On November 3, 2023 CHPC submitted comments on the EIS Draft Scope of Work for the City of Yes for Housing Opportunity zoning text amendment proposal. These comments note CHPC’s support for the broad outlines of the proposal, and go on to enumerate a number of items that could be changed to maximize the benefits of the proposal, as well as a number of details that will be important to define as the project progresses. Among the recommendations in our comments are:
- Allowing supportive housing a higher FAR as-of-right rather than via discretionary action
- Ensuring that emergency shelters can ultimately be converted to permanent housing
- Allowing more developments that use the Universal Affordability Preference (UAP)s higher FAR to use flexible non-contextual bulk regulations
- Ensuring that the EIS includes sufficient analysis to support the launch of a basement apartment legalization program
Read the full comments below.
CHPC strongly supports the Department’s advancement of citywide zoning reforms to enable the construction of more housing and a wider range of housing types in neighborhoods throughout the city. These types of changes are essential to alleviating our housing shortage and cultivating inclusive neighborhoods.
Zoning may have been intended as a “loose sweater” that allows room for growth. But decades of changes, adding layers of restriction and complexity, have made zoning a straitjacket that prevents us from combatting our housing crisis. For example, since 2000, 59% of our low-density residential land has been rezoned, primarily to make it more restrictive of new housing.
The current proposals would help undo the exclusionary effects of these previous changes, and in particular would support Black homeowners and other homeowners of color, who often rely on rental income or living space in basements or cellars.
There are certain areas in which the scope of work for the EIS should be expanded to ensure that the proposal considered is expansive enough to address the purpose and need for the proposed action. These are detailed in the letter that follows. There are also many important issues and details to be addressed in the final proposal as it is developed. These are described here as well.
CHPC looks forward to continuing to provide constructive feedback on this important proposal in the coming months.
Following are detailed comments about the proposed actions in the City of Yes for Housing Opportunity Draft Scope of Work, along with issues that need to be considered in their further development and changes that can be made to address these issues. They are presented sequentially based on the content of the project description, rather than in order of priority.
Proposal 1.1, Universal Affordability Preference
- The final proposal will need to provide details about how FAR calculations work when there are multiple uses on the zoning lot, and in areas subject to the Inclusionary Housing program. While the proposal can and must! simplify many aspects of the Inclusionary Housing program, there still need to be certain rules that apply to Inclusionary Housing Designated Areas (IHDAs). For instance:
- For an R6/C overlay development:
- Zoning allows 2.43 ordinary residential, up to 1 FAR of community facility, up to 1 FAR of commercial. UAP FAR is 3.9. How would FAR rules work?
- If standard rules apply: 2.43 R + 1 CF + 1 C = 4.43 max, no UAP needed. In an IHDA, if these rules applied, this would erode the incentive for affordable housing as compared to current zoning and arguably contradict the purpose of mapping IHDAs
- In current IHDA regulations apply: the “base” R FAR applies, and could only be increased via UAP 2.43 R + 1.47 UAP. Any C or CF FAR allowed would not further increase the permitted FAR on the zoning lot (it effectively comes out of the 2.43 for other residential). Applying this rule to areas that arent already IHDAs would reduce the ability to build CF or C floor area.
- This suggests that either (a) something like the current IHDA regulations should be retained, or (b) a new regulation should be applied to fulfill the intent of IHDA mapping
- What will happen to the “base” FAR in IHDAs, which is typically lower than the standard residential FAR for the district?
- The replacement of the R10 and IHDA regulations requires a decision about development rights previously generated by IH projects with affordable housing plans approved prior to the date of adoption.
- There is a universe of projects that have been built (or preserved) with financing from Inclusionary Housing development rights that have not yet been built or sold to a receiving site. Unless provisions are included allowing these development rights to be used on eligible receiving sites, they would become valueless. This could put at risk the City’s ability to enforce IH requirements for the floor area generating these development rights.
- These IH development rights could also be impaired if potential receiving sites were to have alternative means of achieving the same floor area, such as with a tax exemption that replaces 421-a. In this circumstance, presumably only condominium developments would purchase remaining IH development rights.
