The Real Estate Board of New York to The Department of Buildings on the Calculation of Universal Affordability Preference Floor Area Ratios Bulletin

The Real Estate Board of New York to The Department of Buildings on the Calculation of Universal Affordability Preference Floor Area Ratios Bulletin

The Real Estate Board of New York (REBNY) is the City’s leading real estate trade association representing commercial, residential, and institutional property owners, builders, managers, investors, brokers, salespeople, and other organizations and individuals active in New York City real estate. REBNY appreciates the opportunity to provide comments on the proposed Department of Buildings (DOB) draft bulletin clarifying how to calculate floor area ratio for mixed-use buildings that are Universal Affordability Preference (UAP) developments.

REBNY appreciates the Department’s engagement on this issue and its efforts to provide clarity and predictability through the issuance of the Draft Bulletin. However, we write to highlight significant adverse public policy implications associated with the interpretation set forth in the Bulletin.

We recognize that the Draft Bulletin seeks to establish a protocol for calculating permitted total floor area ratio (FAR) in mixed-use buildings pursuant to ZR Sections 23-22 and 27-111. However, the interpretation advanced in the Draft Bulletin is inconsistent with a plain reading of the zoning text and, if adopted, would result in a reduction in housing production on zoning lots that contain existing or required non-residential floor area.

As the Department notes, ZR Section 23-22 establishes alternative maximum FARs for zoning lots containing standard residences and those containing qualifying affordable housing (QAH) or qualifying senior housing. Where QAH is provided, the maximum permitted FAR on the zoning lot is increased. Notably, Section 23-22 does not limit maximum FAR based solely on the amount of QAH provided.

ZR Section 27-111, by contrast, establishes a limitation on residential FAR for standard residences, providing that such FAR may only be exceeded by the amount of QAH provided. The Draft Bulletin, however, interprets Section 27-111 as imposing a cap on total FAR—an interpretation that is not supported by the plain language of Section 23-22.

This interpretation results in adverse consequences. Specifically, it would reduce the total amount of residential floor area permitted on zoning lots where non-residential uses are present or required. It would also disincentivize the inclusion of commercial and community facility uses that contribute to active, vibrant streetscapes, as such uses would effectively displace residential floor area. In practice, this could result in otherwise productive floor area being allocated to lower-value uses such as accessory parking, rather than community-serving or activating uses.

Additionally, this interpretation would disproportionately impact faith-based organizations and other mission-driven property owners pursuing infill development or zoning lot mergers, by effectively reducing the amount of residential floor area permitted in the presence of non-residential use. This results in reduced project proceeds and/or diminished housing production.

For example, in an R7A district, a project containing 0.51 FAR of QAH and 0.5 FAR of non-residential use would, under a plain reading of ZR Sections 23-22 and 27-111, permit a total FAR of 5.01, including 4.0 FAR of non-QAH residential use. Under the Draft Bulletin’s interpretation, however, the same project would be limited to 4.51 FAR, with the permitted non-QAH residential floor area reduced by the amount of non-residential use provided. As a result, remaining floor area would likely be underutilized or diverted to uses such as accessory parking rather than community facility or retail uses.

REBNY is aware of multiple pending and prospective mixed-use projects that rely on a plain language interpretation of the zoning text and would be adversely impacted if the Draft Bulletin’s interpretation is adopted. In these cases, the application of the Bulletin would result in reduced housing production, including affordable housing. We urge the department to carefully consider the real-world impacts of the interpretation of this bulletin.

Thank you for taking into consideration these points.

CONTACTS:

Maddie DeCerbo

Director of Urban Planning

Real Estate Board of New York

Mdecerbo@rebny.com