Real Estate: Zoning/Land Use 2026 Comparisons

The United States and State Constitutions and applicable case law empowered state governments to enable local municipalities to establish zoning ordinances. New York State authorised its municipalities to adopt zoning legislation in 1913, and New York City has been a pioneer in the field of zoning since it enacted the United States’ first comprehensive zoning ordinance in 1916. Ten years later, in Village of Euclid v Ambler Realty, 272 US 365 (1926), the United States Supreme Court established the constitutionality of zoning as an appropriate exercise of the police power.

However, zoning is subject to substantive limitations. Municipal authorities have no inherent power to enact or enforce land use regulations. Such power must be granted by state legislation. The zoning enabling statutes embodied in the New York State Town Law, Village Law and General City Law fulfil this function. They define and limit the types of zoning regulations which a municipality may enact.

The zoning regulations of NYC and other cities must be enacted “in accord with a well considered plan” (N.Y. Gen. City Law § 20(25)).  A “well considered plan” need not be contained in a single document and need not be written at all. Courts ask whether a particular regulation is calculated to benefit the community as a whole, as evidenced by its consistency with a formally adopted comprehensive plan or with patterns of existing zoning regulations.

Zoning regulations must comport with the Takings Clause of the US Constitution, which requires that, where a regulation demands too much from an individual property owner in the pursuit of a public purpose, the property owner be paid just compensation. Regular planning activity has consistently been held not to reach this threshold.

In New York City, land may be used or developed either on an “as-of-right” basis or pursuant to a discretionary permitting process. “As-of-right” refers to use or development that complies with the applicable provisions of the Zoning Resolution of the City of New York (the “Zoning Resolution”) the New York City Building Code (the “Building Code”) and other laws, rules and regulations.  The Department of Buildings, the agency responsible for administering the Zoning Resolution and the Building Code, has jurisdiction over permitting of “as-of-right” development. It is required to grant such a permit where the applicant establishes that it has site control and that its plans comply with applicable law.

New York State continues to face a housing affordability crisis after many decades in which the shortage of new homes and apartments worsened while incomes did not keep pace with rising rents. To help address the housing shortage, New York State created new tax incentive programmes for affordable housing. 467-m (Affordable Housing for Commercial Conversion) is a partial tax exemption for affordable housing in new multiple dwellings created from commercial conversions. 485-x (Affordable Neighborhoods for New Yorkers) is a partial tax exemption for affordable housing created in new multiple dwellings. These tax incentive programmes are described in greater detail in 1.3 Policy Considerations, 4.2 Underwriting Standards and 4.3 Tax Implications and Other Considerations.

The New York City Department of City Planning recently completed a sweeping overhaul of the Zoning Resolution through its City of Yes initiative. City of Yes includes three components: (i) Carbon Neutrality, adopted in December 2023, to help make it easier to generate renewable energy, make buildings greener and more efficient, support the growth of electric vehicles and e-micromobility, and reduce waste and stormwater run-off; (ii) Economic Opportunity, adopted in June 2024, to support small business and entrepreneurs, foster vibrant streetscapes and commercial corridors, and boost the city’s continued economic recovery; and (iii) Housing Opportunity, adopted in December 2024, to address the city’s severe housing shortage by making it possible to build a little more housing in every neighbourhood. 

The final version of Housing Opportunity includes a mix of zoning incentives and mandates that are projected to enable the creation of 82,000 homes over the next 15 years. They include:

• in certain zoning districts, a 20% increase in the basic maximum floor area ratio (FAR) and a commensurate increase in building height for projects that provide permanently affordable housing (at deeper affordability levels than the inclusionary housing programme which it replaced);
• expanding the universe of buildings eligible for residential conversion under certain more relaxed light and air standards of the New York State Multiple Dwelling Law to include non-residential buildings (other than hotels) located anywhere in the city that were constructed prior to 1991, allowing underused, non-residential space to turn into homes;
• eliminating or reducing residential parking mandates in much of the city;
• establishing new higher-density residential districts that, for the first time, allow more than 12 FAR of residential use on an as-of-right basis (at 15 FAR and 18 FAR); and
• making it easier for individually landmarked buildings to sell their unused development rights, while keeping all historic preservation rules in place.

New York State has made several policy changes to encourage the production of mixed-income and affordable housing. These include the following.