- DCP and HPD should assess the universe of outstanding development rights in order to assess the implications of this change and determine how the proposal needs to be modified to address them.
- Note that in the absence of a replacement for the 421-a program, the elimination of the R10 program would reduce the availability of viable programs to support affordable housing in the highest-density districts.
- How will FAR be calculated for height-factor buildings in noncontextual R6 through R9 districts? There is not an obvious or simple way to allow additional FAR within the height factor/open space calculation. The most straightforward approach would be to eliminate the height factor option entirely for UAP and make the non-contextual QH envelopes of 23-664(c) available to all UAP buildings in non-contextual districts, not just those on irregular sites see Proposal 1.3b below.
- The affordability standards for UAP, particularly income limits, will need to be defined. For reasons discussed further below, these should be simple and easy to verify.
- Income averaging affords a degree of flexibility that is helpful. But to the extent that it adds complexity to the process of initial approvals and asset management, this would impair the ability to bring the UAP program to scale. What form of verification would be necessary for DOB to issue a building permit for the UAP floor area? Would HPD staff be required to sign off that floor area meets the affordability and income averaging requirements? Regulations must support simple and straightforward approvals.
- In a building containing both UAP affordable and market-rate units, will there be a unit distribution or bedroom mix requirement (as with IH)? This too could add complexity to approvals.
- Will HPD be obligated to issue a regulatory agreement for a building containing UAP if they are not funding the project or approving its compliance with 421-a or other programs?
- A citywide program cannot achieve scale if it has the procedural complexity of IH. The level of review required at HPD cannot resemble whats required for typical underwriting. The requirements must be kept as simple and streamlined as possible to avoid a process bottleneck that would limit privately financed mixed-income development or discourage it in favor of all-market-rate development.
Proposal 1.1f: Modify the ZR 74-903 Special Permit to an Authorization for supportive housing
- In light of the city’s extraordinary shelter emergency, this should be made as-of-right. Even doing so on a limited basis (e.g., with a sunset clause) would contribute to relieving the present extreme shortage of housing for people with very low incomes.
Proposal 1.2d: Remove Zoning Obstacles to Rooming Units and Shared Housing Models
- In addition to the elements described in this proposal, the text amendment should include additional measures necessary to embrace shared housing models, including expanding the definition of “income restricted housing units” to include rooming units where authorized by HPD. This would allow shared housing models to utilize the additional floor area and other forms of flexibility offered to shared housing, which would otherwise be unavailable to them.
- The zoning text should also be accompanied by changes to the Housing Maintenance Code and other applicable laws necessary to make shared housing models permissible and provide sufficient oversight of their management to ensure that owners and operators provide a suitable living environment.
Proposal 1.3b: Flexible Quality Housing Envelopes for Difficult Sites
- This should be allowed for all noncontextual sites (or at least all noncontextual sites not subject to the Sliver Rule). See above questions about how UAP (Proposal 1.1) would apply to height factor buildings.
- Note that not all buildings or even all affordable buildings use the Quality Housing program. When ZQA eliminated the height factor option for AIRS/nursing homes, the changes had implications for at least one affordable senior housing building under construction using the height factor regs.
Proposal 1.3c: Provide flexible envelopes for developments in the waterfront area
- Nearly every residential district mapped in the waterfront area has been mapped with a special district, special bulk regulations, or special permit approval. Each of these embodies an area plan of sorts. Some of these may be too restrictive, while others are not. For instance, in the Special Lower Concourse District in the Bronx, skinny building envelopes may make development impractical, while the bulk regulations in the Greenpoint-Williamsburg Waterfront Access Plan area are demonstrably working to support mixed-income development there.
- The proposal should assess whether these changes might lead to the surrender of existing special permits, or departure from approved special permit plans to build under the new regulations.
- To avoid undermining previous plans and approvals, the new regulations could be made applicable to districts mapped after the date of approval of the text amendment, and to specified areas where the current bulk regulations are deemed impractical.
