USA - NEW YORK Law and Practice Contributed by: Adam S. Walters, Erin C. Borek, Timothy P. Moriarty and Kelly E. Marks, Phillips Lytle LLP
mental Quality Review Act is often included in this process. Third parties or members of the public may appear at public hearings regarding the proposal, and the municipality may consider the opinions of the public in connection with its determination. Requests for variances require application to the municipal zoning board of appeals. Rezonings generally require an application to a municipal board for a zoning amendment, which is often referred to the municipal planning board for its review and recommendation. 4.5 Right of Appeal Against an Authority’s Decision Often, a municipality will have a specific section in its municipal code for appealing a relevant authority’s decision. An appeal will begin with an adverse determination by a code enforcement officer and is normally heard by the zoning board of appeals. Once all municipal avenues have been exhausted, an aggrieved party is provided the right to appeal further in the State Supreme Court. 4.6 Agreements With Local or Governmental Authorities Agreements with local governments, authorities, or utility suppliers are not generally necessary to obtain permits or approvals for development projects; however, they can be required in some instances, commonly in cases of incentive zon - ing agreements and reimbursement agreements. Incentive zoning offers rights to a developer in exchange for public benefits to the community. Rezoning of property is negotiated between the developer and municipality. Some municipal zoning codes contain provi - sions for Planned Unit Development that allow municipalities to provide flexibility with respect
to underlying code requirements for certain innovative and unique projects. In addition, reimbursement agreements allow a municipal - ity to hire certain professionals/consultants, and require the applicant to cover all fees associated with the same. However, such fees may only be lawfully imposed if they are reasonable, neces - sary, and not simply for the convenience of the local board. 4.7 Enforcement of Restrictions on Development and Designated Use Restrictions on development and designated uses are typically enforced through certain bulk provisions in the zoning code regulat - ing height, density, lot coverage, minimum/ maximum parking requirements, setbacks, and similar considerations. Restrictions may also be enforced through conditions to zoning approv - als. Proposed development is evaluated by the municipality’s planning/zoning department, and existing development is monitored through the municipality’s code enforcement officer/build - ing department. Violations can be generated through citizen complaints or permitting and routine inspections, and fines can be assessed. 5. Investment Vehicles 5.1 Types of Entities Available to Investors to Hold Real Estate Assets There are several types of entities available to investors to acquire and hold real estate, includ - ing, but not limited to, limited liability companies, corporations, and partnerships. Limited liability companies are the most commonly used entity type to acquire real estate because they are typically characterised by flexible organisational governance, they offer limited liability protection to all members, and members can define their contractual obligation in the company’s operat -
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