• The 485-x Affordable Neighborhoods for New Yorkers Tax Incentive (the “ANNY Program Benefits”) programme to provide a real property tax exemption for the construction of new Multiple Dwellings and Eligible Conversions, except for hotels. These ANNY Program Benefits are available to Multiple Dwellings or Homeownership Projects that contain six or more dwelling units, commenced after 15 June 2022, and on or before 15 June 2034, and are completed on or before 15 June 2038.
• The 467-m Affordable Housing from Commercial Conversions Tax Incentive Benefits (the “AHCC Program Benefits”) programme to provide real property tax exemptions for the conversions of non-residential buildings, except a hotel or other class B multiple dwelling, to Eligible Multiple Dwellings. These AHCC Program Benefits are available to Eligible Multiple Dwellings that contain six or more dwelling units, where the Eligible Conversions commenced after 31 December 2022, and on or before 30 June 2031, and where the Eligible Conversions are completed on or before 31 December 2039. Eligible Multiple Dwellings must be operated as rental housing.
• The Housing Acceleration Fund, a USD215 million, first-of-its kind programme to speed up construction of shovel-ready, mixed-income residential projects across New York State. The Housing Acceleration Fund is part of the state’s all-of-the-above approach to increasing housing supply to address acute housing needs and accommodate job growth statewide. It is intended to help address this vital need and spur the development of new housing statewide. The fund is catalysed by the Governor’s USD100 million investment secured in the FY26 Enacted Budget and matched with USD115 million from awarded participating lenders. Half of the state’s USD100 million investment is appropriated for projects within New York City and half is allocated to projects throughout the rest of the state. Awardees will provide USD115 million in additional capital, bringing the total amount of funding for projects within New York City to USD100 million and the amount for projects throughout the rest of the state to USD115 million. The Housing Acceleration Fund awards are expected to result in approximately 1,800 new homes statewide.

In certain jurisdictions outside of New York City, development projects may initially require subdivision review or site plan review. Subdivision review allows a municipality to review the proposed subdivision of land into smaller development parcels. The review process is intended to allow a municipality to enforce lot dimension requirements and to ensure that the subdivision meets applicable planning and design standards. Site plan review, in contrast, concerns development on a single parcel and may involve consideration of the location and arrangement of buildings and uses, vehicular and pedestrian circulation, and landscaping, among other things.

As discussed in 1.1 Main Sources of Law, projects that require only ministerial permits are referred to as “as-of-right” projects. In New York City, the Department of Buildings has jurisdiction over the permitting of “as-of-right” development. As-of-right projects involving certain design features or zoning mechanisms may also be subject to a requirement to obtain a “certification” from an agency or official other than the Department of Buildings, confirming that certain factual conditions have been satisfied. Both within and outside of New York City, development that is as-of-right with respect to zoning regulations may nonetheless require approvals pursuant to laws protecting historic resources (such as landmark buildings) and sensitive environmental resources (such as fresh or saltwater wetlands). Changes in ownership generally do not require planning approval.

The zoning entitlement process for a project may also involve discretionary land use approvals. A zoning text amendment or zoning map amendment may be sought to modify the zoning regulations applicable to a geographic area containing the applicant’s development site. Special permits, also referred to as special exceptions, may be granted to allow projects that meet defined, planning-oriented findings that are established in the zoning ordinance. Discretionary land use actions are generally subject to public review and environmental review; in New York City, public review of certain discretionary actions is governed by a process known as the Uniform Land Use Review Procedure (ULURP).

Variances authorise the use or development of a property in a manner that is not permitted by the applicable zoning ordinance. In the broadest terms, a variance is available where there are unique conditions on a property that result in unnecessary hardship in complying strictly with applicable zoning regulations. Variances are not a tool for implementing planning policy, but instead serve as a “safety release valve” to help local governments avoid a regulatory takings claim.

An entity with the power of eminent domain can condemn private property if the property will be used for a public use, benefit or purpose, and if just compensation is paid for the taking. The Fifth Amendment to the United States Constitution provides: “nor shall private property be taken for public use, without just compensation”. The New York State Constitution, Article I, § 7(a), similarly states: “Private property shall not be taken for public use without just compensation”. 

In addition to traditional public use projects such as building roads or public buildings, courts have held that both an economic use and urban renewal to eliminate blight constitute a public use. The United States Supreme Court in Kelo v City of New London, 545 US 469 (2005), petition for rehearing denied 545 US 1158 (2005), upheld by a five to four vote the condemnation of private property for the sole purpose of “economic development”. The court held that the condemnor may not take property from one party for the sole purpose of transferring it to another private party. In a concurring opinion, Justice Kennedy stated that “a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits” should be struck down (Id. at 491). 

