The Zoning Resolution of the City of New York (the “ZR”), which includes hundreds of pages of text and zoning maps governing what uses and bulk are permitted on every block in the City, was formally adopted on December 15, 1960 – over 60 years ago. In a city characterized by constant, dynamic growth, the ZR was practically outdated almost from the moment of its inception. The zoning for many areas of the city has not been amended for decades, if ever and even if amendments have occurred may no longer make sense in terms of the city’s current needs and concerns. Areas where housing is sorely needed may maintain manufacturing designations. Other areas where commercial uses abound may severely limit retail uses. Still other areas remain seriously underdeveloped relative to the supporting infrastructure, or fail to account for new infrastructure or services, so the underlying zoning districts fail to encourage appropriate development.
Property owners seeking to develop their properties are faced with several discrete options regarding what they may build. The first option would be to develop their property “as-of-right,” involving no discretionary approvals from the City. An as-of-right development would involve consulting with an architect or engineer, designing a building that conformed to the ZR, the Building Code and other relevant laws, and filing plans at the NYC Department of Buildings (“DOB”). Typically, these plans would be reviewed by a DOB examiner, and occasionally would be audited by a more senior DOB staff member. After resolution of any objections and a determination of compliance with applicable regulations, the plans would be approved by DOB, permits would be issued, and construction would commence. The majority of construction projects approved in the City are as-of-right.
However, if an owner wants to develop their property outside of what is permitted in the ZR, they require some form of discretionary relief from the City. One form of this relief is through zoning variances, which are granted by the Board of Standards and Appeals (“BSA”). For a typical BSA variance application, an owner must have a unique property, and that uniqueness must give rise to a financial hardship in developing the property as-of-right.1 For example, an owner has an old manufacturing building in a manufacturing district. The building is outdated for modern manufacturing use, has an inadequate elevator and insufficient parking, and is surrounded by residential uses. For a BSA variance, the owner would need to prove that if forced to use the building for manufacturing use, the property would not earn a reasonable return, and that a use variance, such as one permitting residential development, is appropriate. BSA variances provide an optimal form of relief when an owner has site-specific development issues that prevent them from realizing a reasonable return.
But what happens if a property does not have any particular uniqueness that would result in financial hardship? What happens if an owner has a good-sized lot or a very usable building, and simply wants to develop in a way that is not permitted by the underlying zoning district? It is then that an owner should likely consider a rezoning.
The first major difference between variances and rezonings is the agency involved. A variance is obtained through an application at the BSA, while a rezoning is obtained through an application to the City Planning Commission (“CPC”), in conjunction with their staff, the Department of City Planning (“DCP”). While a BSA variance will result in stamped approved plans and conditions to allow a specific development on a property, a CPC rezoning will result in a new zoning district for the property and sometimes nearby properties as well. Once the rezoning is effective, whatever an owner wants to do with a property that is permitted by the regulations for the new zoning district is acceptable.
Rezonings are not granted, however, because property owners desire them. There must be a land use rationale that supports such a change to the City’s land use policies. There can be a number of different rationales for rezoning applications. One type of rezoning occurs where a parcel of land is on a block that is incompatible with the underlying zoning district. For example, a block is zoned M1-1, which only allows light manufacturing and commercial uses, yet 80% of the properties on the block are used for residential purposes. Residential uses on this hypothetical block were established before the zoning district was designated, which could have been as far back as 1960, would be considered legal, non-conforming uses, more commonly referred to as “grandfathered” uses. When the Zoning Resolution went into effect, , the City may have felt that more manufacturing was warranted on that particular block, or there may have been other extraneous factors dictating the choice of zoning district. Whatever the reason, time and opportunity did not result in development that justified the manufacturing designation.
