Elevate Transit: Zoning for Accessibility

The Metropolitan Transportation Authority (MTA) and the Department of City Planning have proposed a citywide zoning text change designed to increase transit station accessibility (Zoning for Accessibility). The text was referred out for public review by the City Planning Commission (CPC) on April 13. The text provides a framework to coordinate the siting and provision of transit station improvements with nearby new developments and enlargements that involve ground-level construction (Development) in all but the City’s lowest-density zoning districts. The centerpiece of the proposal is a systemwide easement requirement that would apply to Developments on zoning lots of 5,000 square feet or more located within 50 feet of a mass transit station. These Developments would be required to obtain a determination as to whether a transit easement volume is needed and, if needed, provide an easement for that volume. The text also includes an expanded transit improvement bonus program and several additional avenues to obtain zoning relief where transit easement volumes or improvements are provided.

• Required Transit Easement. Developments on zoning lots of 5,000 square feet or more located within 50 feet of a mass transit station in most zoning districts would be required to obtain a joint certification from the MTA and the CPC Chair as to whether a transit easement is needed (Joint Certification) before applying to the Department of Buildings for any excavation, foundation, new building or alteration permit. If a transit easement is needed, the MTA, in consultation with the owner and the CPC Chair, would determine its size and location (the Transit Volume). A legally enforceable instrument granting an easement for the Transit Volume is required prior to the issuance of a building permit. The text provides for as-of-right targeted zoning relief to minimize potential construction and design challenges caused by a required Transit Volume (Transit Related Zoning Modifications).
  
  
• Optional Transit Easement. Developments and conversions on zoning lots of less than 5,000 square feet located within 50 feet of a mass transit station in most zoning districts may voluntarily offer to provide a transit easement volume. If an optional Transit Volume is accepted, the development or conversion is also eligible for Transit Related Zoning Modifications.
  
  
• Expanded Transit Improvement Bonus Program. Zoning for Accessibility would expand the area of applicability of the transit floor area bonus program and streamline the process for obtaining a transit bonus. A new (non-ULURP) CPC authorization (proposed ZR 66-51, Transit Bonus Authorization) would replace the existing Subway Bonus Special Permit (ZR 74-634). The Transit Bonus Authorization would still require community board and borough president review before the CPC approves the authorization. Under current zoning controls, the bonus is available only on sites adjacent to subway stations in Downtown Brooklyn and high-density commercial districts in Manhattan. The text would expand the bonus to a wider range of zoning districts and a larger geographic area within those districts. The bonus would be available to sites that provide major transit improvements located up to 500 feet (or 1,500 feet in a Central Business District) from the outermost extent of a station (which may include buildings that contain a Transit Volume). The Transit Bonus Authorization would allow floor area bonuses of up to 20% of the basic maximum FAR. As is the case with transit improvement bonuses today, the amount of floor area bonus would be determined by CPC under a standard which considers the degree to which the station improvements enhance transit customer access and the station environment.
  
  
• Additional Discretionary Approvals. Additional relief (over and above that permitted as of right by the Transit Related Zoning Modifications) from designated bulk, parking, streetscape and planting requirements is available by authorization or, if even greater relief is sought, by special permit, in conjunction with an application for a Transit Bonus Authorization and for a Required or Optional Transit Easement.

In addition to the above, the existing subway stair relocation requirements of ZR 37-40, which apply in the Special Midtown, Lower Manhattan, Downtown Brooklyn, Long Island City, Union Square and East Harlem Corridors Districts, would be eligible for Transit Related Zoning Modifications.

Observations

If Zoning for Accessibility is adopted, 501 mass transit stations would be located within districts that are subject to the Required and Optional Transit Easements, and sites within the designated distances from 157 mass transit stations would be eligible for the Transit Bonus Authorization. The streamlined process for floor area bonuses and zoning modifications could potentially provide additional flexibility and opportunities to enhance developments, but the vast scope of the proposed text and its lack of specificity raise significant concerns about its impact on affected properties.

Even the seemingly simple threshold question of whether a lot is located within 50 feet of a transit station is likely to require consultation with the MTA to determine from what part of a station the 50 feet should be measured. Properties that are subject to the Required Transit Easement must first obtain a Joint Certification before applying for excavation, foundation, new building or alteration permits, which will lengthen the predevelopment process. There are no time limits for finalizing a Transit Volume easement agreement, the execution and recording of which are a precondition to the issuance of any foundation, new building or alteration permit. Nor is there any limitation on the size of a Transit Volume or any prototypes in the text. As proposed, the timing, process and scope of the required Transit Volume are unpredictable. This will add uncertainty to valuation and therefore the ability to finance and price properties that are subject to the proposed text, and another layer of complexity to the entitlement process for Developments near transit stations throughout the City.

Clients and contacts are encouraged to reach out to the Kramer Levin Land Use Department for further information regarding this proposal.