In New York City, not all development projects can fully comply with the NYC Zoning Resolution. When a proposed project doesn’t strictly align with these extensive land-use and bulk restrictions, property owners can pursue a ‘discretionary action’ to secure the necessary approvals.
In New York City property development, a discretionary action is a formal approval required for projects or land use changes that do not comply with existing zoning regulations. Unlike “as-of-right” developments, these proposals—which include rezonings, special permits, and variances—require public officials to exercise their judgment through a rigorous review process for approval.
I am Jorge Fontan, an architect in New York and owner of Vinculum Architecture, a Manhattan-based architecture firm. At Vinculum we work on a variety of project types, including those requiring Discretionary Actions such as Rezonings and Variances in New York. In this article, I will explain different types of Discretionary Actions while reviewing some of the key issues that help us determine which is the best path for a specific project.
Rezoning
New York City is organized into different zoning districts with their own rules for land use and building bulk. These bulk regulations define a project’s three-dimensional ‘envelope,’ including its height, floor area ratio (FAR), and physical massing. When a developer’s proposal exceeds these established limits, they must seek a Zoning Map Amendment, commonly known as a rezoning, to legally reclassify the property and unlock greater development potential. Rezonings are an example of Discretionary Actions as they are approved at the discretion of the City Planning Commission and City Council.
A rezoning is a quintessential discretionary action because it represents a fundamental change to the city’s official map. Unlike “as-of-right” projects that only require a building permit, a rezoning has no guaranteed outcome. Its approval rests entirely on the judgment of public officials who must determine if the change aligns with the city’s long-term planning goals.
The path to a successful rezoning is rigorous and must go through the Uniform Land Use Review Procedure (ULURP). This mandates public hearings and recommendations from the local Community Board and Borough President, culminating in a vote by the City Planning Commission (CPC) and the New York City Council. Rezonings are often the subject of political negotiation, where developers may be required to provide public benefits, such as affordable housing under Mandatory Inclusionary Housing (MIH), in exchange for the right to build larger buildings.
You can see another post we wrote if you would like to learn more about the Rezonings in NYC.
Zoning Variance
In New York City’s every zoning district is governed by a unique set of restrictions. However, the city’s diverse topography and irregular lot sizes mean that some sites cannot practically comply with the NYC Zoning Resolution. When a proposed new building, enlargement, or alteration is physically or economically stifled by these rigid regulations, property owners may apply for a Zoning Variance.
A variance is a powerful discretionary action administered by the Board of Standards and Appeals (BSA). Unlike a rezoning, which changes the law for an entire area, a variance provides site-specific relief from certain specified zoning requirements—such as yard dimensions, height limits, or parking mandates. Because a variance is “discretionary,” the BSA is not required to grant it; instead, the board must exercise its judgment to determine if the request is justified.
To secure a variance, an applicant must satisfy the five findings outlined in the Zoning Resolution:
- Unique physical condition
- No reasonable return
- Will not alter neighborhood character
- Hardship is not self-created
- Minimum variance necessary
Special Permits
In New York City property development, a special permit is a discretionary action that authorizes a specific land use or architectural modification that is permitted by the Zoning Resolution only under strict conditions. Unlike a variance—which provides relief from a hardship—a special permit covers uses the city has already deemed acceptable in principle, provided they meet predefined criteria to ensure neighborhood compatibility.
Special permits are primarily issued by two bodies: the City Planning Commission (CPC) or the Board of Standards and Appeals (BSA). The jurisdiction depends on the type of request:
- CPC Special Permits: These often involve large-scale impacts, such as new hotels, public parking garages, or significant density bonuses. These actions are typically subject to the full Uniform Land Use Review Procedure (ULURP), including public hearings and a final vote by the City Council.
- BSA Special Permits: These generally handle smaller, site-specific modifications, such as minor residential enlargements. These follow a shorter administrative review process and do not require City Council approval.
Ultimately, the “discretionary” nature of these permits means that even if an applicant meets every technical requirement, the city may still impose “conditions and safeguards” to minimize adverse effects on the community or even deny the application.
Authorization By CPC
- Bulk Modifications: The CPC may authorize increases in building bulk such as height or yard and setback requirements.
- Use Authorizations: While manufacturing districts usually prohibit housing, the M1-1D through M1-5D districts allow for residential development specifically by CPC authorization.
Discretionary Actions in NYC
Navigating discretionary actions like Rezonings, Variances, Special Permits, and Authorizations is crucial for New York City development projects that do not comply with zoning regulations. Each process, whether it’s a Rezoning requiring the Uniform Land Use Review Procedure (ULURP) or a Variance requiring specific findings, involves strategic expertise and understanding city planning goals. The most important thing I can tell you about discretionary actions is knowing which is right for you and how to properly present the proposal is critical to the project’s successful approval.
Thank You for Reading Our Article on NYC Discretionary Actions for Property Development
I hope this was helpful. If you would like to speak with an architect about a potential project, please get in touch with us directly at Vinculum Architecture.
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This post was written by Jorge Fontan AIA a Registered Architect and owner of New York City based architecture firm Vinculum Architecture. Jorge Fontan has earned 3 degrees in the study of architecture including two degrees from the City University of New York and a Masters Degree in Advanced Architectural Design from Columbia University. Jorge has a background in construction and has been practicing architecture for 20 years where he has designed renovations and new developments of various building types.
