by Stuart Beckerman1
In November
1997, the New York City Council adopted an amendment to the Zoning
Resolution of The City of New York (the "Zoning Resolution" or "ZR")
creating several new benefits available to properties covered by
the City's Landmarks Law.2 These
benefits supplemented and modified benefits in the Zoning Resolution
which have been available to landmarks since 1969, following the
enactment of the Landmarks Law, and since Penn Central unsuccessfully
sought a court judgment that the Landmarks Law was unconstitutional
as applied to Grand Central Terminal.3 These
zoning provisions can facilitate (i) a different, and perhaps larger,
building envelope than is otherwise permitted by law or (ii) uses
for the property other than allowed by the underlying zoning. The
Landmarks Preservation Commission ("LPC"), in return,
gets assurances that the landmark will be preserved and maintained
or, in the case of historic districts, that new construction will
be in harmony with the area's built context.4
The subject provisions of the Zoning Resolution
are dispensations from certain zoning requirements and have no effect
on the jurisdiction of the LPC under the Landmarks Law. As always,
LPC approval is required for any proposal to alter, construct or
demolish improvements on sites with designated landmarks or located
within historic districts.
The benefits in the Zoning Resolution
fall into three different categories of actions-as-of-right, authorizations,
and special permits. Each of these actions triggers a different review
procedure—as well as standard of review—by the City.
As-of-Right
An as-of-right action is the least burdensome
and most preferable from the owner's point of view because no variance
or special permit or any discretionary zoning approval from the City
is required. All that is required, from a zoning standpoint, is the
filing of an application with the Department of Buildings ("DOB"),
along with a set of drawings and zoning calculations, demonstrating
compliance with all applicable provisions of the ZR. Of course, since
LPC approval is required, if the proposal affects a protected architectural
feature, then a determination from LPC that the proposal is architecturally
appropriate is required.
As-of-right modifications of two types
of bulk regulations are available to property owners in historic
districts: (i) front yard5 and
(ii) minimum base height and street wall location.6 With
both of these as-of-right provisions, the extent to which DOB can
issue a permit for a modification varies between the requirements
of the underlying zoning district and the conditions on the adjacent
zoning lot.
The front yard modification is available
only in low-density residence districts. For example, much of the
Douglaston Historic District is located in an R1 zoning district,
in which front yards must be at least 20 feet deep. Many of the houses
pre-date local zoning and are located less than 20 feet from the
street line. This zoning provision enables owners to create enlargements
within 20 feet of the property's street line. Most important from
the City's point of view, it gives LPC the flexibility it needs to
approve a more appropriate development—whether it be an enlargement
or new construction—than is otherwise available under an as-of-right
scenario.
The street wall modification is available
in medium and high-density residential and commercial contextual
districts. Under this provision, the height of the street wall before
setback or the location of a street wall may vary between the requirements
of the underlying district and the existing conditions on an adjacent
lot. For example, the owner of a vacant lot in the Tribeca East Historic
District in Manhattan proposes to construct a mixed use building
with commercial uses on the lower floors and residential apartments
above. The underlying zoning, C6-2A, requires that the minimum base
height of a street wall be 60 feet before setback. If the street
wall height of an existing building on an adjacent lot is 40 feet,
the zoning dispensation in historic districts would enable the owner
to construct a building that sets back at a height of 40 feet, rather
than 60 feet. Since the lower commercial floors can have 100 percent
lot coverage, the reduced street wall height could facilitate a desired
redistribution of bulk upwards (subject to a floor area ratio of
6.02), up to the maximum permitted building height of 120 feet.
Authorizations
Authorizations are granted by the City
Planning Commission ("CPC") and are a discretionary approval
by which regulations may be waived or modified. They are not as-of-right
because CPC, prior to granting, must make certain findings relating
to impacts. However, authorizations are preferable to special permits
because the review procedure is relatively brief and there is no
required referral to the City Council, Borough President or the Community
Board.7
The ZR includes two authorizations available
to properties covered by the Landmarks Law, both involving waivers
of regulations relating to residential conversions of non-residential
buildings in Manhattan. One allows CPC to waive a requirement that
floor area, within the building or elsewhere in the neighborhood,
be preserved for non-residential uses. The applicable zoning districts
intersect with the Ladies Mile Historic District, which extends from
East Chelsea to Broadway south of 24th Street.8 The
second authorization permits CPC to waive certain restrictions on
the location of residential uses and artist dwellings in Soho and
Tribeca.9 As a condition of
approval, a preservation and maintenance program must be established
for the landmark aspects of the building.