Proposal 1.4: Conversions
- The proposal should add more robust provisions to allow the long-term conversion of shelters to permanent housing with affordability. The citys severe homelessness crisis requires the availability of short-term shelter accommodations, but the long-term strategy must point toward permanent housing. It would be nonsensical for zoning to permanently enshrine into regulation the existence of shelter facilities that cannot be transformed into permanent housing. A wide variety of buildings are in use as emergency shelters, with a range of previous uses and potential nonconformance/noncompliance issues with current zoning. These will generally be considered UG3 community facilities under zoning, and under the proposal some but not all would be allowed to convert to permanent housing. The proposal should allow any facility that has been in use as an emergency shelter for a minimum period of time to be converted to any combination of income restricted housing units (UG2 affordable units) or nonprofit institutions with sleeping accommodations (UG3, may be either dwelling units or rooming units), subject to applicable district use regulations but regardless of compliance with floor area or bulk regulations. Converted shelters would still need to comply with other applicable codes and housing standards.
- The proposed actions should include the elimination of rooftop recreation requirements for Article I, Chapter 5 conversions i.e., eliminating the requirements of 15-12 for new buildings, or allowing recreation rooms (such as those allowed under the Quality Housing program) to substitute for this requirement.
- Relatedly, existing buildings with rooftop recreation space already provided under 15-12 should be allowed to encroach on this space for the purposes of Local Law 97 compliance or otherwise greening building systems. This requirement would otherwise prevent existing buildings from adding rooftop solar, efficient HVAC equipment, or other important features. Encroachment on, say, up to 33% of the space should be allowed as-of-right, with additional encroachment allowed with review demonstrating its necessity (this would require revisions to 15-30).
Proposal 1.4b: Expand Geographic Applicability of the Adaptive Reuse Regulations Citywide
- Consideration should be given to ensuring that laundry facilities in conversions. Many portions of the CBD lack laundromats Google Maps suggests there are none south of Chambers Street in Manhattan or in central Midtown. While washer/dryers will often be provided in costlier units, residents of affordable units (which would require the establishment of a tax incentive or use of subsidies) may not otherwise have access to these. Note that this issue could be addressed through a tax incentive program for mixed-income conversions, not necessarily through the zoning.
- Not specifically addressed in the DSOW are measures to ensure that residential conversions under the expanded geography subject to Article I, Chapter 5 do not undermine other important planning and public policy objectives. For instance, the residential conversion of large, anchor office buildings in Long Island City and Downtown Brooklyn would undermine broader objectives for transit-oriented growth, because the existence of high-density employment centers at these locations makes possible more housing further out in the boroughs. This could be addressed by limiting eligibility outside Manhattan to pre-1991 buildings containing less than 500,000 square feet of floor area. This would exclude only a limited number of buildings that play a significant role in achieving a critical mass of economic activity, while retaining ample opportunity for housing conversion.
Proposal 1.4c: Enable Conversions to a Wider Variety of Housing Types
- The environmental analysis should reflect the changes necessary in the Housing Maintenance Code and other regulations to enable creation of a wider range of housing types. Analysis will require additional clarity as to whether and under what circumstances these changes will allow existing non-rent-regulated buildings or SROs to be converted to new shared housing types.
Proposal 1.4d: Eliminate Outdated Restrictions on Conversions in C6-1G, C6-2G, C6-2M and C6-4M Districts
- There are other districts that restrict conversions particularly the Special Hudson Square District and M1-6D district (the latter of which may be addressed in the upcoming Midtown South Mixed Use Plan). The proposal should also consider whether it is warranted to bring these districts into parity with the conversion regulations in other districts, or whether they warrant more restrictive provisions.
Proposal 2: Low-Density Proposals
- Figure 7, “Existing Low-Density Districts,” does not accurately represent the locations of single-family, two-family, or low-density multifamily zoning districts.
- The Outer Transit-Oriented Development Area should be simplified and potentially combined with the Inner TOD Area. The changes applicable to each are highly similar. Subway and commuter rail station areas that appear to have been omitted from these geographies should be added.
