Land use

Zoning and planning permission

Which authorities regulate real estate zoning in your state and what is the extent of their powers?

Each municipality has its own zoning procedures, under a broad set of state law principles. The municipality’s governing body first establishes a comprehensive plan, breaking the municipality into zones, each allowing only certain development and uses. The plan also controls such characteristics as square footage, height, open space requirements, and minimum distances between buildings or to property lines. In addition, historic landmark laws restrict development wherever they apply.

New York City adopted its first zoning resolution in 1916, responding to development in the financial district that cast shadows and created a canyon effect. In 1961 the city rewrote its zoning resolution. Since then, that law has grown in size, complexity, and micromanagement. It now exceeds 1,300 pages. The city summarizes how it works in a Zoning Handbook of 216 pages, which is well written, clear (though complex), and profusely illustrated.

When a property owner seeks a building permit, the city department of buildings (or similar authority outside the city) checks to determine, among other things, whether the proposed construction complies with existing zoning.

What are the eligibility, procedural and documentary requirements to obtain planning permission?

If the department of buildings or a similar authority confirms that a proposed development fully complies with the zoning resolution and local codes, then the developer can proceed “as of right,” with no special permissions, subject to any historic landmark restrictions that apply.

Some projects, especially larger ones, require discretionary approvals, variances, and even re-zoning. In the city, that often triggers a public review process called the Uniform Land Use Review Procedure, which takes at least 200 days. The ULURP clock doesn’t start ticking until the applicant has assembled a comprehensive application that the department of city planning certifies as “complete.” Then the proposal goes to the local community board (local residents who often oppose any change in anything); the borough president; and the city planning commission. Hearings can occur at each stage. If CPC approves the application, it goes to the city council, which can hold more hearings and overrule CPC. The city council traditionally follows the preferences of the council member from the district where the project would be built. This tradition gives local and vocal opponents of any development project an easy and tempting path to derail it.

The ULURP process includes a requirement for environmental review under the state Environmental Quality Review Act. Before any New York government agency takes an “action” of certain types, it must consider the environmental consequences of that action, and any reasonably available alternatives. The courts require the approving agency to take a “hard look” at environmental implications. Opponents of any project regularly argue in court that the environmental review document, even if hundreds or thousands of pages long, did not adequately consider some newly identified environmental consequence.

What is the appeal procedure for planning decisions?

In New York City, any determination the Department of Buildings makes on zoning compliance can be appealed to the Board of Standards and Appeals. The appeal must be filed within 30 days after the determination.

Outside the city, zoning decisions can be appealed to a Zoning Boards of Appeals. These appeals must typically be filed within a short time, often 60 days.

Certain zoning determinations can be challenged in court for being “arbitrary and capricious,” in a special proceeding under New York Civil Procedure Law and Rules article 78. This action must be commenced within four months after the determination.

What are the consequences of failure to comply with planning decisions or regulations?

Local governments take planning and zoning very seriously, issuing meaningful fines for non-compliance. In the worst cases, the government can require the offender to demolish non-compliant parts of the building.

Historical and cultural preservation

What state and local regimes govern the protection and development of historic and cultural buildings?

The state has a historic preservation agency, which mostly supports local historic preservation activities. In the mid-1960s, in response to destruction of the architecturally distinguished Pennsylvania Station, the city enacted a landmarks preservation law. Over the decades, landmarking grew. Today, over 25 per cent of the properties in Manhattan are landmarked, either on their own account or because they lie in landmarked districts. Those districts include about 100 parking lots and vacant lots. In large swaths of Manhattan, over 70 per cent of the properties are landmarked.

For any construction affecting a landmarked property, an owner must navigate not only the department of buildings but also an entirely separate regime at the landmarks preservation commission, which often simply disapproves projects. The cost of dealing with LPC often exceeds the construction cost of small projects. Extensive landmarking in the city is cited as a cause of the city’s chronic housing crisis.

State and local government expropriation

What laws and regulations govern the expropriation of property by state and local authorities?

New York’s Eminent Domain Procedure Law defines the process by which all jurisdictions in the state acquire real property for public use. The process moves quickly. An objecting property owner can rarely prevent expropriation, but may litigate to seek a larger award than first offered.

What is the required notice period for expropriation and how is compensation calculated?

The government agency must give notice to the landowner and then conduct a hearing to determine whether the taking is for a “public use” and how the government’s proposed project would affect the environment. Within 90 days after the public hearing, the condemning authority must publish its determination and findings from the hearing. The property owner will then have only 30 days to challenge the determination and findings in appellate court.

Expropriation proceedings allow few challenges by property owners. The most common one relates to whether the condemning authority took an adequately “hard look” at environmental concerns. The property owner can also challenge whether the government will use the property for “public use.” New York defines that term very broadly. For example, it can include acquiring one private owner’s property to sell or lease it to another private owner to achieve some perceived public good, such as neighborhood improvement.

Any property owner faces an uphill battle on challenges to the validity of an expropriation. The property owner can, however, more readily challenge the government’s payment for the expropriated property. The US Constitution requires the government to pay fair market value—the amount a bona fide buyer would pay for the property under ordinary circumstances, ignoring the project that drives the expropriation.