ZR 77-00 Special Provisions For Zoning Lots Divided by District Boundaries – PART II
- The ZRD1 Project
- Feb 1, 2021
- 9 min read
Updated: Jul 5, 2024
Disclaimer: This post is based on a partial review of ZRD1 approvals. A more thorough analysis of all ZRD1’s approved by the department may lead to alternate conclusions. In addition, department practice may have evolved in more recent approvals. The ZRD1 Project strives to be accurate and fair-minded and we welcome clarifying information from the department or anyone who has better information on the subject discussed below. Please email info@zrd1.com with any questions or concerns.
July 2024 Update - The City of Yes for Economic Opportunity text amendment makes portions of these blog posts obsolete. Some text sections have been reorganized and links to section references may no longer be accurate. More importantly, the text amendment opens a new chapter in New York City zoning analysis. Until such time that these posts can be updated, please consider this post as representative of NYC zoning prior to the enactment of the City of Yes text amendments.
The following is Part II of a two part series focusing on zoning lots divided by district boundaries. Part I examined the text of Article VII, Chapter 7, while this post will explore a few ZRD1’s relating to the text.
ESTABLISHMENT OF THE PRE-EXISTING ZONING LOT CONDITION
The first and most basic requirement of Article VII, Chapter 7 is to establish that the zoning lot was pre-existing. Several ZRD1 approvals include the condition that the applicant provide proof to the Plan Examiner that the zoning lot existed as of December 15, 1961, or as of a subsequent amendment thereto. Typically this means that the zoning lot has not resulted from a zoning lot merger since the most recent zoning map change. Here is the approval language for a ZRD1 for 120 Skillman Street:
Applicant to provide examiner with documentation to establish that the property existed in its current split-condition as of December 15, 1961, or as of a subsequent amendment to the zoning map at which time such a boundary dividing the property was created.
A zoning lot can also be pre-existing in accordance with paragraph (b) of the definition of zoning lot in ZR 12-10. This paragraph defines a zoning lot as “a tract of land, either unsubdivided or consisting of two or more contiguous lots of record, located within a single block, which, on December 15, 1961, or any applicable subsequent amendment thereto, was in single ownership.” This condition is addressed in the following ZRD1 approval for 30-77 Vernon Blvd.
In this case, a zoning lot consisting of tax lots 3 and 21 had been merged in 2015. Since the most recent zoning map change was in 1989 it would appear that the zoning lot is not pre-existing. However, the original tax lots had been in single ownership since 1985, thus pre-dating the zoning map change. Since the zoning lot was pre-existing, the provisions of section 77-03 apply and the applicant can utilize the provisions of sections 77-22 through 77-29.
QUALITY HOUSING AND HEIGHT FACTOR BULK REGULATIONS IN THE SAME BUILDING
701 West End Avenue is located on a zoning lot split between R10A and R8 districts. For this development the applicant proposed a single building meeting Quality Housing bulk regulations on the R10A side and height factor bulk regulations on the R8 side. The plan examiner objected that Quality Housing would be required on both sides of the district boundary. The applicant filed a ZRD1 noting that section 77-03 applies when zoning lots are divided by district boundaries, and
except as specifically provided in this chapter, each portion of such zoning lot shall be regulated by all the provisions applicable to the district in which such portion of the zoning lot is located.
The applicant also cites section 77-40, which specifically addresses split lot conditions in which “a district boundary divides the building such that the Quality Housing Program applies in one portion of the building but not the other.” In such instances, the provisions of section 28-10 (Building Interior), 28-20 (Recreation Space and Planting Areas), 28-30 (Safety and Security) and 28-40 (Parking for Quality Housing) shall apply to the entire building or zoning lot. The ZRD1 was approved on the condition that these provisions shall be applied to the entire building or enlargement.