New York State decisions have given great latitude to the condemning authority to acquire private property for use by another private party with the expectation that there will be a public benefit. The leading New York case is Yonkers Community Agency v Morris, 37 N.Y.2d 478 (1975). There the condemnor acquired private property to convey it to Otis Elevator Co. to permit Otis to expand its manufacturing plant so that it would remain in Yonkers. The Court of Appeals held that the condemnor’s primary purpose was to remove blight and that turning the land over to Otis was merely incidental.

The procedure for condemning private property for an economic benefit or urban renewal is the same as for any property and is governed by New York’s Eminent Domain Procedure Law (EDPL).

As a general matter, as-of-right development is not subject to review of the external land use or environmental impacts of the project; if the applicant demonstrates in its filing that the proposed project complies with applicable regulations, the permitting authority must issue the requested permit.

Discretionary land use approvals are another matter. Certain types of approvals, such as special permits and variances, are usually subject to required statutory findings that are designed to ensure that the proposed project does not have undue land use impacts. In addition, such actions are subject to environmental review pursuant to New York State’s Environmental Quality Review Act (SEQRA), which is administered in New York City through regulations known as City Environmental Quality Review (CEQR).

The SEQRA process is administered by a “lead agency”, which in most cases is the agency with jurisdiction over the requested land use action. The first step in the SEQRA process is the preparation of an Environmental Assessment Statement (EAS), which evaluates the potential effects of the proposed project or action on natural or man-made elements of the environment. If the lead agency finds that the proposal will not have significant adverse impacts on the environment, then it will document its determination with a Negative Declaration or a Conditional Negative Declaration, and the SEQRA process will end. If, on the other hand, the lead agency finds that the proposal may have a significant adverse impact on the environment, it will document its decision with a Positive Declaration. A Positive Declaration requires the preparation of an environmental impact statement (EIS) to more fully analyse the proposal.

SEQRA’s procedural requirements for an EIS include:

• the preparation and review of a draft scope of work, outlining the analyses to be included in the EIS;
• a public hearing on the draft scope of work;
• the preparation and review of a Draft EIS, which is also subject to comment and a public hearing;
• the preparation and review of a Final EIS; and
• the issuance by the lead agency of a Notice of Completion.

The agency decision on the application must include a finding that any adverse environmental effects of the project have been avoided or mitigated to the maximum extent practicable. Usually, any mitigation measures relied on in making this finding are incorporated into the project as conditions to the requested approval.

Large, multi-phase projects may present an issue for developers and regulatory authorities, insofar as such projects often require significant, up-front expenditures and involve future development phases for which specific details are not known at the time of project commencement. A number of states have addressed this problem by enacting statutes that authorise municipalities to enter into development agreements with private parties. These development agreements seek to mitigate the risk that future zoning changes present to large projects – and thereby provide developers and lenders with an assurance of continuity – by freezing for a period of time the zoning controls in effect on the date of the agreement. 

New York does not have such a statute. Regulatory authorities instead utilise specific types of discretionary approvals to facilitate large projects. At the state level, the Empire State Development Corporation (ESDC) is authorised to approve specified types of projects, often on the condition that ESDC maintain some property interest in the project, and to override local zoning regulations in connection therewith. The purpose and scope of the project, including any applicable development controls and zoning overrides, are set forth in a general project plan (GPP). The adoption of the GPP is subject to a public hearing and to environmental review, among other procedural requirements. In most cases, the aim is for the GPP to define the project and development controls with enough specificity that the community understands the project and its impacts, while also allowing for future design changes that do not significantly impact the project scope.

In New York City, large sites with multiple proposed buildings may be designated as a “large-scale development”, which may consist of a single zoning lot or multiple zoning lots that are contiguous or separated by streets. To facilitate site planning for these projects, the Zoning Resolution empowers the City Planning Commission to approve modifications to zoning regulations to reallocate floor area, dwelling units, lot coverage, open space and required parking without regard to zoning lot lines or zoning district boundaries, and to allow building envelopes that do not comply with underlying district regulations. Such actions are subject to public review and environmental review, and the applicable statutory findings generally require consideration of the impacts of such modifications on the surrounding community. To provide assurance of continuity of development, the Zoning Resolution allows the approvals for the entire project to be vested upon completion of “substantial construction” of just one building, which is usually understood to mean the completion of footings and foundations for the first building in the project. The Department of City Planning has also developed standards for application drawings that accommodate some amount of future design flexibility for future development phases. In cases where a proposed design change is outside the scope of the approved drawings, the developer must return to the City Planning Commission or Department of City Planning for further approval.

Land use agencies are generally authorised to impose reasonable conditions on the grant of a discretionary land use approval, provided that the conditions do not constitute an impermissible land use exaction. 