Proposal 2.1a: Provide Additional FAR and Adjust Floor Area Rules
- The proposal needs to account for current R4 and R5 infill regulations to avoid unintended or unnecessary downzoning effects. The maximum FARs listed for lower-density districts in Table 7 are simplified and omit the regulations for predominantly built-up areas in R4 and R5 districts. These are 1.35 and 1.65 FAR, respectively. The proposed R4 and R5 FARs for ordinary residential sites that are not qualifying 1.0 and 1.5 are lower, and should not be applied to areas subject to the infill regulations today.
- The definition of “predominantly built-up areas” eligible for the R4 and R5 infill regulations is notoriously complicated and difficult for DOB to administer, and for property owners to navigate. Nonetheless, it would be counter to the purpose of this proposal to reduce the generally permitted FARs in predominantly built-up areas. And having four different categories of FARs in these districts would be overly complex and difficult for DOB and applicants.
- An alternative approach should be considered that would merge “predominantly built up areas” with “qualifying sites,” so that (a) they have the same FAR regulations, and (b) existing R4 and R5 infill-eligible sites would not be downzoned.
- It is important to keep in mind that R4 and R5 infill, established in 1973, were dramatically limited in 1987, eliminating eligibility for existing semi-detached 1- and 2-family houses on social blocks where 75 percent or more of buildings are of a similar type and reducing permitted development. The stated purpose of the 1989 change was to “preserve the low density character” of these block fronts. The purpose of this text amendment is different: to enable the incremental addition of housing throughout these areas.
- The proposal for Transit-Oriented Development in lower-density districts should consider additional FAR for larger sites (10,000 sf or larger), consistent with the diversity of housing types that already exist in many lower-density districts.
Proposal 2.1c: Adjust Yard, Open Space, and Court Requirements
- The proposal will also need to address what happens when a building that shares a driveway with a neighboring building is rebuilt, and whether it is eligible for the new, reduced side yard dimensions in such an instance. This may require the consent of the adjacent property owner. Note that shared driveways today may lack formal recordation of easements for access to parking spaces.
Proposal 2.1d: Increase Flexibility to Provide Off-Street Parking Where Required or Voluntarily Provided
- It is important to learn from past experience with floor area exemptions, minimizing challenges related to enforcement (particularly in small homes) and keeping zoning simple wherever possible. As is evident by the widespread use of garages in small homes for purposes other than storing cars, there is no plausible way to enforce that space in these types of buildings that has been built for parking is used for parking. Therefore, the proposal should not expand floor area deductions for parking, but eliminate them in tandem with an equivalent increase in permitted FAR. This will serve the proposals objective of allowing homeowners to determine whether they want to use space for parking or other purposes.
- Existing zoning provides floor area deductions for parking provided in detached garages. These provisions were established because it moved cars further from the sidewalk and the front of the building. However, providing a driveway through the side lot ribbon to a garage in the rear yard increases impermeable surfaces on the lot.
- Past experience has been that space provided as garage, or as a rec room adjacent to the garage, when such spaces were permitted to be deducted from floor area in R3 and R4 districts, has frequently been converted to apartments or living space. Enforcing against such violations in multifamily housing is difficult, but not impossible; in small homes, however, it is virtually impossible. Avoiding the need for such enforcement would preserve DOB capacity for other important inspection and enforcement purposes.
- More apartments and living space are, of course, the purpose of the proposal! But providing a floor area deduction for optional parking creates a new incentive for sham compliance. The purpose of the proposal should be to give owners the choice whether to use space for parking or for living space. The floor area deduction allows larger homes if a garage is provided, but puts the City in the untenable position of enforcing against owners who dont park cars in these. This would effectively favor those who break the rules over those who follow them.
- Existing zoning exempts 100, 200, 300, or 500 square feet of garage from floor area calculations, under various provisions. The proposal should eliminate these exemptions, and allow all buildings 0.1 FAR of additional floor area (above the FAR that has been proposed) regardless of whether this is used for living space or a garage. On a typical 30’x100′ lot, this amounts to 300 sf. This would be in addition to the floor area increases proposed. It would essentially be equivalent to the proposal, but would be superior in its flexibility, ease of compliance and administration.
