The New York City Department of Buildings Institutes a New Rule Regarding Public Challenges to Zoning Approvals

By Jenifer B. Minsky,, Esq.

As the public, property owners, developers and construction professionals will all likely agree, the zoning process in New York City is overly complex and the New York City Department of Buildings (“DOB”) is ill-equipped to control the process. The DOB recently instituted a rule regarding public challenges, ostensibly to make the process more transparent, easier for the public, and to provide construction professionals with confidence that zoning approvals will not be overturned weeks, months or even years after construction has begun. However, this new rule, which will result in significantly more challenges than the understaffed DOB has ever seen, falls far short of its goals.

The new rule, Section 101-15 of Chapter 100 of Title 1 of the Official Compilation of the Rules of New York City (along with another rule regarding posting of permits), went into effect on July 13, 2009, applying to projects not deemed ready for initial plan examination and for which fees had not been paid prior to that date. The new rule requires that once the DOB has approved zoning documents for a particular project, the project architect and/or engineer must submit a zoning diagram which will be placed online. This diagram will enable the public to review the size and scale of the proposed construction as well as where the building will sit in relation to the street. Once the diagram is posted, the public has 45 days to challenge the application. After the challenge period has elapsed, the appropriate borough commissioner will begin a review of all challenges. Each challenge may be denied, or a notice of intent to revoke the zoning approval and any other related approvals and/or permits may be issued. The public has 15 days to appeal the denial of the challenge or the recission of the notice of intent to the DOB’s technical affairs unit.

The new rule is flawed for many reasons. First, the rule does nothing to make the often lengthy zoning process any less complex or to provide the DOB with the resources it needs to properly review zoning applications or challenges. This is extremely significant as the new rule, with its added transparency and mandatory review of all public complaints, invites considerably more challenges. Significantly, while the public only has 45 days to bring a challenge and 15 days to file an appeal, the under-staffed DOB is not limited in the time it takes to respond to the challenge or appeal. Accordingly, a flood of complaints from a well-organized community group could take months or even years to investigate. In addition, denial of a challenge by the borough commissioner or the head of the technical affairs unit where a permit has already been issued, are final determinations that may be appealed to the Board of Standards and Appeals (“BSA”). A determination of the BSA can be appealed to the New York State Courts, allowing for additional delays of months or years.

The rule is also devoid of a requirement that the challenger pay a fee or submit professional support for its application nor does it provide any repercussions for those who file frivolous or fraudulent challenges. As a result, this rule can be used intentionally as a sword by those who oppose development or inadvertently by those who mistakenly believe their complaint has support in the zoning laws. No matter what the motivation, these unsupportable challenges could delay construction for years. This problem is magnified by the fact that under the new rule the applicants are not given notice of the challenges and, therefore, do not have an opportunity to respond prior to a DOB decision.

Furthermore, even if challenges are not brought during the challenge period, the expiration of that period does not provide the applicant with the certainty that the rule is supposed to invoke. The new rule provides that a notice of intent to revoke a permit, issuance of a permit and revocation of a permit are also final determinations that may be appealed to the BSA. Accordingly, if an owner or developer does not apply for a building permit until after it submits its zoning documents, the public will have another opportunity to challenge the project.

At best, this new rule will complicate what is already a difficult process and, at worst, will stop construction in New York City at a time when the City needs development more than ever. Clearly, developers and owners will be wary of proceeding with construction when the DOB is investigating numerous public complaints regarding a particular project and, indeed, may be unable to obtain financing until such challenges are resolved. Only time will reveal the true extent of the damage caused by this rule.

The above article is an overview only, should not be considered legal advice and application of any laws regarding the aforementioned will be dependent upon specific facts and circumstances. For more information, please contact Raymond T. Mellon or Jenifer B. Minsky at 212-682-6800, rmellon@zdlaw.com or jminsky@zdlaw.com.

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AUGUST 2009