advice before closing on a client’s purchase. I also see many owners, developers, brokers, lenders, architects and attorneys forego the assistance of zoning counsel and complete their own zoning review and, quite often, zoning issues arise that require my assistance after the fact. While it may seem simple, one issue that I see quite often is a mistake in reading the applicable zoning map. Since determining the applicable zoning district for a property is one of the first steps when analyzing the zoning for a property in New York City, a mistake here can poison everything that follows.

New York City is divided into Residential (R), Commercial (C) and Manufacturing (M) zoning districts. The R, C and M zoning districts are further subdivided into districts that have different use and bulk requirements. Before you can analyze the relevant use and bulk provisions set forth in the Zoning Resolution of the City of New York with respect to a given property, you must first determine the applicable zoning district. A mistake here can be fatal to a project. Various property search websites, such as PropertyShark, might be a fine starting point for determining the zoning for a specific property, but I would not trust them beyond that. You must review the actual zoning maps.

There are 126 zoning maps for New York City. According to the Department of City Planning, each map covers an area of 8,000 feet (north/south) by 12,500 feet (east/west). The zoning maps show the underlying zoning district, as well as commercial overlays and special districts. Typically, the distance of a zoning district boundary line from the street is identified on the zoning map, but, other times, it is not. I would note that a site like PropertyShark may identify a property that is divided by a zoning district boundary, but it may not accurately determine how much of the property is in each zoning district, which is most critical. It may also fail to recognize, for example, that the property is in a limited height district or special district.

When the location of a district boundary is defined on the zoning map with a distance to the street, this distance controls. However, when a distance is not shown, you must fall back on Article 7, Chapter 6 of the Zoning Resolution of the City of New York. This section provides different distances for the boundary line depending upon the applicable zoning district and whether the boundary line is parallel to the short dimension of the block, or parallel to the long dimension of the block. The distances range from 100 to 200 feet from the nearest street and, in the case of a boundary line that is parallel to the long dimension of the block between two parallel streets, the boundary line is deemed to run down the center of the block. Where the boundary line runs between two streets that are not parallel and no dimension is shown, the boundary is the bisector of the angle formed by prolonging the street lines to an intersection. Lastly, where the boundary is shown within a street, that boundary is deemed to be located at the center of the street.

It is easy to see how mistakes can be made. Getting a commercial overlay boundary wrong by a few feet is one thing, but getting the boundary between a residential and manufacturing zoning district wrong can mean the difference between having a residential building or not. My advice: always review the actual zoning maps and, if necessary, have them drawn on a survey.

Posted by Daniel Braff

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