Court resolves battle between New York City government bodies and a developer caught in the middle
Municipalities of all sizes have varying agencies whose determinations must be sought in the land use process. However, whether presenting before a planning board, seeking a variance from a zoning board, or satisfying the concerns of a community preservation board, a developer can get caught in the middle when municipal agencies challenge each other’s respective authorities and processes. New York City, as is often the case, provides an example of extreme proportions.
In one recent case*, a developer applied to the New York City Planning Commission (CPC) to construct four large towers in lower Manhattan between the Brooklyn and Manhattan Bridges, dubbed the Two Bridges Neighborhood. After the CPC determined that a special permit was not required, which would have subjected the proposed development to the Uniform Land Use Review Procedure (ULURP), the New York City Council and Manhattan Borough President filed a petition challenging the CPC’s determination.
The State Supreme Court granted the petition, holding that a special permit was needed because the proposed towers would constitute a “huge” change to an existing approved site plan, and therefore, that the requirements of the ULURP could not be waived. On appeal, the Appellate Division disagreed, reversed the lower Court and held that the CPC properly acted within its authority when it granted the application without requiring a special permit.
Among other things, the Appellate Division held that if the City Council had intended for the New York City law to be interpreted in the way the City Council argued, and not how it was expressly written and applied by the CPC, the City Council could have amended the law. The City Council also could have altered the zoning classifications within the affected neighborhoods, which would have either precluded the development or required the developer to satisfy those special permit requirements the City Council was arguing should be imposed by the Court.
Most land use development projects will not face such litigious circumstances. But the interplay between municipal agencies, and how they interpret governing codes and ordinances, is something developers need to consider when seeking approvals. Developers should not assume planning, zoning and/or architectural review boards will act in unison, on the same schedule or have the same concerns. Often, they do not. Working cooperatively with these governing bodies is key to a successful land use development process.
Upcoming presentation: Jacob Amir will be presenting at the annual conference of the Associated General Contractors, New York State, on the topic of “Preparing for and addressing subcontractors’ failure.” The conference will be held virtually from December 8 – 10. More information to follow.
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*In re Council of the City of New York, et al. v. Department of City Planning, (App. Div. 1st Dept., 8/27/20)