Zoning for Accessibility: The City’s New Transit Easement and Bonus Programs

April 6, 2021

On Monday, April 5, 2021, the City Planning Commission ("CPC") referred a citywide zoning text amendment, known as Zoning for Accessibility, to all community boards and borough presidents in New York City.

The proposal includes: (i) a system-wide transit easement requirement; and (ii) an expanded transit improvement floor area bonus for properties located in high density areas. The goal of this proposal is to better coordinate the present and future relationship of land uses around transit stations, offset potential zoning burdens on development feasibility, and support the provision of station improvements.

System-Wide Transit Easement Requirement

The proposed text amendment would create a system-wide easement requirement that would apply to all zoning lots with a lot area of at least 5,000 square feet, within 50-feet of a mass rail transit station, and located in one of the following zoning districts: (a) any Residence District at or above R5D, including R5 districts with a commercial overlay; (b) any Commercial District with a residential equivalent at or above R5, as well as C7 and C8 districts; or (c) any manufacturing district.

Prior to receiving a building permit from the Department of Buildings ("DOB") for new construction or enlargements, developers will be required to file an application with the MTA (or any other mass transit agency with jurisdiction over the station), and the CPC Chair, requesting a Certification as to whether a transit easement volume will be required on the development site. The mass transit agency and CPC Chair must jointly certify, within 60-days, whether such easement will be required. If the easement is required, a determination of its appropriate dimensions and location will be made in coordination with the affected property owner. To address the potential burdens imposed by this proposal, zoning relief from certain floor area, open space, height, setback, parking, use, and streetscape requirements would apply. For example, easement areas would be excluded from zoning floor area calculations. Additional relief for certain bulk requirements – including a height increase of up to 25% – will be allowed by CPC Authorization and CPC Special Permit.

Zoning lots that have less than 5,000 square feet of lot area, but are within 50-feet of a mass transit station and are within the zoning districts outlined above, can apply for an optional CPC Chair Certification for the voluntary provision of an easement volume. Such developments would be provided with the same relief afforded to required sites.

Developers with properties adjacent to train stations should be aware of these proposed requirements, as they may add delays to development schedules and affect the design of proposed construction.

Transit Bonus Program

The proposed text amendment would provide for a floor area increase of up to 20% for significant station improvements made on-site or off-site in the following areas: (a) R9 and R10 zoning districts, their commercial and MX district equivalents, and M1-6 zoning districts; and (b) within these zoning districts, zoning lots within 500 feet of a train station, or 1,500 feet of a train station in a Central Business District (i.e. the Midtown, the Garment Center, Hudson Yards, Lower Manhattan, Long Island City, and Downtown Brooklyn Special Districts (with some exceptions)). The 20% floor area increase, as well as other bulk modifications (such as increases in maximum building heights), will be subject to CPC Authorization. CPC Authorizations are discretionary approvals that are subject to environmental review, but are not required to go through the ULURP process. Note that DOB will not issue a temporary certificate of occupancy for the portion of a building utilizing transit bonus floor area until the required improvements have been substantially completed as determined by the CPC Chair, and such improvements are usable by the public.

The proposed Transit Bonus Program will provide a unique opportunity for developers to construct buildings in excess of the floor area and height limitations existing under current zoning, while, at the same time, providing much needed accessibility and other transit improvements to the public.

For more information on this issue or other land use & zoning matters, please contact:

Robert Huberman at +1 212 592 1592 or [email protected]
Mitchell A. Korbey at +1 212 592 1483 or [email protected]

© 2021 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.