This article features a veteran zoning lawyer, Howard Goldman, who discusses the specificities of NYC zoning laws and the City of Yes initiative. The latter promises to modernise important zoning regulations, and promote a more green future.
You have a unique insight into the development of New York City, thanks to your background in land use and zoning laws at GoldmanHarris LLC. What can you tell our readers briefly about your expertise and work?
I’ve been a land-use attorney in New York City since 1973. During that time, I’ve worked as a lawyer in Alaska, where i was introduced to environmental and land-use regulations in the North Slope Borough. Prior to that, I was a lawyer working in Alaska where I learned about land use and environmental regulations in the North Slope Borough.
GoldmanHarris, a boutique law firm in New York City, specializes in land use and zoning. Zoning is an important tool to regulate the use of property. In the real estate world, it’s one of the questions that developers, buyers, and lenders ask. New York was the first municipality to adopt comprehensive zoning laws. It is also the densest city in the United States. The original Zoning Resolution of 1916 (about 100 pages in length) was replaced by 1961, and now has about 1,300 pages.
My firm focuses its practice on the Zoning Resolution, and the land-use review process. Land use law requires a thorough understanding of Zoning Resolution and its related regulations. It also requires the ability to work closely and effectively with clients, the City Planning Commission and other stakeholders, such as the Department of City Planning and City Council, the Department of Buildings and the Landmarks Preservation Commission and Board of Standards and Appeals. As land use attorneys, our goal is to make sure projects are completed and not impede them.
The ambitious ‘City of Yes” initiative aims to streamline the land use and zoning processes in the city. What are the main challenges you see that an initiative of this kind would face?
The City of Yes represents a long overdue and remarkable development. It aims to streamline the approval and review process while addressing critical needs, unlike previous initiatives. It is a combination that has never been seen before. Carbon neutrality, affordable housing and economic growth are the three most important needs. The streamline aspect includes changes in how agencies process application to produce faster, more predictable results.
The implementation of the initiative will require amendments to Zoning Resolutions and changes to agency procedures. The City Charter mandates a process of public review and approval for zoning amendments. This includes referral to the community boards and boroughs affected, approval by the City Planning Commission, and City Council. Public hearings are held at each step. Heads of agencies, such as the Department of Buildings or the Department of City Planning can make changes to agency procedures without public review.
The City of Yes represents a long overdue and remarkable development.
The proposed zoning changes face many challenges, including the complex drafting process of the amendments that affects multiple sections of the Zoning Resolution and the public review, including the presentations, comments, and revisions. The amendments on affordable housing, economic growth and carbon neutrality have not yet been drafted.
Changes in agency review procedures face a fundamental challenge: overcoming decades-old elaborate processes which increase time, cost and uncertainty associated with obtaining approvals and permits. It is important to reduce costs, improve predictability and speed up the environmental and land use processes without compromising public health, safety or welfare.
The initiative aims to make the city’s land use review more efficient and predictable. What legal obstacles do you think might arise when trying to implement this change, and how can they be overcome in your opinion?
Public review and approval of changes to internal review procedures of Department of Buildings (which issues permits and approves developments) and Department of City Planning (which is the gatekeeper of the Zoning Resolution process and public review procedure) are not required. The Director of City Planning and the Commissioner of Buildings can implement these changes.
New York State Supreme Court Article 78 Civil Practice Law and Rules allows legal challenges to be made against final agency decisions. Challengers in this proceeding must show that the agency acted arbitrarily or capriciously. It is difficult for challengers, and the majority of agency decisions are upheld. Challenges can delay projects that are based on future market conditions and financing schedules. To defend against an Article 78 challenge, you must show that the contested actions meets a compelling need for the public, meet all legal requirements, are in accordance with a plan comprehensive and result from a sound planning procedure.
The plan calls for changes to the City Environmental Quality Review and Zoning Resolution. What are the proposed changes and what potential legal issues could they raise?
A provision of the State Environmental Quality Review Act, (SEQRA), prohibits any changes that are ‘less protective of environment’. The City of Yes, to its credit recommends the City adopt an expanded list of “Type II” actions that do not require environmental review as they are unlikely cause environmental impact in New York City. The City of New York has not significantly expanded its Type II List due to concerns about the “less protecting” ban, even though it is mandated to be applied to all local government in New York State.
What impact do you expect the proposed digitalisation of the land use and zoning application process to have on the legal landscape in your city?
Transparency and openness in government are essential to our democracy. The digitization, which is currently underway, will make it easier for the public to access land use applications. Applications will have to explain clearly what the application is proposing, why it’s necessary and why this is appropriate in a legal and planning perspective. State law requires discretionary land-use actions to be in line with a “comprehensive plan. The Zoning Resolution, while not titled “Comprehensive Plan”, is the City’s comprehensive planning document.
Transparency and openness in government are essential to a democratic society.
What legal frameworks may be needed to strengthen or establish the successful collaboration of this plan, given its emphasis on community involvement and partnerships?
The Uniform Land-Use Review Procedure (which was adopted in 1975) provides a framework to engage and partner with the community. The Department of City Planning must first determine that the applications for discretionary approvals of land use are complete. The City Planning Commission ‘certifies’ the application as complete after this (which can take many years) and then refers it to the Community Board and Borough president for public hearings, and recommendations that are not legally binding but have political significance.
The City Planning Commission holds a public meeting, votes and then issues a report detailing its decision. The application is thrown out if the Commission rejects it. If the Commission approves the application, it is sent to the City Council. The City Council holds additional public hearings before making a final decision. This process has been working reasonably well for the last 48 years.
What is a recent case that you have encountered that demonstrates the legal challenges the City of Yes initiative could face?
When I was Deputy Counsel for the Department of City Planning, the 1982 Midtown Rezoning came into effect. It was my job to coordinate the process of environmental review. Midtown Rezoning is an ambitious plan that aims to change the Zoning Resolution in order to promote commercial development westwards of Sixth Avenue, while limiting development eastwards. Two years of planning by the Department of City Planning, including reports and outreach to the public, preceded the certification of the application. The rezoning was challenged only once, and it concerned the effect on two construction sites east of Sixth Avenue. The developers’ court challenge based on SEQRA has been dismissed.
How might the ‘City of Yes,’ looking at its long-term impacts, reshape NYC’s legal and regulatory landscape of the urban development?
I hope the City of Yes can change the perception of New York City being hostile to development due to time, cost and uncertainty. By increasing affordable housing, the City of Yes can also reverse the perception that New York City is an expensive place to live. The City of Yes is a great model to follow when new urban challenges are faced in the future. The City of Yes project is a great success. Mayor Eric Adams, and City Planning Commission chair Dan Garodnick should be commended.
Howard Goldman, Co-Founder
475 Park Avenue South New York, NY, USA
Tel: +1 212-935-1622
Howard Goldmanis a co-founding member of GoldmanHarris LLC. He has been practicing New York City land use law since 1980, when he was appointed as Deputy Counsel at the Department of City Planning. Since then, he has worked as a partner in land use at two of the leading law firms. He opened his own firm in 1998 and GoldmanHarris LLC in 2008. Howard is an adjunct professor of New York Law School and an author of many articles. He has also been recognized by Chambers and Partners in Real Estate, Zoning/Land Use, New York for his expertise.
GoldmanHarris LLCis an exclusive boutique law firm that focuses on land use and zoning in New York City’s five boroughs. The team at the firm is comprised of veterans who have worked in NYC’s land development for over eight decades.