A Brief Text Amendment to the New York City Zoning Resolution: Liberalize 11-22

Let the more liberal standard prevail!

This post is a quick idea. A fully researched, fleshed out version will come later. But for now I’ll also note that this change can be initiated by many of our elected officials—and they are best placed to do it. They shouldn’t wait on the mayor, especially if they’ve been saying we need to build more (although the mayor should feel free to do this). Per §201 of the city charter (emphasis added):

Applications for changes in the zoning resolution may be filed by any taxpayer, community board, borough board, borough president, by the mayor or by the land use committee of the council if two-thirds of the members of the committee shall have voted to approve such filing with the city planning commission.

Apply the least restrictive standard: liberalize 11-22

New York City’s zoning resolution currently says that, in any conflict between it and other law at the city level, the more restrictive application will be applied:

ZR §§ 11-22 Application of Overlapping Regulations: (see bolded text)

Whenever any provision of this Resolution and any other provisions of law, whether set forth in this Resolution or in any other law, ordinance or resolution of any kind, impose overlapping or contradictory regulations over the use of land, or over the use or bulk of buildings or other structures, or contain any restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards or requirements shall govern. In case of any conflict between the performance standards and the rules and regulations adopted by the Department of Environmental Protection, the more restrictive shall apply.

This provision was part of the original 1961 zoning resolution, and has not been amended since then. The 1961 resolution is an anti-building¹ piece of law that the city is trying to move away from today; one easy way to do that is to allow the zoning resolution to be superseded when more recent, relevant, and updated law permits more liberal development.

You can do this in two ways. The first is to generally permit the more liberal regulation to prevail:

Whenever any provision of this Resolution and any other provisions of law, whether set forth in this Resolution or in any other law, ordinance or resolution of any kind, impose overlapping or contradictory regulations over the use of land, or over the use or bulk of buildings or other structures, or contain any restrictions covering any of the same subject matter, that provision which is [more] less restrictive or imposes [higher] lower standards or requirements shall govern. In case of any conflict between the performance standards and the rules and regulations adopted by the Department of Environmental Protection, the more restrictive shall apply.

The second is to specifically carve out the law that one wants to prevail over the zoning resolution in any conflict between the two. As you can see in the last sentence of this excerpt, that already happens with DEP regulations when the latter are more restrictive. But it could happen with, say, the Construction Codes when they are more liberal:

Whenever any provision of this Resolution and any other provisions of law, whether set forth in this Resolution or in any other law, ordinance or resolution of any kind, impose overlapping or contradictory regulations over the use of land, or over the use or bulk of buildings or other structures, or contain any restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards or requirements shall govern. In case of any conflict between the performance standards and the rules and regulations adopted by the Department of Environmental Protection, the more restrictive shall apply. In case of any conflict between the New York City Construction Codes, the more liberal shall apply.

While I think the “more liberal regulation” standard should be adopted generally, the Construction Codes are a great place to start if someone wanted to try a more tailored approach.

The Construction Codes are part of the New York City administrative code, and have been duly passed by the New York City Council. They’re far more up to date than the 1961 zoning resolution, and deserve to overrule it when they are more liberal.

1. In effect, even if not in intention (but the FAR caps and other provisions were clearly meant to discourage development and density).