NYC CPC Certifies Zoning for Coastal Flood Resiliency Proposal for Public Review

Kramer Levin Naftalis & Frankel LLP

On Oct. 19, 2020, the City Planning Commission certified for public review a proposed citywide text amendment known as Zoning for Coastal Flood Resiliency (ZCFR). The proposal seeks to update and make permanent those zoning regulations that were adopted on a temporary, emergency basis after Hurricane Sandy to facilitate flood-resilient construction within New York City’s flood hazard areas. If adopted, the text amendment would affect mostly properties located within the City’s 1% annual chance (100-year) and 0.2% annual chance (500-year) flood plains, although certain provisions would be applicable to all waterfront sites. In addition, the amendment would establish a framework of special provisions that could be applied throughout the City to facilitate recovery from future disasters, including those not involving flooding or other physical impacts. Certain of these provisions would be implemented now, with the adoption of ZCFR, to address the COVID-19 pandemic.

The Zoning Resolution’s existing flood zone regulations, set forth at Article VI, Chapter 4 (Special Regulations Applying in Flood Hazard Areas), were adopted after Hurricane Sandy to remove zoning barriers to compliance with flood-resistant construction standards applicable to new buildings and substantial repairs and alterations within the 1% annual chance flood plain. These flood-resistant construction standards, which are contained in Appendix G of the New York City Building Code, generally require habitable spaces to be raised above an applicable design flood elevation (DFE). If a building contains only residential use, all spaces below the DFE must be wet-floodproofed — that is, designed to intentionally flood and allow the passage of water through the structure — and may be used only for parking, storage, building access or crawl spaces. If a building contains no residential use or contains residential use but with nonresidential use on the “lowest floor,” as defined in Appendix G, then all spaces below the DFE must be dry-floodproofed — that is, designed to be watertight and resist water loads — and may be used only as nonresidential property.

The Zoning Resolution’s existing flood zone regulations include optional provisions to facilitate compliance with the requirements of Appendix G. For example, building heights may be measured from an applicable flood-resistant construction elevation (FRCE) (generally equivalent to the DFE), or in some cases a higher “reference plane,” for purposes of establishing compliance with height and setback regulations. The flood zone regulations also include provisions designed to mitigate negative effects of flood-resistant construction on the streetscape. Because the regulations were adopted as a temporary emergency measure after Sandy, certain provisions expired in July 2020, and the balance are set to expire within the next few years.

ZCFR aims to improve upon the Zoning Resolution’s flood zone regulations and make them permanent, while responding to projected increases in the potential height of storm surges and sea level rise. Materials issued by the Department of City Planning categorize the proposed regulations by reference to four core goals, as described in the addendum to this alert.

ZCFR has been referred to the City’s community boards and borough presidents for review, after which it will return to the City Planning Commission for a public hearing. Clients and contacts are encouraged to reach out to the Kramer Levin Land Use department for further information regarding this proposal.

Addendum – Summary of ZCFR Provisions

Goal 1. Encourage resiliency throughout the current and future flood plains.

Among the most notable proposed changes under ZCFR is that many of the optional regulations of Article VI, Chapter 4, would be made available to buildings located in the 0.2% annual chance flood plain, to allow more owners to meet the flood-resistant construction standards of Appendix G proactively (the 0.2% annual chance flood plain serving as a proxy for the projected 1% annual chance flood plain for the year 2050). In addition, these optional flood zone regulations would be made available to zoning lots that are wholly or partially within the flood plain, regardless of whether there are buildings or portions of buildings on the zoning lot that are outside the flood plain.

Goal 2. Support long-term resilient design for all building types.

ZCFR would incorporate, and in some respects modify, existing allowances for building envelopes, ground floors and other design features to facilitate compliance with the flood-resistant construction standards of Appendix G. Among other things, for buildings that are in the 0.2% annual chance flood plain and therefore not subject to Appendix G, the FRCE would be defined as two feet above the lowest adjacent grade. In addition, the rules governing the use of a “reference plane” to measure building height would be made broader in their applicability and more consistent across building types and zoning districts. For zoning lots located in the 1% annual chance flood plain, the reference plane would be defined as any elevation between the FRCE and 10 feet above the applicable curb level or base plane. For zoning lots located in the 0.2% annual chance flood plain, the reference plane would be defined as any elevation between the FRCE and five feet above the applicable curb level or base plane.

