Mitchell A. Korbey, Partner

This week the New York City Council approved modified versions of two signature proposals of Mayor de Blasio which are meant to support (and in certain instances mandate) the creation of new affordable housing, encourage the construction of senior housing, andfacilitate better residential buildings in keeping with their surroundings under the Quality Housing bulk regulations. Known as “Zoning for Quality and Affordability” (ZQA) and “Mandatory Inclusionary Housing” (MIH), these plans are outlined in the following alert as they represent substantial changes to the New York City Zoning Resolution. The ZQA and MIH text amendments are significant and contain many nuances and details beyond the key changes highlighted below. We are available to discuss how these changes specifically impact your projects and future development plans.

Zoning for Quality and Affordability

ZQA is meant to relax zoning requirements to encourage and make easier the building of both affordable and market rate housing, as well as senior housing. ZQA allows for certain height increases and bulk changes in medium to high density residential zoning districts for both affordable and market rate housing; reduces parking requirements in specific areas called “Transit Zones” for affordable housing and senior affordable housing; and creates bonus floor area for affordable senior housing and long term care facilities.

• Height Increases in Contextual Districts

In order to promote better, more active ground floors in both residential and mixed-use buildings, ZQA provides for a five foot increase to maximum building heights for market rate Quality Housing buildings in many contextual zoning districts (and their non-contextual equivalents) if a ground floor is provided at a height of at least thirteen feet, which must also contain a commercial or community facility use. However, pursuant to Council modifications, this height increase is not available for market rate buildings within the Manhattan Core (Community Boards 1 through 8).

• Height Increase for Inclusionary Housing Developments

The height increases for developments which contain affordable senior housing and inclusionary housing (i.e., non-senior affordable housing) in medium to high density zoning districts are more significant. For Inclusionary Developments which contain at least 50% of residential floor area, of which 20% is affordable on-site, ZQA provides for height increases of 15 to 35 feet.

• Parking Requirement Modifications

Changes have been made to parking requirements throughout the City for market, affordable and senior housing. There are certain as-of-right changes, as well as new discretionary actions (through the City Planning Commission and the Board of Standards and Appeals) that may reduce parking requirements for developments located within designated “Transit Zones” (generally defined as being served by a variety of public transportation options and within proximity to certain subway stations). Within Transit Zones, parking for new affordable senior housing and affordable housing is optional. A new City Planning Commission (CPC) special permit (i.e., ULURP) has been created which will allow for a reduction in required parking for developments where at least 20% of the dwelling units are affordable. Certain parking waivers may be applied for from the Board of Standards and Appeals for the removal of (and development upon) existing parking for affordable housing with a Transit Zone provided the new development creates further affordable housing.

• Additional Changes

Other changes to bulk regulations include a relaxation of the “transition rule” which requires certain height limitations where a development in a higher density zoning district abuts a low density zoning district. Also, the density factor for the maximum number of dwelling units permitted in R8 - R10 buildings has been reduced to provide greater flexibility in unit sizes. We note that proposed CPC modifications to the “sliver law” for senior and affordable housing to allow taller buildings on zoning lots of widths of 45 feet or less were removed by the Council, as was the CPC proposal to reduce the minimum distance between buildings on the same zoning lot.

The zoning text amendment for ZQA, with the Council modifications, can be found here.

Mandatory Inclusionary Housing

For the first time in this City, MIH imposes a mandatory requirement that developers provide a share of housing created through new development, enlargement or conversion in mapped MIH areas as permanently affordable to low- and moderate-income households. MIH requirements will also be imposed for private applications to CPC for special permits for use and bulk modifications which result in the creation of a significant number of additional dwelling units. Note that no MIH areas were mapped as part of this zoning change. MIH areas will be mapped in subsequent discretionary land use actions (i.e., ULURP).

The de Blasio administration has thus far identified seven areas planned for rezoning where MIH would be mapped, including:

• East New York, Brooklyn (which is currently in ULURP review, has already been approved by CPC and is now under consideration by the Council)
• Bay Street on Staten Island
• Parts of Flushing in Queens
• Long Island City in Queens
• Jerome Avenue in the Bronx
• East Harlem in Manhattan
• Inwood in Manhattan

MIH requires the affordable units must be permanently affordable. Where mapped (or imposed for CPC special permits), MIH requirements would apply to developments containing more than 10 dwelling units or 12,500 zoning square feet. Developments containing 25 dwelling units or less (or under 25,000 zoning square feet) may satisfy MIH requirement through a payment-in-lieu fee to an affordable housing fund administered by the Department of Housing Preservation and Development. Applications for a waiver of some or all of applicable MIH requirements may be made to the Board of Standards and Appeals if financial hardship can be proved.

MIH consists of four tiers of mandatory affordable housing requirements:

• Option 1: 25% of residential floor area at an average of 60% Area Median Income (“AMI”);
• Option 2: 30% of residential floor area at an average of 80% AMI;
• Workforce Option: 30% of residential floor area at an average of 115% AMI; and
• Deeper Affordability Option: 20% of residential floor area at an average of 40% AMI.

As MIH areas are mapped (or its requirements are imposed in private applications), CPC and the Council will decide during the public review process which of the above tiers is applicable to the area. Further, while MIH permits the location of the affordable units to be located either on-site or off-site (i.e., within the same community district or one-half mile of the development site), if located off-site, an additional 5% of affordability would be required. Moreover, if the affordable housing is provided off-site, the market rate development is precluded from utilizing the increased heights allowed for Inclusionary Housing under the ZQA amendment.

The zoning text amendment for MIH, with the Council modifications, can be found here.

For additional information on the issues addressed in this alert, please contact:

Mitchell Korbey at +1 212 592 1483 or [email protected]   © 2016 Herrick, Feinstein LLP. This alert is published by Herrick, Feinstein LLP for informational purposes only. Nothing contained herein is intended to serve as legal advice or counsel or as an opinion of the firm.