USA – NEW YORK Law and Practice Contributed by: Lindsey E. Haubenreich, Joseph P. Heins, Timothy P. Moriarty and Kimberly R. Nason, Phillips Lytle LLP
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 com - monly 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 operating agreement to tailor it to reflect their business agreement and financial arrangements. 5.2 Main Features and Tax Implications of the Constitution of Each Type of Entity Corporation A corporation is an association of shareholders formed under the New York Business Corpora - tion Law that is a legal entity separate and dis - tinct from its shareholders with the capacity for perpetual existence to: • acquire, hold and dispose of property; • sue or be sued; and • have such other powers as may be conferred upon it by law.
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