73-60 Modifications of Bulk Regulations

Subject to the general findings required by Section 73-03 and in accordance with the provisions contained in Sections 73-62 to 73-68 inclusive, the Board of Standards and Appeals shall have the power to permit modification of the bulk regulations of this Resolution, and shall have the power to impose appropriate conditions and safeguards thereon.

In the Special Midtown District, the powers of the Board to permit modification of the bulk regulations are made inapplicable in accordance with the provisions of Section 81-061 (Applicability of Chapter 3 of Article VII).

For a complying or non-complying building existing on December 15, 1961, or in R2X, R3, R4 or R5 Districts on June 30, 1989, and containing residential uses, the Board of Standards and Appeals may permit an enlargement, a change of use or (in the case of a mixed building) an extension, provided that such enlargement, change of use or extension shall not create any new non-compliance or increase the amount or degree of any existing non-compliance except as provided in this Section.

In the districts and for the buildings for which an open space ratio is required, the open space ratio permitted under this Section shall not be less than 90 percent of the open space ratio required under the applicable bulk regulations set forth in Article II or III of this Resolution. In the districts and for the buildings to which a maximum lot coverage applies, the maximum lot coverage permitted under this Section shall not exceed 110 percent of the maximum lot coverage permitted under the applicable bulk regulations set forth in Article II or III of this Resolution. In all districts, the floor area ratio permitted under this Section shall not exceed the floor area ratio permitted under such regulations by more than 10 percent. In R2X, R3 or R4 Districts, the additional floor area permitted pursuant to this Section may be computed using a base floor area ratio including the floor area permitted under a sloping roof with a structural headroom between five and eight feet when such space is provided in the building.

The Board of Standards and Appeals may permit an enlargement of an existing single- or two-family detached or semi-detached residence within the following areas:

(a)        Community Districts 11 and 15, in the Borough of Brooklyn;

(b)        R2 Districts within the area bounded by Avenue I, Nostrand Avenue, Kings Highway, Avenue O and Ocean Avenue, Community District 14, in the Borough of Brooklyn; and

(c)        within Community District 10 in the Borough of Brooklyn, after October 27, 2016, only the following applications, Board of Standards and Appeals Calendar numbers 2016-4218-BZ, 234-15-BZ and 2016-4163-BZ, may be granted a special permit pursuant to this Section. In addition, the provisions of Section 73-70 (LAPSE OF PERMIT) and paragraph (f) of Section 73-03 (General Findings Required for All Special Permit Uses and Modifications), shall not apply to such applications and such special permit shall automatically lapse and shall not be renewed if substantial construction, in compliance with the approved plans for which the special permit was granted, has not been completed within two years from the effective date of issuance of such special permit.

Such enlargement may create a new non-compliance, or increase the amount or degree of any existing non-compliance, with the applicable bulk regulations for lot coverage, open space, floor area, side yard, rear yard or perimeter wall height regulations, provided that:        

(1)        any enlargement within a side yard shall be limited to an enlargement within an existing non-complying side yard and such enlargement shall not result in a decrease in the existing minimum width of open area between the building that is being enlarged and the side lot line;

(2)        any enlargement that is located in a rear yard is not located within 20 feet of the rear lot line; and

(3)        any enlargement resulting in a non-complying perimeter wall height shall only be permitted in R2X, R3, R4, R4A and R4-1 Districts, and only where the enlarged building is adjacent to a single- or two-family detached or semi-detached residence with an existing non-complying perimeter wall facing the street. The increased height of the perimeter wall of the enlarged building shall be equal to or less than the height of the adjacent building's non-complying perimeter wall facing the street, measured at the lowest point before a setback or pitched roof begins. Above such height, the setback regulations of Section 23-631, paragraph (b), shall continue to apply.

The Board shall find that the enlarged building will not alter the essential character of the neighborhood or district in which the building is located, nor impair the future use or development of the surrounding area. The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

For developments or enlargements of Quality Housing buildings in which at least 50 percent of the dwelling units are income-restricted housing units, or at least 50 percent of its total floor area is a long-term care facility or philanthropic or non-profit institution with sleeping accommodation, the Board of Standards and Appeals may modify the underlying bulk regulations, other than floor area ratio, provided that in no event shall such building height or the number of stories therein exceed those set forth in paragraph (b) of Section 23-664 (Modified height and setback regulations for certain Inclusionary Housing buildings or affordable independent residences for seniors), and provided that the Board finds that:

(a)        there are physical conditions, including irregularity, narrowness or shallowness of lot size or shape, or topographical features that create practical difficulties in complying with the bulk regulations for Quality Housing buildings and would adversely affect the building configuration or site plan;

(b)        the practical difficulties of developing on the zoning lot have not been created by the owner or by a predecessor in title;

(c)        the proposed modifications will not unduly obstruct access of light and air to adjoining properties or streets;