- The proposal would “ease restrictions on curb cuts for required parking on narrow lots.” But under the proposal, parking would not be required for new developments (or presumably for conversions or enlargements), only for existing housing. It is unclear why curb cut regulations need to be relaxed for existing housing.
Proposal 2.2a: Low-Density Commercial Districts
- The proposal for preferential FAR for commercial use could create a potential long-term viability and enforcement issue, in which vacant spaces where nonresidential use proves unviable could not be occupied. While the language in the DSOW refers specifically to a higher commercial FAR, this would need to apply to both residential and community facility FARs to avoid perverse effects or unnecessary restrictions on change of use.
Proposal 2.3b: Provide Relief from Various Zoning Regulations that Apply to Dwelling Units
- The proposal should provide greater latitude for legalization of existing, basement or cellar units than for new ADUs. The legalization of existing units should be achieved by relaxing regulations except as necessary to ensure health and safety. New ADUs may be subjected to somewhat more stringent standards, though these standards should still enable the addition of a unit at low cost.
- Cellar as well as basement units should be allowed where they meet other applicable requirements for health, safety, light and air. The elevation of the unit with respect to curb level or base plane is not a sound basis for distinguishing the suitability of the unit for habitation. Standards for egress, light and air, and other key considerations should be the basis for this determination.
- Limitations on basement or cellar ADUs in areas prone to flooding should be considered for all new dwelling units, whether or not they are considered ADUs. The geographies defined should take into consideration areas subject to stormwater flooding as well as coastal flooding.
- The proposed ADU provisions are designed to allow a two-story ADU in a rear yard. Several factors, including the limited space available in most rear yards, the proximity of neighboring lots and buildings, and the amount of space required for vertical circulation suggest that one story would generally be sufficient for most detached ADUs. Regardless of the heights allowed, the permitted height for fences in a rear yard should be increased to allow screening up to the height of ADU windows. Note also that detached ADUs may leave little potential for planted or pervious surfaces in rear yards, making stormwater management best practices more important.
Proposal 3: Parking Proposals
- The proposal should identify the limited circumstances in which the absence of on-street parking and other transportation options may warrant specific attention. For instance, in low-density areas served only by narrow private roads, other measures may be necessary to prevent parking that blocks emergency access.
Proposal 3.1: Parking geographies and eliminating requirements for new housing
- On p. 45, the DSOW cites that the proposal would eliminate parking requirements for “new residential development.” This should include not only developments, as such term is defined, but also conversions and enlargements.
- For small homes, the proposal would require existing parking to be retained for existing buildings, but a new building would not require parking. If an existing home were torn down and rebuilt with parking, parking would be optional. This would create administrative headaches and a perverse incentive for teardowns over alterations.
- It’s understandable to limit removal of parking from existing multifamily housing, because the interests of the building owner who decides whether to remove spaces may diverge from those of the residents who are using these spaces today. But as is evident from observation of small homes, these owners frequently use their parking spaces for other purposes. Its perverse to tell them that if they want to remove a designated parking space, they can only do so if they knock their home down and rebuild it. Removal of existing parking spaces for 1- and 2-family homes should be allowed, provided that there is no reduction of access to remaining driveways or parking spaces that are shared with a neighboring property (at least without consent of the adjoining owner). Parking spaces removed after the effective date of this zoning text amendment should also be able to be added back. These changes would empower homeowners to reconfigure their homes the way they want to.
- The elimination of parking requirements appears to undo several harmful changes from the 2010 Residential Streetscape Preservation Text Amendment. The provisions of 25-21, 25-211, and 36-31, among other sections, should be amended to remove ambiguity and ensure that this is the case:
- Conversion (adding a unit) should not trigger a requirement for an additional parking space in R3 and R4 districts; and
- The prohibition on the removal of parking spaces constructed prior to 1961, which had not been prohibited before 2010, should be lifted. This restriction makes it unnecessarily difficult to build commercial, community space, or additional housing on NYCHA campuses, which are subject to additional review procedures under HUD regulations and should not require land use review. Today, parking is not required for existing pre-1961 developments where it would not be required today (e.g., for 100% affordable housing within the Transit Zone). In contrast, the proposal would retain parking requirements for pre-1961 buildings in areas where parking requirements for new buildings would be eliminated.