Existing provisions that allow the FRCE to be used to determine whether a floor is a “cellar,” and thereby qualifies for a floor area exemption, would be eliminated, thereby removing incentives under the existing text to build ground floors with low ceiling heights. Instead, floodproofed ground floors would be partially or wholly exempt from floor area under certain conditions, regardless of their height relative to the FRCE. Specifically, an existing floor area exemption for wet-floodproofed ground floors in existing buildings would be expanded to apply to wet-floodproofed ground floors in new buildings. Additionally, the first 30 feet of nonresidential space in a dry-floodproofed ground floor in either an existing or new building would be exempt from floor area, provided the space is along a “primary street frontage,” as defined in the Zoning Resolution, and is mapped in a commercial district or in an M1 district paired with a residence district.

Other proposed changes under ZCFR include modified rules for the reconstruction or alteration of grandfathered buildings and uses; a new Board of Standards and Appeals special permit to allow Use Group 6 commercial offices on the ground floor in residence districts; and an expanded menu of design options to comply with streetscape requirements for flood-resilient buildings.

Goal 3. Allow for adaptation over time through incremental retrofits.

Certain optional provisions under ZCFR would be available to buildings in the flood plain regardless of whether they fully comply with flood-resistant construction standards, to encourage incremental adoption of certain flood-resilient measures. These provisions include expanded allowances for mechanical equipment and other critical spaces above the DFE and for flood protection devices located in required open areas. Other regulations would facilitate the raising of important business spaces, such as offices and storage, above the flood level. For example, the supplemental use regulations applicable in C1 and C2 commercial districts, which restrict commercial uses in mixed-use buildings to the first story and below, would be modified to allow commercial uses on the second story. In commercial and manufacturing districts in which the maximum commercial or manufacturing FAR is 1.0 or less, up to 500 square feet of floor space located at or above the FRCE in a nonresidential building would be excludable from floor area.

Further, the Zoning Resolution’s special waterfront regulations would be amended to facilitate coastal flood-resilient design features within required waterfront public access areas. To facilitate bilevel esplanade designs, for example, the regulations would allow taller retaining walls and terraced planting areas and would relax certain requirements for plantings and screening buffers. To encourage the provision of soft shorelines, the regulations would allow “tidal wetland areas” to partially satisfy requirements for waterfront yards, shore public walkways and planting. In addition, certain flood protection measures such as temporary flood control devices, structural landscaped berms, and flood gates would be made permitted obstructions in waterfront yards and visual corridors.

Goal 4. Facilitate future recovery by reducing regulatory obstacles.

ZCFR would prohibit the development of new nursing homes and nursing home portions of continuing care retirement communities, as defined in the New York State Public Health Law, and limit enlargements of existing nursing homes to a maximum of 15,000 square feet, within the 1% annual chance flood plain and other designated high-risk areas. This prohibition reflects a determination by the City that restricting nursing homes in these areas mitigates the health consequences and logistical challenges of evacuating residents in response to a coastal storm event.

Independent of flood resiliency measures, ZCFR would create a framework of optional special regulations that could be applied in the event of a future disaster to facilitate recovery. Application of one or more regulations to a specific recovery effort would be achieved by a separate text amendment to the Zoning Resolution at the time of the disaster and would require a declaration of a state of emergency by the mayor or governor. The provisions that are adopted would be selected based on the issues presented by the disaster, would be limited to “designated recovery areas” that are identified at the time of the disaster, and would be allowed to remain in effect beyond the state of emergency for a specified duration.

Selected provisions of the disaster recovery framework would be implemented now, as part of the broader ZCFR text amendment, to address the COVID-19 pandemic and its impacts on the City’s economy. Specifically, the text amendment would extend the maximum period of discontinuance for nonconforming uses by an additional two years, and it would allow the maximum time frame for substantial construction pursuant to a City Planning Commission special permit or authorization to be extended without public hearing for an additional three-year term, for a total term of 13 years, by application to the commission.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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