(d)        the proposed scale and placement of the development or enlargement relates harmoniously with the surrounding area; and

(e)        the requested modification is the least amount necessary to relieve such practical difficulties.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

For a development, enlargement or conversion subject to the provisions of paragraph (d)(3), inclusive, of Section 23-154 (Inclusionary Housing), the Board of Standards and Appeals may, upon determining that a hardship that is specifically created by the requirements of such Section exists, modify the income levels specified for qualifying households, reduce the amount of affordable floor area required or reduce the amount of a payment into the affordable housing fund, provided the Board finds that:

(a)        the applicant has applied for any appropriate relief for which such development, enlargement or conversion is eligible for any financial hardship or practical difficulty not specifically created by the requirements of Section 23-154, paragraphs (d)(3)(i) through (d)(3)(v) and (d)(5);

(b)        such requirements for affordable housing or a contribution to an affordable housing fund create an unnecessary hardship, with no reasonable possibility that a development, enlargement or conversion on the zoning lot in strict compliance with the provisions of Section 23-154, paragraphs (d)(3)(i) through (d)(3)(v) and (d)(5), and Section 23-90 (INCLUSIONARY HOUSING), inclusive, will bring a reasonable return, and that a modification or reduction of these requirements is therefore necessary to enable the owner to realize a reasonable return from such zoning lot; and

(c)        the unnecessary hardship claimed as a basis for such modification or reduction has not been created by the owner or by a predecessor in title.

In determining whether a hardship exists, the Board shall consider whether alternative permitted uses, or alternative forms of housing tenure would bring a reasonable return from the zoning lot.

The Board may modify affordable housing requirements set forth in Section 23-154, paragraphs (d)(3)(i) through (d)(3)(iv) and (d)(5), to permit appropriate relief as follows.

First, the Board shall determine whether compliance with the requirements of Option 1, Option 2 or the Deep Affordability Option, as set forth in Section 23-154, paragraphs (d)(3)(i), (d)(3)(ii) and (d)(3)(iii), respectively, where not otherwise permitted, provides sufficient relief.

If the Board does not so find, the Board shall next determine whether compliance with the requirements of the Workforce Option, as set forth in Section 23-154, paragraph (d)(3)(iv), where not otherwise permitted, provides sufficient relief.

If the Board does not so find, the Board, in consultation with the Department of Housing Preservation and Development, shall determine a modification or reduction of the requirements of Section 23-154, paragraph (d)(3)(i) through (d)(3)(iv) and (d)(5), that represents the minimum necessary modification or reduction to afford relief.

In addition, the Board, in consultation with the Department of Housing Preservation and Development, may permit a modification or reduction of the requirements of Section 23-154, paragraph (d)(3)(v) that represents the minimum necessary modification or reduction to afford relief.

A copy of each application to the Board for a special permit under the provisions of this Section shall be provided by the applicant to the Department of Housing Preservation and Development concurrently with its submission to the Board.  Before the Board issues a final determination on any application made pursuant to this Section, HPD shall submit comment or appear before the Board regarding such application.

A special permit pursuant to this Section shall lapse after a term of four years, pursuant to Section 73-70 (LAPSE OF PERMIT). When considering an application for renewal of a special permit pursuant to paragraph (f) of Section 73-03 (General Findings Required for All Special Permit Uses and Modifications), the Board shall consult with HPD in determining whether the circumstances warranting the original grant of such permit still obtain, and may renew, modify, or deny the application for renewal, as appropriate.

The Board may prescribe such conditions and safeguards as it deems necessary to minimize adverse effects upon the surrounding area and the community at large.

For a complying or non-complying non-residential building existing on December 15, 1961, the Board of Standards and Appeals may permit an enlargement, provided that such enlargement shall not create any new non-compliance or increase the amount or degree of any existing non-compliance except as provided in this Section.

In all districts, the floor area ratio permitted under this Section shall not exceed the floor area ratio permitted under the applicable bulk regulations set forth in Article II, III or IV of this Resolution by more than 10 percent, or 10,000 square feet, whichever is less.

On a zoning lot occupied by any of the community facility uses specified in this Section, and in all districts where such uses are permitted as-of-right or by special permit, the Board of Standards and Appeals may permit developments or enlargements for such uses, which do not comply with certain applicable district bulk regulations, in accordance with the provisions of this Section.

Such specified community facility uses are:

College or school student dormitories or fraternity and sorority student houses

Colleges or universities, including professional schools, but excluding business colleges or trade schools

Community centers

Houses of worship, rectories, parish houses or seminaries

Libraries, museums or non-commercial art galleries

Monasteries, convents or novitiates

Non-profit hospital staff dwellings

Non-profit or voluntary hospitals and related facilities

Philanthropic or non-profit institutions with or without sleeping accommodations, excluding ambulatory diagnostic or treatment health care facilities listed in Use Group 4

Schools.