An exaction is a condition to a land use entitlement that requires the property owner to dedicate a portion of the property to public use, often in the form of an easement, or make a monetary contribution. An exaction is intended, at least hypothetically, to mitigate the anticipated negative impacts of the entitlement and the resulting development. The US Supreme Court has established that an exaction may be deemed constitutional as long as there is a “nexus” and a “rough proportionality” between the property interest that the government demands and the impact of the applicant’s proposal (Nollan v California Coastal Commission, 483 US 825 (1987); Dolan v City of Tigard, 512 US 374 (1994)). The land use agency granting the entitlement must make an “individualized determination” that the public benefit derived from the exaction offsets the burden imposed by the proposed use or development.

It is often easier to establish a nexus and rough proportionality for a dedication of land or facilities than it is for a monetary contribution, the latter being more vulnerable to a claim of impermissible “zoning for dollars”. Monetary contributions are more likely to be acceptable when established in the zoning ordinance as a uniformly applied condition to the utilisation of a district-wide zoning mechanism – such as a transferable development rights mechanism – and where the contributions are required to be deposited into a common fund that is used to offset the land use impacts of that mechanism.

Land use agencies usually establish the conditions to a land use approval by incorporating them into the written resolution approving the action; by requiring the applicant to amend the application drawings prior to approval to incorporate desired project components; and/or by requiring the applicant to enter into a recorded declaration that provides for the grant of restrictive covenants or easements. Community benefits agreements may also be used to implement conditions that are not appropriately memorialised by one of these other means, though such agreements may be limited in their enforceability under certain circumstances.

Article 78 proceedings are lawsuits mainly used to challenge an action (or inaction) by agencies of New York State and local governments. It is named after the section of New York law that sets out the rules for this kind of case: Article 78 of the New York Civil Practice Law and Rules. Article 78 is generally unavailable if the decision or determination being appealed is not yet final. Generally, a determination is final when there remain no further appeal options within an agency.

In New York City, Chapter 27, Section 666 of the New York City Charter authorises the Board of Standards and Appeals (BSA) to hear and decide appeals from a final determination by the Department of Buildings. The BSA will hold one or more public hearings on an appeals application before voting on the application. The BSA Rules (Section 1-06.3) require that an application to appeal a final determination by the Department of Buildings be filed within 30 days from the date of the final determination.

An appeal of a decision of the BSA, or of the City Planning Commission and/or City Council, can be made through the filing of an Article 78 proceeding in the New York State Supreme Court. To challenge a BSA decision through an Article 78 proceeding, the petition must be filed within 30 days of the issuance of the BSA’s resolution. An appeal of the decisions of other agencies must generally be commenced “within four months after the determination to be reviewed becomes final and binding” (CPLR § 217(1)).

The ULURP is New York City’s approval process for changes to how land is used, as required by the City Charter. ULURP provides a relatively comprehensive approach to receiving and incorporating public comment into the land use decision-making process. “Third parties”, such as community groups and neighbours affected by a land use application, are afforded the ability to testify at public hearings throughout ULURP. The ULURP process begins once the City Planning Commission (CPC) certifies that an application is complete and refers the application to the local community board. The applicable community board reviews the application for 60 days, during which time it can hold a public hearing and vote on a recommendation with respect to the application. The application is subsequently reviewed by the Borough President for 30 days, the CPC for 60 days, during which time the CPC must hold a public hearing, and the City Council for 50 days, during which time the City Council must hold a public hearing and vote. Community boards and the Borough Presidents each have an advisory role in the ULURP process.

As discussed in 2.6 Rights to Appeal, an appeal of an action by a New York City agency can be made through an Article 78 proceeding. However, a petitioner in an Article 78 proceeding must demonstrate that they have standing – ie, they must show “injury in fact”, meaning that they will be harmed by the challenged administrative action.

As discussed in 2.5 Conditions to Approval, land use agencies usually establish the conditions to a land use approval by incorporating them into the written resolution approving the action; by requiring the applicant to amend the application drawings prior to approval to incorporate desired project components; and/or by requiring the applicant to enter into a recorded declaration that provides for the grant of restrictive covenants or easements. Community benefits agreements between a developer and one or more community groups may sometimes be used to implement conditions that are not appropriately memorialised by one of these other means, though such agreements may be limited in their enforceability under certain circumstances.

