Posted by: Patricia Salkin | July 23, 2021

NY Appellate Court Concluded NYC Board of Standards and Appeals Correctly Applied Bulk Distribution Regulation to a Project Located in a Special District and Reversed

This post was authored by Olena Botshteyn, Esq.

Extell Development Company and West 66th Street Sponsor LLC (“Respondents”) are constructing a 39-story residential building near Lincoln Center in New York City. In April 2019, the project vested after Respondents obtained the necessary permits and completed the foundation of the building.

The project is located in two zoning districts and this type of zoning lot is defined as a “split lot,” with each zoning district having its own limitations on uses on the lot. New York City Board of Standards and Appeals (“BSA”) determined that the applicable bulk distribution regulations required that the project had to have at least 60% of the total floor area located below a height of 150 feet, and that the project was in compliance. Petitioner in this case appealed the determination to the Supreme Court, arguing that BSA incorrectly interpreted the applicable zoning regulation, which resulted in a building five or six floors taller than permitted, and the court granted the petition, having concluded that “the approval was contrary to the purpose of the applicable Zoning Resolution provisions, which was “to limit the height of buildings” in the Special Lincoln Square District.” Respondents appealed.

On appeal, the court concluded that the split-lot provision, prohibiting transfer of floor area between the two zoning districts is overridden by the bulk distribution regulation, which provides that “[w]ithin the Special District, at least 60 percent of the total floor area permitted on a zoning lot” must be below a height of 150 feet. BSA held that this regulation applies to both zoning districts where the project is located, because it is also located in a “Special District.” Accordingly, the court concluded that the two zoning districts may be treated as one and BSA correctly applied the zoning regulation.

City Club of New York v NYC Board of Standards and Appeals, 2021 WL 3083700 (NYD 1 Dept. 7/22/2021)

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