Special Permits
The third category of actions, special
permits, are subject to the uniform land use review procedure, or "ULURP," a
public review process mandated by the New York City Charter.10 ULURP
provides for review by Community Boards, Borough Presidents, the
City Planning Commission and the City Council, and can take up to
seven months from the date the application is certified as complete.
To compensate for the procedural requirements, the special permits
available to landmarked properties provide potentially enormous benefits,
such as the ability to transfer development rights beyond the boundaries
of one's zoning lots or modifications of the most basic of use regulations,
such as allowing residential uses in a manufacturing district.
There are three special permits available
city-wide to owners of property developed with a designated landmark
or located in an historic district. One special permit allows for
the modification of all use and bulk regulations, except floor area
ratio, for existing buildings covered by the Landmarks Law.11 Examples
of the special permit's applicability include waivers of the prohibition
against retail uses on the ground floor in Soho; waivers of the prohibition
against residential conversions in manufacturing zoning districts
in the Fulton Ferry Historic District; and modifications of height
and setback requirements to facilitate enlargements to landmarked
buildings. The special permit requires that a program be established
for the preservation and continued maintenance of the landmark.
Another special permit, which was created
in 1997, allows for the modification of bulk regulations, except
floor area ratio, on a vacant lot in an historic district.12 In
October 1998, the first such special permit was granted for a new
mixed use building on the east side of 6th Avenue between 22nd and
23rd Streets within the Ladies Mile Historic District.13 CPC
permitted a modification of the height and setback and lot coverage
regulations.
The third special permit available city-wide
allows, in all but low-density residential and commercial districts,
the transfer of development rights from landmark sites to adjacent
lots, including zoning lots that are across the street or intersections.14 In
certain high-density commercial districts, the universe of adjacent
lots can be expanded by way of a chain of intervening properties
in the same ownership. This special permit marks an exception to
the requirement that floor area generated by the area of a zoning
lot may only be used on that particular zoning lot. In a large swath
of the Special Midtown District, in certain C5 and C6 commercial
districts, owners of landmark sites get the added bonus of an increase
of 1.0 in permitted floor area ratio on the landmark site.15
Finally, there are special permits available
to properties in the Grand Central and Theater Subdistricts of the
Special Midtown District, and in the South Street Seaport Special
District which significantly expand the distance from landmarks across
which development rights can be transferred and which, under certain
circumstances, confer additional benefits.16
Endnotes
1 Stuart
Beckerman, is of counsel to the Law Office of Carole S. Slater. Mr.
Beckerman formerly served as Deputy Counsel to the Land Use Division
to the New York City Council and as Deputy Counsel to the New York
City Board of Standards and Appeals.
2 New
York City Charter, Chapter 74, and New York City Administrative Code,
Title 25, Chapter 3.
3 In
Penn Central Transportation Co. v. City of New York, 438 U.S. 104,
129, 98 S.Ct. 2646 (1978), the U.S. Supreme Court held that New York
City's Landmarks Law was constitutional, at least as applied to Penn
Central's ownership of Grand Central Terminal. The Court noted the
availability of a zoning special permit to owners of landmarks enabling
the transfer of unutilized development rights above parcels improved
with landmarks to contiguous and non-contiguous parcels and indicated
that there were numerous parcels to which Penn Central could transfer
its unutilized development rights pursuant to this special permit.
4 For
the purpose of this article, the phrases "landmark" and "historic
district" refer to properties so designated pursuant to the
City's Landmarks Law.
5 ZR § 23-45.
6 ZR §§ 23-633
and 35-25.
7 See
description of ULURP in discussion on special permits.
8 ZR § 15-20(b).
In September 1999, the City Council adopted a zoning map amendment
which effectively eliminated the preservation requirement in much
of Chelsea.
9 ZR §§ 42-142
and 111-23.
10 New
York City Charter Section 197-c.
11 ZR § 74-711.
12 ZR § 74-712.
13 ULURP
Application C 980563 ZSM, granted by CPC on October 14, 1998.
14 ZR § 74-79.
15 ZR § 81-211.
16 ZR §§ 81-63,
et seq., 81-747, and 88-00, et seq.
Copyright© The Association
of the Bar of the City of New York 2000.