The Urban Development Corporation Act, New York State Unconsolidated Laws, Chap. 24, Subchapter 1, Section 6251, et seq. (the “UDC Act”), authorises the ESDC to undertake, in co-operation with municipalities and the private sector, a variety of projects, including a “Land Use Improvement Project”, which is designed for the “clearance, replanning, reconstruction and rehabilitation” of a “substandard and insanitary area” (UDC Act § 6253(6)(c)). The UDC Act provides ESDC with a variety of powers that may be used to implement a Land Use Improvement Project, one of which is the power to override local zoning (UDC Act § 6266(3)).

For ESDC to undertake a Land Use Improvement Project and exercise its power to override local zoning regulations, it would have to prepare a GPP describing the project. The GPP would include general development controls and detailed design guidelines to govern the development of the property included in the GPP. ESDC would negotiate the specific terms of the general development controls and detailed design guidelines with the Department of City Planning, and that agency’s role in the GPP approval process would typically be memorialised in a Memorandum of Understanding.

Once the GPP was found to be acceptable to the ESDC, it would be subject to review under the SEQRA. If required, a draft environmental impact statement (DEIS) would be prepared, which would analyse any potentially significant adverse impacts arising from development in accordance with the Plan.

After completion of the DEIS, ESDC must publish notice of the preliminary adoption of the GPP and provide a summary thereof to the Mayor and the affected Community Board. The GPP must also be provided to the Chair of the CPC. ESDC is then required to conduct a public hearing on the GPP. Within 30 days of the public hearing, CPC may submit a report to ESDC recommending approval, disapproval or modification of the GPP. Prior to approving the GPP, a final environmental impact statement would have to be prepared and ESDC would have to issue SEQRA findings. If CPC recommends disapproval or modification of the GPP, its affirmance by ESDC requires a two-thirds vote of its directors. In any event, as a matter of policy, ESDC does not exercise its zoning override power in the City without the City’s consent.

While the UDC Act requires ESDC to comply with state building and fire prevention codes, upon approval of the GPP, no further approvals or permits would be necessary to develop the project in accordance with the GPP. Any future amendments or modifications to the GPP would be reviewed and approved by ESDC.

Approvals by the Department of Buildings

Construction pursuant to plans approved by the Department of Buildings may continue absent a change in the zoning or other law upon which such approval was based. In the event of a zoning change, steps may be taken to “vest” the right to continue construction pursuant to the previously applicable zoning regulations upon which a project was approved.

The primary standard for vesting a project under the Zoning Resolution is to complete all foundation work pursuant to a “lawfully issued” building permit. A lawfully issued building permit is one based on an approved application showing complete plans and specifications and authorising the entire construction of the building (ZR 11-31(a)). If foundations are 100% complete prior to the zoning change, then a project will be vested (ZR 11-331). However, at least a temporary certificate of occupancy (TCO) for the building must be issued within two years from the date of the zoning change to perfect the vesting (ZR 11-332). The deadline to obtain a TCO may be extended, upon application to the BSA, for two terms of two years each provided that the BSA finds that substantial construction has been completed and substantial expenditures made, subsequent to the granting of the building permit.

The Zoning Resolution allows the BSA to grant a six-month extension of time to complete foundations if the requirements for standard vesting set forth above have not been met (ZR 11-331). The extension can be granted by the BSA pursuant to an application made within 30 days of the date of the zoning change. To approve the application, the BSA must find that “substantial progress” has been made on the foundation prior to the zoning change, a condition that, in prior cases, has typically been met where 50% or more of the hard costs associated with the foundation have been incurred or irrevocably committed prior to the zoning change. Similar to standard vesting, a TCO for the building must be issued within two years from the date of the zoning change in order to perfect the vesting. The deadline to obtain a TCO may be extended, upon application to the BSA, for two terms of two years if the BSA finds that substantial construction has been completed and substantial expenditures made, subsequent to the granting of the building permit.

As an additional pathway for vesting, the courts have held that a vested right to complete construction of a new building may also be acquired pursuant to common law principles, which are based on broad considerations of due process and equity. It has also been held that the BSA has the authority to determine whether a development has acquired vested rights pursuant to common law principles. Vested rights may be obtained under common law where, pursuant to an application, the BSA finds that:

• “substantial construction” has occurred – ie, at least some physical improvements that are an integral and necessary part of the project have been made prior to the zoning change;
• “substantial expenditures” in furtherance of the project have been incurred prior to the zoning change (typically 5–15% of the project cost, including soft costs); and
• the inability to continue and complete construction under the prior zoning will result in a “serious loss” – ie, that redesigning the project so that it is a conforming use would eliminate a specified percentage of a project’s value (based on an appraisal), and that the need to pursue a special permit would result in significant additional time and costs, in either case preventing the owner from recovering its costs.