QUALITY HOUSING FLOOR AREA DEDUCTIONS IN A TOWER
The development of 200 East 59th Street highlights a great opportunity to benefit from section 77-40. The ZRD1 approval confirms that Quality Housing floor area deductions can be applicable even for portions that are not built to Quality Housing bulk regulations. The zoning lot is located primarily within a C5-2 district but also includes a 5 foot wide portion in a C1-5/R8B district. The applicant proposed a 38 story tower on the C5-2 side of the zoning lot along with a 2 story portion of the building in the C1-5/R8B district. The portion in the contextual district complied with Quality Housing bulk regulations. Since the building was divided by a district boundary such that the Quality Housing Program applies in one portion of the building but not the other, sections 28-10 through 28-40 were mandatory for the entire building. As such, the applicant could utilize floor area deductions for corridor density and daylight, along with floor area deductions for refuse storage and required recreation space.
Although in this case the district boundary line could not be relocated (since they were not a pre-existing zoning lot) let’s consider a scenario in which we could move the district boundary line and apply the 10.0 FAR to the entire site.
The lot has 10,542 sf in the C5-2 district and 527 sf in the C1-5/R8B district. If the district boundary were moved, the lot would generate 110,691 sf of zoning floor area but will no longer have any portion in a contextual zoning district. If we leave the zoning district boundaries intact, the lot will generate 107,528 sf of zoning floor area. So the lot generates 3,163 sf of additional zoning floor area when the district boundary is relocated. Nonetheless, Quality Housing floor area deductions for a 38 story tower will exceed this amount of zoning floor area and it would be advantageous to maintain the existing split lot condition. Note that the text of this chapter consistently uses the term “may apply” whenever there is an option to extend the use and bulk regulations across the entire site.
WHEN A BULK REGULATION IS IDENTICAL ON BOTH SIDES OF A SPLIT ZONING LOT
For any particular bulk regulation, for example if a pre-existing zoning lot is split by districts with the same percentage for maximum lot coverage, we are allowed to satisfy the requirement on any portion of the zoning lot. This is important, otherwise the portion of the lot in each district would have to separately meet the lot coverage requirement. This concept is addressed in the ZRD1 approval for 42-20 27th Street. The development site consisted of a newly formed zoning lot with portions located in an M1-5/R7-3 district and other portions located in an M1-5/R9 district. As we know, section 77-02 requires that each portion of the zoning lot shall be regulated by the provisions applicable to the district in which such portion of zoning lot is located. At issue in this ZRD1 is the density factor, which is 680 in both districts and allows for a maximum of 202 dwelling units on the zoning lot. The proportional number of dwelling units generated in the M1-5/R9 district is 76, however the applicant proposed to locate 77 units in this portion of the zoning lot, to which the applicant received an objection. In the subsequent ZRD1, the applicant wrote:
It has long been the interpretation of DOB that ZR 77-01 only applies split lot provisions to a zoning lot for regulations that are different in each zoning district. In Beekman Hill Association vs. Chin, 274 A.D.2d 161 (August 3, 2000), the Appellate Division of the Supreme Court of New York upheld the positions of DoB and the New York City Board of Standards and Appeals and found that a zoning lot is only split with respect to the application of use or bulk regulations that do not apply to both portions of the zoning lot, pursuant to ZR 77-01. In other words, if a zoning lot is split between two zoning districts that have identical regulations for a particular aspect, such as maximum floor area, then the divided zoning lot is not considered a split lot for purposes of that particular aspect.
The Department agreed, approving the ZRD1 “on the condition that the total number of dwelling units in the zoning lot shall not exceed 202.”
WHEN QUALITY HOUSING STANDARDS DIFFER ON EACH SIDE OF A SPLIT ZONING LOT
Section 77-40 provides a method to determine the average density and recreation space requirements when the lot is split between contextual districts with differing standards. The development at 42-20 27th Street proposed floor area deductions in accordance with ZR 28-31 Density Per Corridor. This section allows the deduction of 50% of the floor area of a corridor if the number of dwelling units per corridor does not exceed a stated limit. For R7 districts, that limit is 11 units. In an R9 district, that limit is 8 units.
Since the maximum number of dwelling units per corridor differ on each side of the district boundary line, the applicant multiplied each standard by the percentage of the zoning lot to which such standard applies. The sum of the products thus obtained was the adjusted standard applicable to the building.