In a case like this, an applicant may approach DCP seeking to rezone the block or a portion of the block, so that the zoning district will reflect what is actually on the ground. A rezoning like this may be a win-win-win. The owner will win because his or her property will be rezoned to a district where development makes more sense for them. The City will win because the owner (at its own expense) will be aiding CPC by “fixing” the zoning map to better reflect the actual land use in a particular area. And the neighboring property owners whose properties are included in the rezoning will win because they will now be able to make alterations and even enlargements to their properties, where before they could make only limited alterations as non-conforming, or “grandfathered” uses. Since 2016, an additional incentive for such rezonings is that the ZR now requires that, in middle- and high-density districts, a percentage of residential square footage created by such rezoning will be used for Mandatory Inclusionary Housing (“MIH”), with maximum rents set by the City for the life of the development.
Another type of rezoning focuses more on economic development. Even if a proposed rezoning seems inconsistent when looking at surrounding land uses, some rezonings may still be appropriate if the rezoning will result in a clear economic benefit to the surrounding area. Rezoning for economic development may be appropriate if, for example, an area may be in need of job creation, or contain a multitude of vacant sites, or one side of a street is being developed while the other side has not experienced any growth. Whatever the case, an applicant can approach DCP to see whether the City would entertain a rezoning with a focus on spurring economic development. While DCP will still look at rezonings in terms of the character of the surrounding area, and will want to generally remain sympathetic to the context of the surrounding neighborhood, the City has expressed a willingness to entertain rezoning applications based purely on an economic development rationale.
A third significant type of rezoning, often reflecting the concerns of community residents, seeks to more narrowly limit future development to preserve the perceived character of the neighborhood and hence limit the redevelopment options available to property owners.
The first step in the rezoning process is to arrange an informational interest meeting with the local borough office of DCP. That meeting is typically attended by the potential applicant, their land use attorney, and an architect or engineer. The director and or the deputy director of the DCP borough office may attend, as well as the staff planner responsible for applications within the affected community district. The applicant will present their proposal, showing what the zoning map looks like both before and after the proposed rezoning, as well as basic illustrative plans depicting what the applicant would like to develop on the property should the proposed rezoning be approved. The DCP staff at the meeting will discuss the proposed rezoning, including the boundaries and size of the rezoning area, may raise issues with the proposed rezoning for the applicant to consider and/or address and may recommend alternatives to the proposed zoning district. They may also request that the applicant meet with local community groups, as well as the affected councilmember, to see whether they would support the rezoning.
After the informational meeting, the applicant will prepare and submit a Pre-Application Statement (the “PAS”), which is a standard DCP form that requests more detailed information about the proposed rezoning and the development it would facilitate. Once the PAS is submitted to DCP, the staff planner will schedule and coordinate an interdivisional meeting, at which representatives from other offices within DCP, including Technical Review and Environmental Review, will be present. After that meeting, the applicant will proceed to submit a complete draft Land Use application, which will include maps, illustrative plans and a legal description of the rationale for the rezoning, among other items. The owner will also need to engage an environmental consultant to prepare a Reasonable Worst Case Development Scenario (“RWCDS”) and an Environmental Assessment Statement (the “EAS”) or similar documentation, which describe the likely development and potential environmental impacts of the rezoning, and which are typically required as part of the City Environmental Quality Review (“CEQR”) application, which is reviewed simultaneously by DCP.
What follows will often be a detailed back and forth between DCP and the applicant in an effort to “fine-tune” the application. After several rounds of comments and responses, and once Environmental Review has signed off on the CEQR application, the application will go to the City Planning Commission formal “certification” that the application is complete after which the application will proceed through the City’s Uniform Land Use Review Procedure (“ULURP”). ULURP sets forth a specific statutory timeframe for public review of a rezoning application. After an application is certified, the local Community Board has 60 days to issue their recommendation, the affected Borough President has 30 days to review, the City Planning Commission has 60 days to vote and then the City Council has 50 days to vote. Once an application has been certified as complete, an applicant will have a determination on the rezoning within approximately 7 months.
Applicants interested in pursuing a rezoning should know that in the last 20 years, the City has approved hundreds of rezonings, rezoning portions of tens of thousands of blocks, which is more than one-third of all of the land in New York City. And for the right property, with the right community support and assistance from the right land use professionals, a rezoning is an excellent option to turn underutilized land into property with great development potential.