USA - NEW YORK Law and Practice Contributed by: Adam S. Walters, Erin C. Borek, Timothy P. Moriarty and Kelly E. Marks, Phillips Lytle LLP
are generally stayed unless and until the auto - matic bankruptcy stay is lifted. Once a foreclosure sale occurs, the debtor’s rights of redemption will expire. If a borrower files bankruptcy after a foreclosure sale, the real property is generally considered to be outside the borrower’s bankruptcy estate and the title may be transferred to a winning bidder, notwith - standing the pendency of the bankruptcy and corresponding automatic stay. 3.10 Taxes on Loans On 22 January 2021, New York State Assem - bly members reintroduced legislation which would require the recording of, and payment of recording tax on, mezzanine debt and preferred equity investments related to the real property, whenever a mortgage is recorded with respect to the property. This legislation, however, was not enacted. 4. Planning and Zoning 4.1 Legislative and Governmental Controls Applicable to Strategic Planning and Zoning Governmental authority over planning and zon - ing is derived from the state’s police power to promote the health, safety, and welfare of its citizens. This authority has been delegated to local municipalities through the General City Law, Town Law, and Village Law, which author - ise municipalities to exercise control over local zoning pursuant to the police power. The Munic - ipal Home Rule Law and the Statute of Local Governments provide additional independent authority for municipalities to adopt local zon - ing laws that are not inconsistent with state law. Local zoning laws must also be in accordance with a municipality’s comprehensive plan. While
there may be regional approaches to particular land use issues, typically, each municipality has its own zoning laws and there is little consist - ency between differing municipalities. 4.2 Legislative and Governmental Controls Applicable to Design, Appearance and Method of Construction A municipality’s zoning code sets forth devel - opment criteria and regulations with respect to appearance and construction of structures. In addition, there may be supplemental/overlay design guidelines dependent on the parcel’s location within a specific neighbourhood or his - toric district. Compliance with design, appear - ance, and method of construction is normally handled through the site plan review process with the municipal planning board. This process should be consistent with the applicable zoning enabling law (General City Law, Town Law, and Village Law). 4.3 Regulatory Authorities The local municipal government is typically responsible for regulating development of indi - vidual parcels within the municipality, with input from municipal planning boards. The municipal zoning code provides a framework for decision- making in connection with the development of property, which is based upon the community’s preferences. In addition, the municipality’s land use plan bridges the municipality’s comprehen - sive plan and zoning code by recommending the appropriate type, intensity, and character of development. 4.4 Obtaining Entitlements to Develop a New Project New projects or major refurbishments typically require approvals from local municipal boards after a formal filing is made, and a public hear - ing is held. Compliance with the State Environ -
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