Approval of the application would allow up to four years from the date of the BSA’s approval to obtain a certificate of occupancy (also subject to renewals upon application to the BSA).

Approvals by the CPC

With respect to authorisations and special permits granted by the CPC, for most developments, the Zoning Resolution provides that “substantial construction” must be completed within four years from the effective date of the approval to preserve the rights granted under the approval. If substantial construction is not completed, the approval will automatically lapse and the rights granted pursuant to the approval will terminate. Renewals may be granted for up to two additional three-year periods where the City Planning Commission finds that the facts upon which the approval was granted have not substantially changed. 

The Department of Buildings is responsible for determining if substantial construction has been achieved. For the construction of a new building, the Department has, in the past, interpreted substantial construction to mean the completion of excavation and the installation of all footings and foundation walls in accordance with a validly issued building permit for the entire building, with no cessation of work.

Approvals by the BSA

With respect to variances and special permits granted by the BSA, unless the Board’s resolution approving a special permit or variance specifies otherwise, “substantial construction” must be complete within four years of the approval date to avoid lapse of the approval. As with approvals by the City Planning Commission, the Department of Buildings is responsible for determining if substantial construction has been achieved. The Board’s rules allow for reinstatement of expired approvals in most cases, subject to required procedures and findings and payment of additional fees.

As described in 2.6 Right to Appeal, in New York City, Chapter 27, Section 666 of the New York City Charter authorises the BSA to hear and decide appeals from a final determination by the Department of Buildings. The BSA Rules (Section 1-06.3) require that an application to appeal a final determination by the Department of Buildings be filed within 30 days from the date of the final determination.

Land use approvals and denials, including decisions by the BSA or of the New York City Planning Commission and/or New York City Council, may be challenged by filing a petition pursuant to Article 78 of the New York Civil Practice Law and Rules. To challenge a BSA decision through the filing of an Article 78 proceeding, the petition must be filed within 30 days of the issuance of the BSA’s resolution. An Article 78 proceeding generally must be commenced “within four months after the determination to be reviewed becomes final and binding” (CPLR § 217(1)).

Article 78 permits judicial review of whether the governmental actor in a land use decision (i) failed to perform a duty enjoined on it by law, (ii) proceeded without or in excess of its jurisdiction, (iii) acted in violation of lawful procedure, arbitrarily or capriciously or in abuse of its discretion, or pursuant to an error of law, or (iv) made a determination unsupported by substantial evidence on the record (CPLR § 7803).

Attempts to overturn a land use decision most commonly seek to thwart an approval by challenging the sufficiency of the City’s environmental review process. Under the SEQRA, as implemented in New York City by the CEQR regulations, discretionary land use actions must undergo environmental review unless they are exempted. This creates opportunities for opponents of an action or development to argue that the land use agency approving an action failed to comply with the required review procedures and that the land use approval therefore is invalid. Such challenges, however, are rarely successful. Judicial review of an agency’s SEQRA determination “is limited whether the agency identified the relevant areas of environmental concern, took a ‘hard look’ at them, and made a ‘reasoned elaboration’ of the basis for its determination” (Matter of Riverkeeper, Inc. v Planning Bd. of Southeast, 9 N.Y.3d 219, 232-33 (2007)). Courts will only annul a SEQRA determination if it is found to be arbitrary, capricious or unsupported by the evidence.

Challenges to land use decisions on other grounds are less common. On occasion, a petitioner will, for example, attempt to argue that an agency’s interpretation of applicable law (such as the applicable zoning ordinance) in its approval or denial of an application was unlawful. Such petitions generally face long odds, as courts will defer to a specialist agency’s reasonable interpretation of technical statutory language. Other grounds for challenge may be subject to different standards of review, depending on the nature of the claim.

Given the generally limited scope of judicial scrutiny, most land use decisions are not challenged in court. Highly publicised, controversial approvals may face a higher likelihood of an Article 78 petition – but successful Article 78 challenges are very rare.

When a developer is aware that community members and/or neighbouring property owners oppose an approval, the developer can work to soften that opposition by negotiating with stakeholders the scope of the project and the benefits it will offer. For example, a developer might offer to change the massing of a proposed development to protect a neighbour’s views, or to provide community amenities to increase the project’s appeal to the public. Developers must weigh the costs of such concessions against the threats that the project’s opponents will pose – both in the land use approval process and in the potential for litigation.

