Why a Zoning Change Does Not Always Stop a Project Underway

By Michael Stern, JDS Development Group

A foundation is completed on a Thursday and the zoning that governs the site changes the following week. The building that foundation was designed for is still legal. The building the new text describes is a different one, and nobody is building it on this lot.

This is for developers, land use lawyers and construction managers working on sites where the rules move while the schedule runs. The mechanism that decides the outcome is a recognition, written into zoning itself, of work that has already substantially begun. What it protects is progress in the ground, and what it turns on is a very small number of dates.

What Zoning Protects When Construction Has Already Begun

A zoning amendment does not reach backward through every project on every lot. Text and maps change constantly, which is ordinary work in the planning profession and a standing condition for anyone developing on a long timeline. A project that has reached a defined stage of construction under the prior rules can usually continue under them and finish the building it was permitted to build.

The stage is defined by physical progress rather than by intention, and on a building of any size the measure is the foundation. That choice is deliberate. Work in the ground is observable, it is inspected, and a change on paper cannot undo it.

A drawing set or a filing can describe a building that never happens, and the rules have no way to tell the difference until concrete is in the ground. The protection is also not open ended. It normally carries a period within which the work has to continue and the building has to be finished, and both the test and the period are set by the text of the Zoning Resolution itself and by the agency administering it.

Continuing under the prior rules is a practical thing rather than an abstract one. The approval issued under the old text stays good, and the building may be completed as it was approved, drawing for drawing. If the work lapses for long enough, the project returns to whatever is in force on the day it starts again.

Land use counsel reads the current language for the specific lot, and that reading is the only version worth planning around. Everything below is the shape of the mechanism rather than the rule for any particular site.

Why the Foundation Date Is the Date the Schedule Is Built Around

On an ordinary site, reaching a completed foundation is a matter of weeks. On the sites I take on it is the end of a long sequence, because before any concrete goes in there is demolition, there is excavation, and there is the support of excavation along every structure standing at the edge of the lot.

111 West 57th Street stands in the courtyard of the landmarked Steinway Hall, and a site of that kind leaves very little room for the work that comes before a foundation. Getting into the ground on a constrained lot is a project of its own, with its own sequence and its own dependencies. None of it is visible in a rendering and all of it sits ahead of the date that matters.

Each step in that sequence carries its own sign offs, so the chain is administrative as well as physical. A dig proceeds when the step before it has been inspected and accepted, and not a day earlier. Compressing the front of a schedule is therefore far harder than compressing the middle of one.

So a team that can see an amendment coming does not plan from the amendment backward to the design. It plans from the amendment backward to the excavation, and from the excavation backward to the filings, which is a longer chain than most schedules are drawn to show.

On a site where the rules are moving, the construction schedule is a legal document as much as it is a logistics plan.

How a Development Team Plans a Construction Start Around a Rezoning

The first move is the zoning analysis, which turns the current text into quantities for one lot. It fixes what the project may be today, including how much floor area the site can actually gather from around it, which is a question of which lots touch which. That same analysis is the baseline against which a proposed amendment gets read, because the map of what a site can hold is also the map of what it stands to lose.

The second move is to inventory everything standing between today and a completed foundation. On a constrained lot that list runs longer than the design work remaining, and it is made of demolition, excavation, support of excavation and inspection, each one waiting on the one before it. A schedule that starts at the foundation and works forward has already skipped the hard part.

The third move is to decide what gets frozen. Reaching a construction start early means locking the foundation, which means locking the column grid, the core position and the levels below grade. Every one of those decisions constrains the building above it for the rest of its life.

What I try to avoid is freezing the parts of the building that are still arguable. A foundation can be designed to carry more than one version of the tower above it, at a cost, and deciding how much of that flexibility to buy is the real decision in front of a rezoning. It is a question about the design, asked for a reason that has nothing to do with design.

Where Planning Around a Zoning Change Can Go Wrong

Here is where a competent peer can reasonably think I have this wrong. I would rather build the smaller building I am sure of than lock a foundation early to hold a larger one, because a foundation poured to protect an envelope is a foundation poured before the building above it is resolved.

The cost of that arrives later and it is real. Decisions made to hit a date get reopened when the design catches up, and the changes land in the most expensive place to change anything, which is the part of the building already standing.

The honest limit is that the judgment gets made without knowing what the final text will say. An amendment in progress is not an amendment adopted, and the version that takes effect can be better for a site than the version that was proposed. Those proposals are published by the city planning agency as they move, which is the one real advantage a development team has here.

A team that assumes the worst and builds to beat it can spend an entire sequence protecting something it never needed to protect. I have watched that happen and I have no clean rule for telling the two cases apart in advance.

The people who answer the actual questions are land use counsel, who confirms the specific test and how long the protection runs against the current text, the architect of record and the expediter, who sequence the filings with the Department of Buildings, and the construction manager, who is the only one able to say what the ground will really deliver by a given date. My job is to decide, early, whether the date is worth designing around at all.

The rules that govern a building are the rules in force on the day the work reached the ground, and that is a date a team chooses rather than one it receives.

Michael Stern is the founder and chief executive officer of JDS Development Group.