The applicant determined that the average density was 10.2. Since there were two vertical circulation cores per corridor, the corridor density deduction applies to corridors serving no more than 20 units.
The ZRD1 was approved upon condition “that the Plan Examiner shall verify that the number of dwelling units served by each vertical circulation core for the entire zoning lot does not exceed 10.2 dwelling units.”
CORNER AND INTERIOR LOT COVERAGE WHEN THE DISTRICT BOUNDARY IS RELOCATED
Typically, lot coverage requirements for interior and corner lot portions of a zoning lot are computed separately and each portion must comply with the interior or corner lot coverage requirement. However, the following ZRD1 for 2040 Frederick Douglass Boulevard resulted in a different outcome. The zoning lot was primarily a corner lot in a C1-4/R8A district, with just a small interior lot portion outside of the commercial overlay. In this predetermination the applicant wanted to confirm that corner lot coverage requirements could apply to the entire site, claiming that section 77-11 was the controlling provision that allowed them to treat the entire lot as a corner lot.
The ZRD1 was approved, but not for the reasons stated by the applicant. The Department agreed that Section 23-18 makes Article VII, Chapter 7 applicable whenever a zoning lot is divided by a boundary between districts or is subject to bulk regulations resulting in different lot coverages on portions of the zoning lot. They continued,
however, without specific instruction within ZR 23-17 [now ZR 23-18] making ZR 77-11, ZR 77-211 nor 77-24 applicable, each section within Article VII, Chapter 7 shall be applied as though the condition of being divided by lot coverage requirements (corner v. interior lot portions) were a condition of being divided by a zoning district boundary.
So let's review sections 77-11, 77-211 and 77-24 to determine which section governs. ZR 77-11 is not applicable because once the C1-4 overlay has been extended across the site the permitted uses in each district are the same. Still, the zoning lot is effectively a split lot due to section 23-18 and the different lot coverage provisions. The zoning lot meets the test of ZR 77-211(b) of “two commercial districts…in which the same uses are permitted but different bulk regulations apply.”
Since ZR 77-211 applies, the lot coverage regulations applicable to the district in which more than 50 percent of the lot area of the zoning lot is located may apply to the entire zoning lot, provided that the greatest distance from the mapped district boundary to any lot line of such zoning lot in the district in which less than 50 percent of its area is located does not exceed 25 feet.
Such application of ZR 77-211 makes ZR 77-24 inapplicable per the general provisions of ZR 77-21. Therefore, in accordance with section 77-211, the lot coverage regulation applicable to the corner lot portion can be applied to the entire zoning lot.
Note that this approval occurred in 2014 and Department policy may have evolved since then. A counter argument could maintain that ZR 77-211(b) requires two (different) commercial districts, whereas in this case there is only one commercial district. In such a reading, section 77-211 does not apply and we are left with section 77-24, requiring lot coverage for interior and corner lot portions to be computed separately.
But if the approval is consistent with current department practice there is an opportunity to utilize section 23-18 to increase FAR on certain zoning lots. This section states:
in all districts, as indicated, whenever a zoning lot is divided by a boundary between districts or is subject to bulk regulations resulting in different minimum required open space ratios, different maximum floor area ratios or different lot coverages on portions of the zoning lot, the provisions set forth in Article VII, Chapter 7, shall apply.
Let’s take a look at a zoning lot subject to different maximum floor area ratios, such as a zoning lot outside of the Manhattan Core that is in a commercial district equivalent to R6, R7 or R8. When developed as a quality housing building, per section 23-153, the FAR for these districts differs depending on the proximity of a wide street. For portions of zoning lots within 100 feet of a wide street, R6 FAR increases from 2.20 to 3.00, R7 FAR increases from 3.44 to 4.00 and R8 FAR increases from 6.02 to 7.20. Assuming the zoning lot extends no more than 125 feet from a wide street, by using the same arguments from the previous ZRD1 we should be able to apply the higher FAR to the entire site. We do not meet the requirements of section 77-11, but if we are in a commercial district and meet the proximity tests we are subject to section 77-211, allowing us to apply the higher FAR to the entire site.
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