If opposition cannot be neutralised, and a suit aiming to invalidate the approval is filed, then the most important question for proponents of a project is whether the petitioner elects to file for injunctive relief to halt construction. Under the Dreikausen doctrine (see Matter of Dreikausen v Zoning Bd. of Appeals, 98 N.Y.2d 165 (2002)), if the petitioner attempts to preserve the status quo through a preliminary injunction, then a developer continues construction during pending litigation at its own risk – even if the injunction is denied – and the court may order demolition of the development if the approval ultimately is invalidated. However, if the petitioner fails to “seek injunctive relief at every step” of the case, and construction is substantially completed before the case is resolved, then the court likely will find the case moot, dismiss the proceedings, and allow the development to remain (see Matter of Comm. for Environmentally Sound Dev. v Amsterdam Ave. Redev. Ass’n, 194 A.D.3d 1, 12 (1st Dep’t 2021)).

As described in 1.2 Main Market Trends and Deals, City of Yes for Housing Opportunity utilises a mix of zoning incentives and mandates to encourage housing production. These include the Universal Affordability Preference (UAP) which provides for up to a 20% floor area bonus for qualifying developments in medium and high density residential districts that provide permanently affordable housing, and by expanding the universe of buildings eligible for residential conversion under certain more relaxed light and air standards of the New York State Multiple Dwelling Law to include non-residential buildings (other than hotels) located anywhere in New York City that were constructed prior to 1991. 

The above-mentioned Housing Opportunity initiatives are complemented by certain state tax incentive programmes. As described in 1.3 Policy Considerations, New York State adopted (i) the 485-x Affordable Neighborhoods for New Yorkers Tax Incentive programme to incentivise the creation of affordable housing in New York City, and (ii) the 467-m Affordable Housing from Commercial Conversions Tax Incentive Benefits programme to incentivise conversions of non-residential buildings (excluding hotels) to residential uses.

The New York City Department of Housing Preservation and Development (HPD) administers the 485-x Affordable Neighborhoods for New Yorkers Tax Incentive programme and the 467-m Affordable Housing from Commercial Conversions Tax Incentive Benefits programme. 

HPD will review the initial monthly rents, unit sizes and unit locations proposed for the Affordable Housing Units for (i) the proposed Eligible Site as part of the RPTL § 485-x Affordable Neighborhoods for New Yorkers Application, or (ii) the proposed Eligible Conversion as part of the RPTL § 467-m Affordable Housing from Commercial Conversion Application and will determine whether the proposed Eligible Site or Eligible Conversion meets these requirements in accordance with the provisions set forth in RPTL § 485-x or RPTL § 467-m, as applicable, and any rules HPD proposes in accordance with the statute.

Projects that are considering participating in the 485-x Affordable Neighborhoods for New Yorkers Tax Incentive programme should be aware of the following programme requirements.

• Permanent affordability: 
1. all Affordable Housing Units will be permanently affordable and all Restricted Units, which include Affordable Housing Units and dwelling units subject to Rent Stabilization in accordance with Option C, will be permanently rent stabilised; and
2. all Restricted Units occupied by tenants whose eligibility was approved by HPD also remain subject to Rent Stabilization until such tenants vacate if such tenants occupied such unit before the Application was denied or such Application was either never filed or withdrawn.
• Replacement ratio – if the land on which a project is located contained any dwelling unit three years prior to start of construction, the project must provide at least one affordable unit (or in the case of Small Rental Projects, one restricted unit) for each unit that existed three years prior to the start of construction and was thereafter demolished, removed or reconfigured.
• Common space – affordable and market units must share the same common entrances and common areas. Affordable units cannot be isolated to a particular floor or area.  
• Construction wages (increasing 2.5% annually starting 1 July 2025) (no construction wage requirement for 99 Units or less):
1. 150+ Units:
1. Zone A – lesser of USD72.45/hour or 65% prevailing wage; and
2. Zone B – lesser of USD63/hour or 60% prevailing wage; and
2. 100+ Units/all areas – USD40/hour.

The above is not an exhaustive list of 485-x requirements. Please refer to RPTL § 485-x and Chapter 63 of Title 28 of the Rules of the City of New York for more details.

The government authority responsible for enforcing land use regulations within a given jurisdiction will be defined under that jurisdiction’s local laws. In many places, including New York City, the local buildings department is granted the power to enforce restrictions on use and development, not only by administering the ministerial permitting process for development as discussed elsewhere in this practice guide, but also by carrying out inspections and issuing notices of violation for unlawful conditions. For projects that have been granted a discretionary land use approval, the agency with jurisdiction over such approval may also be authorised to enforce any requirements or restrictions that the agency imposed as a condition to its grant.

