New York's Cooperative and Condominium Community

Habitat Magazine Insider Guide




Want More Monthly-Maintenance Fees or Common Charges? Expand Penthouses!

Jordan Most in Board Operations on January 29, 2013

New York City, Upper East Side, SoHo

Jan. 29, 2013

These co-op boards accomplished this by using a special permit mechanism provided for in the city's zoning regulations. If the zoning works out right, the special permit allows the modest enlargement of existing residential buildings (usually pre-1961 buildings, although there are some exceptions). Here are the steps you should follow.

As of Right

The simplest way to add floor area is an "as-of-right" enlargement, which means that — as long as the project satisfies zoning and the building code, and the proper permits have been secured — the board can hire a contractor and proceed with the enlargement. Your architect simply files zoning-compliant plans at the Department of Buildings (DOB), secures a building permit, and proceeds with the work. This is how most development takes place in New York City.

If your the building is overbuilt, fully built or nearly fully built under the applicable zoning, there are complicated formulas involving the "floor-area ratio" (FAR) that come into play. Your architect or zoning counsel can give you details — including of ways you might still be able to enlarge that fully built or overbuilt building.

One way to do that is to enter into a transfer of development rights transaction, or air rights deal, with an underbuilt neighbor. The lesser known option employs the Board of Standards and Appeals (BSA) special permit under Section 73-621 ("Enlargement, change of use, or extension within buildings containing residential uses") of the city's zoning resolution. The special permit allows you to exceed the maximum permitted floor area by 10 percent.

The Special Permit

What does a busy board need to know about the special-permit process? The first step is to determine whether you are eligible; that involves finding out if the existing building exceeds 110 percent of the maximum allowed FAR and whether the building is a pre-1961 structure.

Special permits, in general, are discretionary land-use actions undertaken by the BSA or the City Planning Commission and are authorized by the city's zoning resolution. A special permit is very different from a variance, which is seen as "relief" from the zoning regulations as applied to a property with a unique condition and hardship. The special permit requires no finding of unique conditions or hardship. The simple desire to realize the benefits of the special permit is a legitimate basis for such an application. Moreover, such findings are generally easier to satisfy than the complex variance findings.

Once you've determined your special permit eligibility, the board can proceed with seeking the special permit grant from the BSA. The cost of the floor area expansion under the special permit includes filing fees at the BSA, fees of land use and design professionals, and the time it takes to secure the approvals from the BSA (roughly six to eight months).

But it could be worthwhile. The new floor area, via a special permit, will add value to the co-op or condo building. Indeed, before you walk away from a contemplated enlargement because it seems to be prohibited by zoning or because a variance seems too difficult, consider the special permit.


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