Landmarking can be good for developers.

This article discusses the benefits of landmark and historic district designations, as are provided in New York City's zoning law. Too often developers and property owners overlook these benefits.

As-of-Right Modification of Front Yard and Streetwall Location, Height and Setback Requirements

A development is as-of-right when all that is required for a permit is an approval from the Department of Buildings based on submission of a set of plans showing compliance. No discretionary approval from the City Planning Commission is required. Of course, approval from the Landmarks Preservation Commission always is required.

In historic districts, underlying zoning regulations for front yards and streetwall height and setback may be modified as-of-right. The depth of a front yard in low-density residential districts and the location, height and setback of a streetwall in contextual residential and commercial zoning districts may vary between the requirements of the underlying zoning district and the existing conditions on an adjacent lot.

For example, a property owner in the Douglaston Historic District in Queens wants to build an enlargement in the front of his house to accommodate a new kitchen and an enclosed sun porch. To meet his spatial needs, he would like to extend into the front yard, leaving a depth of 10 feet to the street line. The zoning is R1, in which front yards are required to have a minimum depth of 20 feet. On an adjacent property, an 18th century house sits with a front yard that is only eight feet deep. The historic district designation gives the property owner the right to build his enlargement as-of-right. Of course, he is required to apply to the Landmarks Preservation Commission for a permit, most likely a Certificate of Appropriateness.

As an example of an as-of-right height and setback modification, 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 streetwall be 60 feet before setback. The streetwall height of an existing building on an adjacent lot is 40 feet. The zoning dispensation for historic districts enables the owner to construct a building that sets back at a height of 40 feet, rather than 60 feet, thus facilitating a desired redistribution of bulk upwards (subject to a floor area ratio of 6.0,2), up to the maximum permitted building height of 120 feet.

Authorizations to Modify Use Regulations in Loft Areas

The zoning law provides for City Planning Commission authorizations, a means by which regulations may be waived or modified without triggering the burdensome review requirements of the New York City Charter's Uniform Land Use Review Procedure (ULURP). Generally, the City Planning Commission is the only agency with review and approval authority over authorizations. Because discretion is involved, an environmental review may be required pursuant to New York State law. The authorizations to modify use regulations for buildings that are landmarked or within historic districts all require that a program be established for continuing maintenance for the building's preservation as evidenced by a report from the Landmarks Preservation Commission.

For residential conversions of existing loft buildings located in certain commercial and manufacturing districts in Midtown and Chelsea, where such buildings also are located in historic districts, the requirement that floor area be preserved for commercial and manufacturing uses may be waived by City Planning Commission authorization. The provision's applicable zoning districts coincide primarily with the Ladies Mile Historic District in Manhattan. If not for a building's location in an historic district, such conversion would require a special permit. The preservation requirement forces developers seeking to convert a loft building to residential use to preserve between one-third and two-thirds of a building's floor area for commercial or manufacturing uses. This new authorization clearly makes residential conversions more attractive and profitable.

In certain areas of Soho and Tribeca, in buildings that are either landmarked or within an historic district, regulations relat-Community Boards, Borough Presidents, the City Planning Commission and the City Council, and can take up to seven months ing to allowable locations for loft dwellings and joint living/work quarters for artists are waivable by authorization of the City Planning Commission. Most of Soho is zoned for manufacturing, and the only as-of-right use with a residential component is joint living/work quarters for artists, a residential-manufacturing hybrid use available only to persons certified as artists by the New York City Department of Cultural Affairs. The regulations in Soho and Tribeca restrict as-of-right residential uses to locations above the first or second floor, and in buildings with small lot coverage.

Special Permits to Modify Use and Bulk Regulations

The review of special permits is subject to ULURP, which provides for review by from the date the application is certified as complete. There are three special permits available to owners of property developed with a designated landmark or located in an historic district.

Under one of the special permits, on zoning lots developed with a landmark or with an existing building located in an historic district, the City Planning Commission may modify the use and bulk regulations, except floor area ratio. Many building owners in SoHo have utilized this special permit to waive the prohibition against retail uses on the ground floor. Building owners in the Fulton Ferry Historic District in Brooklyn have utilized this special permit to facilitate residential loft conversions in manufacturing zoning districts. This special permit can be used by the owner of a landmarked institutional building, such as a school or nursing home, which has become obsolete for its built use. If the building is located in a residence or commercial zoning district in which residential uses are al/owed, the special permit could facilitate a residential conversion by allowing the construction of an enlargement requiring modification of height, setback and floor area per room regulations.

Under another special permit, on a vacant lot in an historic district, the City Planning Commission may modify the bulk regulations, except floor area ratio. This provision allows for greater flexibility in designing buildings that are more contextual and hence more acceptable to the Landmarks Preservation Commission, whose approval is, as ever, required.

Under yet another special permit, in all but low-density residential and commercial districts, development rights can be transferred from landmark sites to adjacent lots, including zoning lots that are across the street. 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 (FAR) on the landmark site. FAR is the ratio of floor area within a building to lot area. For example, in a C6-7 zoning district, the maximum permitted FAR is 15.0. However, within the C6-7 district, properties improved with designated landmarks have a development potential that is governed by a maximum permitted FAR of 16.0 for the sole purpose of transferring development rights to adjacent properties. The extra FAR can serve as an incentive to new development and as a means to help fund the upgrading and maintenance of a landmark building.