Lawyer Monthly - September 2023

Zoning Resolution is, in fact, the City’s comprehensive plan. Given the plan’s emphasis on community engagement and partnerships, what legal frameworks might need to be established or strengthened to ensure this successful collaboration? The Uniform Land Use Review Procedure, which was adopted in 1975, provides a framework for community engagement and partnership. It requires that applications for discretionary land use approvals first How do you anticipate the proposed digitisation of the zoning and land use application process impacting the legal landscape around city? It is critical to our democracy that government be open and transparent. Digitisation, which is already in progress, will facilitate public access to land use applications. In anticipation of increased public access, applications will need to clearly explain what is being proposed, why the action is necessary, and why it is appropriate from a planning and legal perspective. State law requires that discretionary land use actions be consistent with a “comprehensive plan”. While New York City does not have a document titled ‘Comprehensive Plan’, the by the Commissioner of Buildings and the Director of the Department of City Planning. Legal challenges to final agency actions may be brought in New York State Supreme Court under Article 78 of the Civil Practice Law and Rules. In this proceeding, challengers must prove that an agency has acted arbitrarily, capriciously or illegally. This is a difficult standard for challengers to meet and most agency determinations are upheld. However, challenges may delay a project that is premised on financing schedules and future market conditions. The defence to an Article 78 challenge is to demonstrate that the contested action meets a compelling public need, meets all legal requirements, is in accordance with a comprehensive plan and results from a sound planning process. The plan also calls for modifications to Zoning Resolution and City Environmental Quality Review (CEQR). How significant are these proposed changes, and what legal issues might they raise? The City has been reluctant to change the substance of environmental review because of a provision in the State Environmental Quality Review Act (SEQRA) that prohibits changes that are “less protective of the environment”. To its credit, the City of Yes recommends that the City adopt a more robust list of ‘Type II’ actions that are not subject to environmental review because they are unlikely to result in environmental impacts in New York City. Until now, the City has refrained from significantly expanding its Type II list due to concerns over the “less protective” prohibition, even though the Type II list mandated by the state is designed to apply equally to all local governments in New York State, from the smallest to the largest and from the most rural to the most urban. 68 LAWYER MONTHLY SEPTEMBER 2023

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