Waterfront zoning: city takes first step.

The Planning Commission for New York City has approved far-reaching changes in the way New York City's waterfront can be developed. If the City Council affirms these regulations in early fall, owners along the 578-mile waterfront can expect comprehensive, and in some cases complex, new zoning restrictions, as well as new administrative procedures.

The general goals of the new rules are to open up the shorefront to the public and to encourage uses that will draw people to waterfront areas. The regulations are also intended to discourage development of the "tower in the private park" variety.

To accomplish these ends, the zoning changes require that shorefront development include public walkways and other publicly-accessible areas, developed and maintained to conform with specific design prototypes. In addition, all new construction in the regulated area must provide visual corridors from upland streets to the shoreline. The City Planning Commission's new regulations would reduce the developable floor area on waterfront property, and would require that floor area to be packaged differently in some districts, that is, in shorter buildings and with larger floor plates at ground levels. Development on piers, especially new piers, would be much more restricted.

Who is Affected?

The regulations cover, with some narrow exceptions, all property in New York City between the pierhead line and the first upland street. (The restrictions extend beyond this area where the first upland street is less than 800 feet from the shoreline.) Any property owner in this area would need to consider the new rules before constructing a new building, expanding an existing one or changing the use in an existing building. Potential purchasers of such property will want to determine whether the property was part of a subdivision post-dating the new law -- since the subdivision could have resulted in restrictions on the new lots.

There are exceptions for development of low-density residential areas, small lots, manufacturing uses, and waterfront-dependent uses such as boating facilities.

Since almost all large waterfront developments need discretionary approvals such as map changes or special permits, the effect of the new text in those instances will be to provide a new framework for the debate about appropriate development. Smaller developments along the waterfront and owners who hoped to do as-of-right development, however, will be affected much more directly.

Public Walkways and Access Areas. The city's zoning amendments would require multi-family and commercial development on waterfront lots of a certain size to provide public access on approximately 15 to 20 percent of the lot. The access must include a walkway, approximately 30 to 40 feet wide with connections to a public street or park. The design guidelines for the public areas are quite specific, regulating grading and paving, number and types of trees, length and depth of benches, fencing, and the like. The property owner must also provide for ongoing maintenance of the public access areas through an agreement with the New York City Parks Department, backed up by performance bonds.

The legality of the required public walkways and other areas has been the question mark in a number of public comments on the new text. Both federal and New York State constitutional case law impose much more stringent "takings" analysis where there is a permanent physical occupation of private property, such as an easement, as opposed to restrictions on the placement of development. The new waterfront rules go beyond bulk restrictions (such as a waterfront yard or setback requirement, or a street mapping), and require that the public be given the right to cross the subject property. It remains to be seen whether Nollan and other recent federal and state land use cases augur a new era of court review which make this part of the city's regulations vulnerable. Furthermore, the public trust doctrine which gives the public certain inalienable rights to property seaward of the high water line is not highly developed in New York State, and is unlikely to provide an alternative justification for these regulations.

Smaller buildings with more floor area at lower elevations. Under the new regulations, there would be maximum height limits, ranging from 110 to 350 feet, in many high density districts for the first time. Bulk regulations in these areas would be simplified, since the new rules eliminate the three-way open space rate/height factor/floor area ratio calculations and instead require specific amounts of open space on the lot. The Planning Commission has also included a new minimum coverage for the first two floors of such developments in order to encourage street level uses.

Although the regulations would not change the underlying floor area ratio in any particular zoning district, they would eliminate many of the floor area bonuses. More importantly, the method for determining the allowable floor area on waterfront lots would be revised, and one could no longer generate floor area using that portion of the lot which is underwater. This would effectively reduce the amount of floor area which can be built.

Pier development The new zoning also dramatically changes pier development. New piers would be allowed only for water-related uses such as docks, boat establishments, shipping-related manufacturing uses, sewage disposal plants, and parks. On existing piers, certain retail uses would be limited in size, and residential development must include ground floor commercial uses to encourage public use of the pier. New bulk requirements for piers would limit building heights to 40 feet. A public access requirement also applies to piers; approximately a quarter of the length of the pier at its seaward end, 40 feet at its landward end, and 15 feet at the sides of the pier must be open to the sky and available to the public.

New Procedural Hurdles

and Issues

Any owner who wishes to obtain a building permit for waterfront property would need to make a stop at the Department of City Planning before going to the Buildings Department. The City Planning stop would be needed to obtain a certification that the proposed development complies with the new public access, visual corridor, and other provisions. The statute was designed to include some safeguards 80 that this hurdle doesn't become a roadblock; the Chair of the City Planning Commission must respond within 45 days of receiving a complete application, and failure to respond would allow the applicant to go to the Buildings Department. Of course, the determination that an application is complete may take much more than 45 days, depending on the quality and thoroughness of the submission, and on the information the chair decides is necessary.

In addition to the chair's certification, the permit applicant for a shorefront lot must record a restrictive declaration and a maintenance and operation agreement in the land records. Over time, it is hoped these agreements will become standardized, with sufficient flexibility for different-sized developments and conditions.

Property owners should also note that City Planning review would be required in connection with any zoning lot subdivision. This would add another layer to the existing review by the Finance Department and the Buildings Department in order to subdivide lots in New York City.

The new restrictions allow some additional breathing room through new special permits and certifications. (For example, a special permit would be needed to change the use in an existing building which encroaches in the mandated shorefront walkway.) These special permits, however, mean the project would be subject to environmental reviews under the city and state environmental quality review laws.

Next Steps

The Planning Commission's new zoning is its first hard look at the entire New York City waterfront; it is, however, in many ways a first step. The text points to future site specific "waterfront access plans" and new zoning districts. Large waterfront developments will still generally require discretionary approvals. And, there will invariably additional modifications as the new regulations are tested against real projects.