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Deals & Dealmakers

City studies ways to usurp builders running rings round regs

Tiny, unbuildable, gerrymandered zoning lots that have been created for the sole purpose of evading zoning restrictions, will be studied for regulation by the Department of City Planning following requests by Council Member Ben Kallos and advocates.

City Planning will conduct a study related to the establishment of a minimum lot size for non-residential zoning lots, to prevent otherwise unusable zoning lots yielding unintended building forms in certain zoning districts.

The results of the study will be shared with the Council by August 2019.

“Our city needs more housing for everyday New Yorkers, but developers keep creating new loopholes to get around fair zoning, just to get better views for billionaires,” said Council Member Kallos.

“We have fought bad developers every step of the way, but it’s become clear that a zoning change is needed, and that’s just what City Planning will be studying. Thank you to City Planning Chair Marisa Lago for working to close loopholes so our zoning can effectively protect New York City’s neighborhoods.”

The issue was first raised by Council Member Kallos at 180 East 88th Street where developer DDG created a 4-foot zoning lot to assert the property did not front on 88th Street, so that it did not have to comply with zoning rules.

Kallos and Borough President Gale Brewer sent a letter on May 16, 2016 to the Department of Buildings, who issued an immediate stop work order in response,.

The New York Times later reported how this loophole is used to avoid the zoning. After the 4-foot lot became a 10-foot lot and the Department of Buildings rescinded its stop work order, Council Member Kallos, Borough President Brewer, Senator Liz Krueger, and a coalition of community groups including Carnegie Hill Neighbors and Friends of the Upper East Side Historic District sued the Department, and then appealed the case to the Board of Standards and Appeals (BSA).

On July 16, 2018, when the case came to the BSA, elected officials from Manhattan joined Kallos at a rally urging the administration to consider the citywide implications that the ruling in the case would carry. Council Member Kallos also submitted a letter co-signed by Borough President Brewer and ten additional city elected officials urging the BSA to act.

Although the BSA ruled that 180 East 88th Street was already too far along to stop its construction, it did recommend that the Department of City Planning review the zoning to prevent the creation of unbuildable lots. In the decision, the chair wrote:

“Do I think the zoning lot subdivision was done to intentionally alter the development project so that the sliver law and tower-on-base regulations did not apply? Yes. Do I think it should have been allowed to do that? No. . . . .[but] there just isn’t any way for DOB to regulate this problem without City Planning creating a minimum standard for zoning lots for all uses as it has done for residential uses. . . . Such a clarification would be easy for City Planning if it were willing to look at it, and I encourage them to do so.” – BSA Chair Margery Perlmutter, December 10, 2018

On January 17, 2018 at a town hall hosted by Council Member Kallos, Mayor Bill de Blasio committed to studying the loopholes used by developers to skirt the zoning code, including mechanical voids and unbuildable zoning lots.

In January 2019, City Planning certified a zoning text amendment to eliminate the mechanical voids loophole in high density residential neighborhoods.

Residential districts currently have a minimum lot area and minimum lot width ranging from single family homes in the lowest density districts of 9,500 s/f and 100 feet wide to 1,700 s/f and 18 feet wide in the highest density districts under §23-32 of the Zoning Resolution.

“The ability to create tiny zoning lots has serious citywide implications. Without action from the DCP, the sky will literally be the limit to the at-will sculpting of zoning lots that serve no legitimate purpose, bear no relation to their corresponding tax lots, and pose serious administrative challenges,” said Rachel Levy, executive director at Friends of the Upper East Side Historic Districts.

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