Special Permit Now Required for Hotels in M1 Districts; Office Restrictions Lifted in Garment Center

Kramer Levin Naftalis & Frankel LLP

[co-author: Sam Brill]*

On Dec. 20, 2018, the City Council adopted a zoning text amendment to require a special permit for the development of a transient hotel (Use Group 5) in M1 districts. The text amendment was supported by the New York Hotel Trades Council and opposed by the Real Estate Board of New York.

The text amendment is the latest action taken by the city to restrict new or converted hotels. In 2015, the city imposed a two-year moratorium on the conversion to new uses of hotels in Manhattan. The moratorium restricts hotels with 150 units or more from converting more than 20 percent of the floor area to a non-hotel use. The moratorium was subsequently extended for another two-year period, with a scheduled expiration on June 2, 2019. More recently, many of the city’s neighborhood rezonings, including the rezonings of East Midtown, East Harlem and Inwood, have included restrictions on the development, enlargement and conversion of hotels.

The newly adopted text amendment would require, in most M1 districts,[1] a special permit for the development of a transient hotel, a change of use or conversion to a transient hotel, or an enlargement containing a transient hotel of a building that did not contain hotel use on Dec. 20, 2018. The special permit is also required for an enlargement or extension of a transient hotel that existed on Dec. 20, 2018, and that increases the floor area of the hotel by 20 percent or more.

The findings required for the grant of the permit are that (1) the site plan incorporates elements that address any potential conflicts between the hotel use and adjacent uses, (2) the site design does not impair the character of the existing streetscape, (3) the hotel use does not cause undue vehicular or pedestrian congestion and (4) the hotel use does not impair the essential character of the surrounding area. City Planning Commission and City Council proceedings regarding these applications may be marked by vigorous debate among the various stakeholders, including the applicant, prospective hotel sites’ neighbors, hotel employee representatives, and real estate and hotel industry groups.

A hotel on which construction was begun prior to the effective date of the amendment can be completed if work is sufficiently advanced to "vest" the right to complete construction under either the generally applicable "vesting" provisions of the Zoning Resolution or common law. In addition, a special permit is not required if, on or before April 23, 2018, a building permit for a development, enlargement or conversion to a transient hotel, or a partial permit for a development of a transient hotel, was lawfully issued by the Department of Buildings. The building permit will automatically lapse and the right to continue construction will terminate if construction has not been completed and a temporary certificate of occupancy has not been issued by Dec. 20, 2021.

Office Restrictions Lifted in Special Garment Center District

The City Council also, on Dec. 20, 2018, adopted a zoning text amendment modifying the use regulations applicable to the Special Garment Center District.

The previous Garment Center regulations provided for two “preservation areas” within the larger district, Areas P1 and P2. Within Area P1, the underlying zoning district was M1-6, but only manufacturing, retail and showroom uses were allowed as-of-right – i.e., without City Planning Commission Chair certification. Conversion of existing spaces to office use was allowed only by a Chair certification finding that an equivalent manufacturing space had been preserved in perpetuity. Conversion to residential or hotel uses was not permitted, though hotel uses were permitted as-of-right in new developments. Within Area P2, the underlying zoning district was C6-4M, but conversion to commercial, residential and hotel uses of existing buildings greater than 70,000 square feet required a Chair certification of manufacturing preservation, or an authorization finding that the space had been vacant for three or more years.

The text amendment loosens restrictions regarding preservation of manufacturing uses for conversions to office use. First, Area P2, located on mid-blocks between Eighth and Ninth Avenues and West 35th-39th Streets, is renamed Subdistrict A-2; Area P1 is eliminated, and the rest of the Special District is renamed Subdistrict A-1. Within Subdistrict A-1, except for a prohibition on manufacturing uses within Use Group 18, use regulations are governed entirely by the M1-6 zoning district, with no preservation requirements for conversion to office use. Similarly, within Subdistrict A-2, conversions for buildings larger than 70,000 square feet no longer require Chair certification of manufacturing preservation; however, conversions are now prohibited for buildings of that size to residential or dormitory use. The existing requirement remains within Subdistrict A-2 that an office developed or enlarged after Jan. 19, 2005, receive a Chair certification under the Hudson Yards regulations that the total amount of office floor area developed or enlarged in Hudson Yards and surrounding areas after such date does not exceed 20,000,000 square feet.

Thus, other than the requirement that that Chair certification be obtained, office use is now fully as-of-right in the Special Garment Center District.

In addition, throughout the entire Garment Center, transient hotel use (Use Group 5) now requires a special permit. The special permit requires that CPC make several findings, including that the location and site plan will not impair the harmonious mix of uses within the Garment Center, and that the transient hotel will not cause undue vehicular or pedestrian congestion. Temporary transient facilities for homeless families and related social services facilities are allowed as-of-right.


 

[1] A special permit is not required for the development, enlargement, extension or change of use of transient hotels located in the following areas: 

  • JFK and LaGuardia airports, including property under the jurisdiction of the Port Authority for airport use
  • A Special Mixed Use District or where any M1 District is paired with a Residence District
  • M1 Districts where another special permit permitting a transient hotel is applicable, subject to approval by the CPC, including, but not limited to, a special permit for a transient hotel applicable within a Special Purpose District or in a Historic District designated by the Landmarks Preservation Commission

A special permit is also not required for a transient hotel operated exclusively for the public purpose of temporary housing assistance by the city or state of New York, or operated by a nongovernmental entity pursuant to an active contract or other written agreement.

 

*Law Clerk

[View source.]

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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