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Welcome to the O'Sullivan & Zacchea Law Blog! Check back regularly for practical legal tips on real estate, trust and estates, elder law and other everyday legal matters. 

  • Applying for a Variance with the NYC Board of Standards and Appeals

    LAND USE AND ZONING JUN 15th 2015

    Applying for a Variance with the NYC Board of Standards and Appeals

    The New York City Zoning Resolution dictates what you can and cannot build on your property. These zoning laws will determine how tall a building can be as well as how far a structure must be from the property lines. The idea behind the zoning resolution is to ensure that the public’s welfare and the character of a neighborhood are protected with each new structure erected.

    If you are planning to build a new structure or do major renovates on your existing building you should first consult with a professional to be sure your plans conform to the current zoning rules. If you find that the zoning laws forbid your plans it doesn't necessarily mean the end of your project, you can apply for a zoning variance with the New York City Board of Standards and Appeals. The variance will act as an exception to the law and allow you to develop your property in a way that is in contravention of the current zoning laws in place.

    Many owners of irregular shaped lots in New York City avail themselves of a variance in order to maximize the returns they can receive from their property. Additionally developers who are looking to build more units on a lot then what is permitted will apply for a variance. The first step in obtaining a variance is to submit your original plans to the Department of Buildings. After your plans are denied by the Dept. of Buildings your next step will be to file your variance application with the Board of Standards and Appeals.

    The Board consist of 5 Commissioners whose job it is to interpret the City’s Zoning Resolution. Specifically the Board will review your plans in conjunction with Zoning Resolution section 72-21. Section 72-21 states in part that: “Where it is alleged that there are practical difficulties or unnecessary hardship, the Board may grant a variance in the application of the provisions of this Resolution in the specific case, provided that as a condition to the grant of any such variance, the Board shall make each and every one of the following findings.

    Section 72-21 then goes on to list the five part test a variance application must pass in order to win approval from the Board. The chief factors the Board must weigh when deciding your application are:

    1-The unique layout/condition of your property.

    2-Because of the unique condition of your property if you were to follow current zoning rules would you receive substantially less of a return on your investment then if your variance application were granted.

    3-If your variance application is granted will it alter the unique characteristics of your neighborhood.

    4-That the hardship suffered by the property owner applying for the variance was not created by the property owner themselves so that they would be entitled to a variance.

    5-That the changes sought in the variance application submitted are of the most minimum nature possible while still giving the owner the relief they seek.

    After the Board reviews your variance application they will conduct a public hearing at which you will be able to state your case. In addition the neighbors of the property in question and the Community Board where your property is located will have an opportunity to tell the board if they approve or disapprove of your proposed plans.

    If you are purchasing an irregularly shape parcel of property or putting up a building that does not conform to current zoning laws or if your plans have already been denied by the Department of Buildings you still have the opportunity to bring your project to the Board of Stands and Appeals to obtain a variance. Please contact the firm and ask to speak to Kevin M. O’Sullivan regarding any questions that you may have. You may also reach him via email at kosullivan@ozatlaw.com.

  • The Air Isn't Free; Buying and Selling Air Rights in New York

    LAND USE AND ZONING DEC 10th 2014

    Buying and Selling Air Rights in New York 

    "Buy land, they're not making it anymore"- Mark Twain

    Ironically or not, this quote from Mark Twain captures the intangible and unique value that comes from owning a piece of real estate. The sweep of your ownership may not end at the roof of your building. In many jurisdictions, including New York City and the surrounding municipalities, each parcel of property contains a certain amount of development rights commonly referred to as "air rights". As the price of real estate continues to rise, the sale of air rights has become a niche industry, allowing property owners to turn a profit by selling off development rights they had no intention of using on their own property.

    To understand how the transfer of air rights works, we first need to understand what air rights are. The New York City Zoning Resolution allots a certain amount of buildable square feet on each property lot in the city. The amount of buildable space is called the Floor Area Ration (FAR) and is determined in part by the size of the lot and its location. Many homes and buildings in the city are completed without using all of the FAR allotted to the property lot thus there are millions of square feet of unused/undeveloped air rights available for purchase. 

    For the most part, a person can only sell or transfer their air rights to a lot in which it shares a border with. Owners of landmarked property can offer their air rights to a larger pool of buyers. Even with these limitations in place, air rights are still a hot commodity. In some cases, air rights have sold for as much as 85% of the price of actual real estate in the area. As developers have continued to put up new apartments and cooperative units to address the city's housing shortage, the demand for air rights has surged. Because of zoning restrictions, most developers must first assess how much unused air rights remain in order to determine if they can complete their project to the height and size as they desire. This is especially true in older residential neighborhoods in the outer-boroughs which have seen an increase in multi-unit buildings in traditional one or two family building neighborhoods.

    The sale of air rights is normally done through a Zoning Lot Development Agreement (ZLDA). This transaction differs greatly from the sale of traditional real estate and its implications for your property will be permanent.  If you have been approached by a neighbor or developer about selling your air rights or if you are considering buying air rights to enlarge your building, we strongly encourage you to contact our firm and allow us to guide you through this process to ensure that your ZLDA is completed correctly.

    Please feel free to contact our office at (718) 713-3499 to discuss your matter in depth. 

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