In 1916, the City adopted the first comprehensive Zoning Resolution in the nation. The New York City Zoning Resolution has evolved since that time to meet the constantly changing needs of the City. To meet the newest challenges, PlaNYC called for the use of zoning to concentrate development around transit hubs, encourage more “affordable housing” and increase green space through tree planting and landscaping requirements.

There is no doubt that these are appropriate matters for zoning. Yet, zoning can do so much more. As a comprehensive system that regulates the built environment through controls on use, bulk and parking, zoning can be utilized to an even greater extent than envisioned by the Mayor to further long term sustainable growth in urban areas. A summer meeting among land use attorneys, architects and environmental professionals has given rise to a variety of new strategies for utilizing the Zoning Resolution to meet the City’s current and future needs. Their ideas are outlined below.

While PlaNYC advocates reductions in energy use and the use of renewable energy, there are aspects of the current Zoning Resolution that inhibit sustainable building designs. For example, wind turbines are not permitted to exceed building height limits. Fixed height and setback and street wall regulations may be at odds with the optimum siting of a building and the orientation of windows and solar panels. A third obstacle arises from the Resolution’s definition of “Floor Area” and this is why: Thicker walls, which could bear solar panels or contain additional insulation, increase the “Floor Area” of a building, as defined in and limited by the Zoning Resolution, and thereby reduce the amount of marketable area.

Troubling and outdated barriers to more energy efficient buildings could be addressed through amendments to the Zoning Resolution. For example, appropriately designed wind turbines could be classified as permitted obstructions so as to exceed height limits. The definition of “floor area” could be amended to exclude additional wall widths provided for energy efficiency. Waivers of height and setback regulations could be provided as needed to support energy saving or energy generating infrastructure. The manufacturing district performance standards of the Zoning Resolution, largely unchanged since 1961, could be amended to incorporate standards for energy use and carbon emissions. The conversion of manufacturing buildings to mixed-use could encourage a mix of uses having complementary energy needs.

In addition to energy, other goals of PlaNYC, such as storm water management and reduction in the urban heat island effect, could be addressed by amendments to the Zoning Resolution. The use of permeable materials, such as pervious concrete and soils with plantings, could be mandated in a variety of open spaces. Green roofs could be encouraged in appropriate situations. With respect to mass transit, the Zoning Resolution could require that developments located more than a certain distance away from subway lines provide bus or shuttle services to transit connections.

As greener mandates in the green and energy codes are on the way, many are concerned that new mandatory zoning standards will impose too great a financial burden on developers. This concern could be met by establishing a “Sustainable Building Program,” similar to the existing Quality Housing Program. As in Quality Housing, buildings meeting certain standards, such as LEED Platinum or a select list of New York City-specific high performance priorities, could exclude certain areas from the Zoning Resolution’s definition of “Floor Area,” effectively providing a bonus for sustainable design. Because the program would be voluntary, the developer would be able to make an informed decision based on a cost/benefit analysis. In Quality Housing, which exempts certain building areas (corridors, trash rooms, recreation spaces, etc.) from floor area if they provide an amenity to the occupants, most if not all developers elect to comply with the program requirements. Similarly, a voluntary Sustainable Building Program could create the momentum and practical experience that would lead the way to smart, effective and efficient development.

In addition, where discretionary land use approvals such as special permits are sought, new findings could be added pertaining to sustainability. For example, a finding “that the project meets targets for sustainability” could be added to the other statutory findings.

Beyond simply amending the Zoning Resolution, the land use planning process itself, ought to be re-imagined in a creative effort by a multi-disciplinary group of experts and stakeholders, in conjunction with the City’s land use, environmental, transportation (including the MTA) and infrastructure planners and policy makers. Through this process the Administration and its Sustainability office and city planners t could take into consideration new factors, such as whether an area is flood prone or the location of existing urban “hot” spots based on aerial thermal maps. By working with experts, industry, environmental and community groups, City Hall could reach for a new calculus that addresses the need for energy efficiency at a city-wide and neighborhood level, or determines the location, size and use of buildings based, at least in part, on a standard of acceptable levels of green house gas emissions. Exploring these possibilities would surely advance the on-going agenda of how to make our city more sustainable and may lead to new paradigms in zoning.

What has been suggested here represents only a few of the potential ways in which the Zoning Resolution could be amended and re-envisioned to meet the needs of the 21st Century. In 1916, the Zoning Resolution was seen primarily as a means of separating incompatible uses and regulating the height of buildings. In 1961, the Zoning Resolution was rethought as a means of further regulating the size and shape of buildings through the imposition floor area ratio and other bulk controls; it also addressed our parking needs. Now, in 2008, the Zoning Resolution can once again be rethought as a way of meeting the City’s present and future challenges in the areas of growth, infrastructure and environment. This process may be procedurally cumbersome. It may require a delicate balancing of conflicting interests to gain broad based support and generate the necessary political will. But the result – a greener, more sustainable future for all New Yorkers – will appeal to all New Yorkers for many generations.

Caroline G. Harris, Esq. is a land use attorney in New York City, currently practicing with Troutman Sanders LLP. She can be contacted at cgharris.law@gmail.com

The contents do not represent the views or opinions of Troutman Sanders LLP or of The Association of the Bar of the City of New York.