USA Law and Practice Contributed by: Richard L. Rosen, Leonard S. Salis and Dennison Marzocco, Rosen Karol Salis PLLC
New York real estate. If passed, the bill would require a secured party to pay the applicable tax prior to hav - ing the right to enforce its security interest. The bill has consistently failed to advance out of committee due to significant industry opposition, and remains pending as of the date of this publication.
development projects. Agreements may provide that a developer will make improvements to public transit infrastructure, create privately owned public spaces or construct public-housing units in exchange for the right to “overbuild” the property. If a development complies with zoning codes, it can proceed “as-of- right”; if not, a developer may apply for variances, special permits or seek modifications to the zoning code in order to proceed, which typically involves a public hearing. One method utilised by developers to build larger pro - jects than the zoning allows is to acquire “air rights” from other properties to increase the allowable build - ing size of their project. Air rights typically exist when the available buildable square footage of a “lot” is not fully utilised by what has been built, with the unde- veloped square footage constituting the so-called air rights. These air rights are frequently sold or trans - ferred to the developer. Permits or certificates, includ - ing a Certificate of Occupancy (COO), are required to use and occupy a building (see 7.7 Requirements Before Use or Inhabitation ). Inspection(s) by the local building department and the resolution of any open issues are required before their issuance. Property owners that open their buildings to the public without obtaining the necessary permits or certificates may be subject to fines and penalties as well as other actions, although they sometimes do so for timing or other economic reasons or exigencies. Third parties such as neighbouring property own - ers or community groups can object to real estate developments, often by challenging zoning, land use or environmental compliance. Objections are com - monly raised during public hearings, by suing to stop approvals, or by proving “particularised harm”. Com - mon grounds include violation of zoning laws, noise, traffic and environmental issues. Decisions made by local land-use boards and legislative bodies regard - ing zoning and land use are generally appealable by commencing a judicial action within the appropriate locality. However, jurisdictions typically establish high standards of review on appeal, such as whether a determination was made in an arbitrary or capricious manner or whether it was “fairly debatable” and sup - ported by substantial evidence.
4. Planning and Zoning 4.1 Planning and Zoning Framework
Local governments typically enact zoning codes to regulate the use and bulk of individual parcels of real estate as well as building construction. For example, “Bulk Provisions” set height, setback requirements and lot coverage limitations for buildings on individual parcels of land. Many states and local governments use model building codes from the International Code Council to establish minimum construction-related standards and procedures. Local jurisdictions may adopt regulations that are stricter than model building codes to protect against known environmental haz - ards, such as earthquakes or hurricanes, or to meet stricter energy efficiency goals. Local governments frequently also designate landmarks and historic dis - tricts to regulate building design and appearance. Some localities have formal processes in which the public’s input is included in the decision-making pro - cess with respect to proposed zoning changes, dis - position of government-owned real estate, and site selection for capital projects (sanitation garages, fire houses, libraries, etc). Localities sometimes enact development plans to achieve specific purposes, such as enhancing public access to parkland or limiting the proximity of certain types of businesses (such as bars) to schools or religious institutions. Additionally, juris - dictions typically have independent review boards or appeals boards that have authority to grant a property owner a variance or special permit to either develop or use a parcel of land in a manner that does not conform to local land-use regulations 4.2 Development Process, Challenges and Enforcement It is common practice for developers to enter into agreements with local governmental authorities or agencies to facilitate the approval of their proposed
711 CHAMBERS.COM
Powered by FlippingBook