In New York City, third parties do not have private causes of action to enforce violations of land use regulations, except to the extent that the conditions that give rise to a violation also constitute a nuisance under common law or infringe on the third party’s property rights. Nonetheless, a member of the public may facilitate the City’s enforcement of land use regulations by submitting a formal complaint to or otherwise notifying the Department of Buildings when they become aware of an unlawful condition. The Department of Buildings has also integrated into its permitting process a public zoning review stage during which the applicant prepares, and the Department of Buildings then posts on its website, a basic zoning analysis that depicts the project’s use and bulk.  This process allows members of the public to notify the Department when they believe that zoning approval for a project has been issued in error.

The enforcement remedies that are available to compel compliance with land use regulations are generally a matter of local law, though jurisdictions tend to follow a common structure. Usually, municipal authorities may impose monetary penalties or, in cases of recurring or hazardous violations, seek injunctive relief or revocation of a building’s certificate of occupancy.

In New York City, government authorities have the power to seek civil and criminal penalties; to bring a civil action to preliminarily or permanently enjoin the zoning violation or to obtain a temporary closing order; and to make an application to the City’s BSA to revoke a building’s certificate of occupancy. The City has legal authority to seek multiple remedies simultaneously and, theoretically, to treat each day during which the unlawful condition exists as a new violation. Notwithstanding this broad authority, the City typically limits its enforcement actions to civil penalties in the first instance.

Courts have upheld a municipality’s discretion not to enforce zoning violations. See – eg, Rivergate Co. v Bd. of Standards and Appeals, 144 A.D.2d 266 (First Dep't, 1988). Conversely, an enforcement action for a zoning violation may be struck down by a court if it is grossly disproportionate to the offence. In Two Lincoln Square Associates v Board of Standards and Appeals, a lower New York court held that the City could not revoke the entire certificate of occupancy for a 37-story mixed-use building, containing over 300 apartments and other uses, where the violation in question consisted of the illegal operation of a racquetball club within the building and certain “technical deviations” from the approved plans for a public open space. In its analysis, the court noted that the property owner had made a good faith effort to address the violations and that the revocation of the entire certificate of occupancy would result in significant economic losses for the property owner.

Applicants for discretionary land use approvals in New York City must comply with the lobbying laws of New York City and New York State when they exceed, or expect to exceed, USD5,000 in compensation to lobbyists, including internal employees who lobby on the applicant’s behalf. Lobbyists must register with the New York City Lobbying Bureau and, in many cases, with the New York State Commission on Ethics and Lobbying, within 15 days of the first lobbying activity. They are then required to file reports on a bi-monthly basis, detailing the lobbying activities, targets, expenses and compensation amounts incurred during the relevant period. The applicant (or “client”) must file reports annually for New York City and semi-annually for New York State.

Additionally, applicants in New York City who are applying for a land use approval that will go through the ULURP are entered into the Doing Business With the City database. Individual applicants, the principal officers and senior managers of an applicant organisation, and their lobbyists are restricted in how much they may contribute to mayoral campaigns, as well as campaigns of borough presidents and city council members, for the duration of the ULURP process and for 120 days after.

Architects and engineers who assist with the preparation of land use applications are also required to adhere to the above requirements, though the threshold for them to register as lobbyists is USD10,000 in compensation and they need not report many of their customary activities, such as drafting plans and presenting to community boards.

The Freedom of Information Law (FOIL) provides the public right to access records maintained by New York State and local government agencies with certain exceptions. These exceptions generally include information that would create a statutory conflict, certain deliberative or non-factual inter- and intra-agency communications, information that would constitute an unwarranted invasion of privacy, trade secrets or commercially sensitive information, information that could endanger the life or safety of any person, information that would impair present or imminent contracts or collective bargaining agreements, and information that would interfere with law enforcement or judicial proceedings. It is important to note that these exceptions are interpreted strictly; blanket denials of FOIL requests are generally not permitted. If the requested materials contain information that is excepted from disclosure, the materials will often be released partially, with that information either deleted or redacted.

Since land use approvals are processed by municipal government agencies, land use applications are subject to FOIL. In the context of New York City land use approvals, including those that will go through ULURP, applicants should assume that all documents submitted in connection with their application will be subject to public disclosure. Materials that are usually disclosable include plans, architectural drawings, surveys, maps, application form responses, environmental analysis, supporting documents and records of correspondence. Sensitive or personal information contained in these materials will not be disclosed to the public. For example, in the case of the Doing Business With the City Form, a form generally required as part of ULURP which asks for home addresses, employment and other personal information, only the names and titles of the officers, owners and senior managers reported on the form will be made available to the public, as well as information about the organisation itself.