Closings
NYC Zoning and Land Use
What the district allows, what the certificate of occupancy records, and how relief is obtained when the two do not match.
What does a zoning and land use lawyer actually do in New York City?
Quick Answer
How does New York City zoning actually work?
- R, C and M zoning districts in New York CityEvery NYC lot sits in a residential, commercial or manufacturing district, often with an overlay or a special district on top of it. Here is how to read yours.
- Zoning use groupsThe Zoning Resolution sorts every activity into a use group, and each district permits only some of them. Here is how to find the group that governs a space.
- Legal non-conforming use and grandfatheringA use lawful when it started can continue after the zoning changes, but the protection is narrow and it can be lost. Here is what it covers and how it ends.
What is the building lawfully allowed to be used for?
- Changing the use on a certificate of occupancyA change in occupancy classification or use group needs an amended certificate of occupancy, even when no construction happens. Here is what that filing takes.
- Buildings with no certificate of occupancyOlder New York City buildings can lawfully have no certificate of occupancy. A letter of no objection is how the City confirms the lawful use instead.
- Legalizing an illegal conversionExtra units the certificate of occupancy does not show are an illegal conversion. There are two honest exits: legalize the unit, or remove it and prove it.
- Cellar and basement apartmentsA basement apartment can be lawful in New York City. A cellar apartment usually cannot, outside one legalization program. The line is measured from the curb.
- Accessory dwelling unitsRecent zoning text amendments opened a path for accessory dwelling units in parts of New York City. Whether your lot qualifies is a parcel-level question.
- The Loft Law and interim multiple dwellingsInterim multiple dwelling status puts a former commercial building under the Loft Board, with a legalization duty and rent regulation. It survives a sale.
- Certificate of no harassmentFor covered buildings, HPD must certify no tenant harassment before DOB issues a demolition or major alteration permit. It is a hard gate on the schedule.
How much can be built, and who owns the unbuilt part?
- Floor area ratio and how much you can buildFloor area ratio multiplied by lot area sets the buildable floor area. Here is how it is calculated, what is excluded, and why the zoning lot is the real unit.
- Air rights and transferable development rightsAir rights move three ways in New York City: a zoning lot merger, a landmark transfer, or a special district mechanism. Each is a recorded real estate deal.
- Zoning lot mergersA zoning lot merger joins separate tax lots into one zoning lot so floor area can move between them. It is recorded, and it binds every future owner.
How do you get permission the zoning does not already give?
- Use varianceA use variance asks the Board of Standards and Appeals to permit a use the district bars. It is the hardest relief in NYC zoning. Here is what it takes.
- Area varianceAn area variance asks for relief from bulk rules: floor area, height, setback, yards, parking. Here is how it differs from a use variance and what it takes.
- Special permitsA special permit is relief the Zoning Resolution already contemplates, granted on stated findings. Here is who grants which one and how the two paths differ.
- How a Board of Standards and Appeals application runsA Board of Standards and Appeals case runs on a public record: filing, community board, hearing, continued hearings, then a vote. Here is the sequence.
- DOB objections on zoning groundsA plan examiner raises a zoning objection when the filing does not match the Zoning Resolution. Here are the four ways it is cleared and how long each takes.
How does a discretionary land use approval get decided?
- ULURP, the uniform land use review procedureULURP is the public review process for rezonings and other listed land use actions, on a fixed clock that starts only after certification. Here is the sequence.
- Rezonings and zoning text amendmentsA rezoning changes the map for specific lots. A text amendment changes the rulebook citywide or by district type. They follow different Charter paths.
- Environmental review of a land use applicationDiscretionary approvals trigger environmental review in New York City. As-of-right filings do not. Here is what the assessment covers and where it can go.
- Landmarks Preservation Commission approvalIf a building is a landmark or sits in a historic district, LPC approval comes before any DOB permit. Here are the three permit types and what each covers.
What does a zoning problem do to a deal?
- What a zoning problem does to a pending closingA zoning problem is usually not a title defect, which is exactly why it is dangerous. It reaches the deal through the contract, the lender and the appraisal.
- Zoning due diligence before you signSix records answer almost every zoning question on a New York City property, and all six can be pulled before the contract rather than after the deposit.
- Can your business legally operate at this address?Before signing a commercial lease in New York City, check the district, the use group, the certificate of occupancy and the signage rules for that space.
Is this a zoning question or a certificate of occupancy question?
It is usually both, and they are answered in a fixed order. The Zoning Resolution decides what the district permits going forward. The certificate of occupancy records what the Department of Buildings has already approved, floor by floor. A plan is only as good as the gap between those two documents, which is the first thing worth measuring.
When is a variance the answer and when is it the wrong question?
A variance is relief from a rule, granted on hardship, and it is the hardest thing to obtain in New York City land use practice. Before it is even considered, three cheaper questions get asked: can the plan be redesigned inside the envelope, does the Zoning Resolution already authorize this by special permit, and is the use protected as a lawful non-conforming use.
How does a zoning problem reach a closing?
Rarely through title, because a standard owner’s policy excludes governmental regulation. It reaches the deal through the contract obligation to deliver free of violations, through the lender’s conditions, and through the appraisal. The exception is an unpaid penalty that has been docketed as a judgment, which is a lien like any other.
Who at the firm handles zoning and land use work?
Michael Sargo, a partner at the firm, bylines these pages. His law school concentration at the Elisabeth Haub School of Law at Pace University was environmental law, real estate law and land use law, and his practice is transactional real estate in the five boroughs.
Where should you go next?
- Development and construction transactionsSite acquisition, development rights and construction contracting.
- Title and recording issuesHow title problems are found and cleared on a closing.
- Title issues and how they are curedOne page per defect: how it is found, cured, and who pays.
- The NYC closings glossaryEvery term these pages use, defined.
- OATH and DOB violation defenseWhat happens after a violation is written, and how it is answered.
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Legal Disclaimer: These pages are general information about New York practice. They are not legal advice, they do not account for the terms of any particular contract, building or transaction, and reading them does not create an attorney-client relationship. This is attorney advertising. Prior results do not guarantee similar outcomes.