A “zoning lot” is defined in Section 12-10(d) of the Zoning Resolution (“ZR”) of the City of New York, in relevant part, as “a tract of land, either unsubdivided or consisting of two or more lots of record contiguous for a minimum of ten linear feet, located within a single block, which…is declared to be a tract of land to be treated as one zoning lot for purposes of this Resolution”. (Emphasis added) On formation of an expanded zoning lot, combining what had been separate zoning lots, development rights can be transferred within the new zoning lot for development. The definition in ZR Section 12-10 also states that “[a] zoning lot…may or may not coincide with a lot as shown on the official tax map of the City of New York…”.

On May 18, 1978, Irving E. Minkin, the then Acting Commissioner of the Department of Buildings (“DOB”), issued a Departmental Memorandum (the “Minkin Memo”) with the subject line “Zoning Lot Certification Pursuant to Section 12-10 of the Zoning Resolution”. The Minkin Memo stated the following:

“Under this [1977] amendment [to the zoning resolution, which amended the definition of a zoning lot] an applicant for new development or enlargement who desires to permit the use of a tract of land within a single zoning lot, which may consist of one or more tax lots or parts of tax lots, as shown on the official tax maps whether in common ownership or not…is required to furnish certain information which is to be certified by a title company…before he can obtain a building permit or certificate of occupancy”. (Emphasis added)

In reliance on the Minkin Memo, and on generally accepted practice, the DOB issued a building permit for the construction of a 55-story tower on a 110,794 square foot development site within a tax block in Manhattan bounded by Amsterdam Avenue, West 66th Street, West End Avenue and West 70th Street. Development rights for the project were acquired though the creation of a combined zoning lot which included several partial tax lots. New York City’s Board of Standards and Appeals (“BSA”) issued a Resolution affirming the issuance of the permit.

Petitioners, the Committee for Environmentally Sound Development and the Municipal Arts Society, challenged the issuance of the building permit. After the BSA determination, Petitioners commenced an Article 78 proceeding seeking a judgment vacating the BSA Resolution. They claimed the building permit was invalid because the zoning lot assembled by the developer was not a proper zoning lot; in including several partial tax lots the zoning lot was not, as required by the ZR, either “unsubdivided” or “consisting of two or more lots of record”. Petitioners requested an Order directing the DOB to revoke the permit and halt construction at the development site.

The Supreme Court, New York County, annulled the BSA Resolution because it was “unreasonable and inconsistent with the plain language of the governing statute” which requires a zoning lot to be “a tract of land, either unsubdivided or consisting of two or more lots of record contiguous for a minimum of ten linear feet, located within a single block…”. The Court noted that the BSA had not taken into account the DOB’s announced position that the Minkin Memo, in allowing a zoning lot to include partial tax lots, was incorrect.

Further, although, as the Court noted, the DOB intends to issue a correction to the Minkin Memo after resolution of this litigation, to give the new interpretation prospective effect, the DOB, in its submission to BSA, “…shows that its intended revision of the ZR’s ‘zoning lot’ definition is just a correction of a long-standing, albeit untested, misinterpretation of statutory language. As it does not state a new legal principle, DOB’s corrected interpretation would be entitled to retroactive application [citations omitted], which will invalidate the Permit”.

The Court remanded the matter to the BSA, which was directed to review DOB’s approval of the building permit application “in accordance with the plain language of the [zoning resolution] and in accordance with this decision and order”. The Committee for Environmentally Sound Development v. Amsterdam Avenue Redevelopment Associates LLC, 2019 NY Slip Op 30621, decided March 14, 2019, is posed at http://www.nycourts.gov/reporter/pdfs/2019/2019_30621.pdf.