- The DSOW describes the creation of a discretionary action for removing existing parking. This discretionary action should not be required for (a) sites for which parking can be removed today, or (b) sites for which parking could have been removed prior to the 2010 text amendment. For other categories of buildings, replacement of existing parking facilities may still provide an important opportunity for new housing. To the extent that removal of existing parking requires a discretionary action, the action should be one that adds as little cost and delay as possible.
Proposal 4.1: Create New Zoning Districts to Fill in FAR Gaps
- Details are awaited about the new districts and regulations associated with them.
Proposal 4.2c: Simplify Dormer Provisions
- The dormer at 40% is a fine idea, but it would be helpful to permit the first floor of dormer at 50% to allow for transitions. This would also avoid a reduction in flexibility as compared to current regulations in most districts.
Proposal 4.3c: Provide Noncompliance Allowances for Beneficial Alterations
- It is important that zoning not unduly restrict the ability to adapt existing buildings to the evolving needs of residents. 78 percent of lower-density homes were built before the 1961 Zoning Resolution went into effect, and 90 percent were built before the 1989 lower density contextual zoning regulations were established. As a rule, these older homes have one or more noncompliances with current regulations. “Beneficial alterations” should be construed broadly, to include ordinary alterations that help building owners and residents improve the ability of homes to meet their needs without infringing on the quality of the environment for neighbors.
Proposal 4.5: Increase Flexibility for Zoning Lots Split by a District Boundary
- If using the contextual Quality Housing envelope, the 20 percent rule seems unnecessarily complex and restrictive allow floor area to be located anywhere on the zoning lot as long as buildings on each part of the lot comply with the envelope of the district in which theyre located.
4.7: Eliminate Limits on Side-by-Side Residences in Two-Family Districts
- While the administration of this authorization has always been problematic, removing it would effectively allow semi-detached houses in districts that allow only detached houses (e.g., R3A, R4A). Its not clear how this change would interact with changes to density controls, minimum lot widths, and other provisions would interact with this change. The other proposed reforms may be sufficient to allow a variety of unit types in these districts without including this change.
Proposal 4.13: streamlining 73-622 enlargements
- With the relief provided on FAR, yards, etc. in lower density districts elsewhere in the proposal, can this special permit be eliminated?
- The prototypical sites selected for analysis do not appear to include a small home legalizing a basement apartment (ADUs, Category 5). The Department should consider whether a prototypical site analysis is necessary. The environmental review must analyze the legalization of existing basement and cellar units through a legalization program to be launched by the City.
NOT SPECIFIED IN DRAFT SCOPE
- The environmental analysis should encompass the changes necessary to the New York City Construction Codes and other codes that today restrict the legalization of basement and cellar apartments, and the establishment of an administrative process to legalize units, so that the launch of a legalization program does not require an additional, subsequent environmental review. Such changes should establish a standard for safe, lawful occupancy of such units but reduce or eliminate restrictions that add unnecessary cost and complexity to the process of legalizing such a unit. These standards should also include stormwater management best practices. In addition, the City should analyze the establishment of a legalization program that would authorize as appropriate amnesty from violations, create a registry of units with interim legal status, and enable the issuance of permits for these units to be brought up to new code requirements.
- Accessory residential parking spaces in R1 and R2 districts are not permitted to be rented out to neighbors or other users (though this is done in practice). Flexible use of these parking spaces should be legalized by deleting 25-411 and making 25-412 applicable to all residence districts.
- The increases in permitted lot coverage in low-density residential districts have the potential to increase stormwater runoff, including in sensitive sewer sheds and in neighborhoods where heavy rainfall causes basement flooding and sewer backups. The proposed text amendments should be complemented by changes in DEP regulations, permit processes, and programs that promote stormwater best management practices and cloudburst management.