ToC

Chapter 3 - Special Permits by the Board of Standards and Appeals

The City of New York
Bill de Blasio, Mayor
City Planning Commission
Marisa Lago, Chair

In harmony with the general purpose and intent of this Resolution and in accordance with the provisions set forth in this Chapter, the Board of Standards and Appeals may, in an appropriate case:

(a)        grant special permits for specified uses in specific districts (referred to hereinafter as special permit uses);

(b)        permit specified modifications of the use or bulk regulations of this Resolution;

(c)        permit the renewal of revoked building permits as provided in Sections 11-31 to 11-33, inclusive, relating to Building Permits Issued before Effective Date of Amendment; or

(d)        permit the renewal of a variance, exception, or permit issued by the Board prior to December 15, 1961, in accordance with the provisions of Section 11-41 relating to Exceptions, Variances, or Permits Previously Authorized;

provided that, in each specific case, the requirement for findings as set forth in this Chapter (or in the Sections referred to in paragraph (c) or (d) of this Section) shall constitute a condition precedent to the grant of such special permit, modification, or renewal.

In addition to meeting the requirements, conditions, and safeguards prescribed by the Board as set forth in this Chapter, each such special permit use shall conform to and comply with all of the applicable district regulations on use, bulk, supplementary use regulations, regulations applying along district boundaries, accessory signs, accessory off-street parking and off-street loading, and all other applicable provisions of this Resolution, except as otherwise specifically provided in this Chapter or as they may be modified in accordance with paragraph (b) of this Section. In the case of required accessory off-street parking, such use shall satisfy the requirements specified for such uses in Sections 25-31, 36-21 or 44-21 (General Provisions) except that, where no parking requirement is specified therein, such use shall satisfy the requirements set forth in this Chapter.

In the waterfront area, the powers of the Board to grant special permits are made inapplicable or modified in accordance with the provisions of Section 62-131 (Applicability of Article VII, Chapter 3).

It shall be a further requirement that the decision or determination of the Board of Standards and Appeals shall set forth each required finding in each specific grant of a special permit use, modification or renewal and, in each denial thereof, which of the required findings have not been satisfied. In any such case, each finding shall be supported by substantial evidence or other data considered by the Board in reaching its decision, including the personal knowledge of or inspection by the members of the Board.

The Board of Standards and Appeals shall have the power, as authorized by Section 73-01, paragraph (a) or (b), and subject to such appropriate conditions and safeguards as the Board shall prescribe, to grant special permit uses or modifications of use, parking, or bulk regulations as specifically provided in this Chapter, provided in each case:

(a)        The Board shall make all of the findings required in the applicable sections of this Chapter with respect to each such special permit use or modification of use, parking or bulk regulations and shall find that, under the conditions and safeguards imposed, the hazards or disadvantages to the community at large of such special permit use or modification of use, parking or bulk regulations at the particular site are outweighed by the advantages to be derived by the community by the grant of such special permit. In each case the Board shall determine that the adverse effect, if any, on the privacy, quiet, light and air in the neighborhood of such special permit use or modification of use, parking or bulk regulations will be minimized by appropriate conditions governing location of the site, design and method of operation.

(b)        In all cases the Board shall deny a special permit whenever such proposed special permit use or modification of use, parking or bulk regulations will interfere with any public improvement project (including housing, highways, public buildings or facilities, redevelopment or renewal projects, or right-of-way for sewers, transit or other public facilities) which is approved by or pending before the Board of Estimate, Site Selection Board or the City Planning Commission as determined from the calendars of each such agency issued prior to the date of the public hearings before the Board of Standards and Appeals.

(c)        When under the applicable findings the Board is required to determine whether the special permit use or modification of use, parking or bulk regulations is appropriately located in relation to the street system, the Board shall in its discretion make such determination on the basis of the Master Plan of Arterial Highways and Major Streets on the official City Map. Whenever the Board is required to make a finding on the location of a proposed special permit use or modification of use, parking or bulk regulations in relation to secondary or local streets and such classification of streets is not shown on the Master Plan, the Board in its discretion shall request the City Planning Commission to establish a report on the appropriate classification of such street.

(d)        For applications relating to Sections 73-243, 73-48 and 73-49, the Board in its discretion shall request from the Department of Transportation a report with respect to the anticipated traffic congestion resulting from such special permit use or modification of use, parking or bulk regulations in the proposed location. If such a report is requested, the Board shall in its decision or determination give due consideration to such report and further shall have the power to substantiate the appropriate finding solely on the basis of the report of the Department of Transportation with respect to the issue referred.

(e)        If a term of years is specified in the applicable section, the Board shall establish a term of years not to exceed such maximum. For those special permit uses or modification of use parking or bulk regulations for which a maximum term has not been specified, the Board may fix an appropriate term for any such special permit use or modification of use parking or bulk regulations.

(f)        On application for renewal of any such special permit authorized in this Chapter, the Board shall determine whether the circumstances warranting the original grant still obtain. In addition, the Board shall ascertain whether the applicant has complied with the conditions and safeguards theretofore described by the Board during the prior term. In the event that the Board shall find the applicant has been in substantial violation thereof, it shall deny the application for renewal.

(g)        The Board may permit the enlargement or extension of any existing use, which, if new, would be permitted by special permit in the specified districts under the provisions of Section 73-01 and other applicable provisions of this Chapter, provided that before granting any such permit for enlargement or extension within the permitted districts, the Board shall make all of the required findings applicable to the special permit use, except that:

(1)        in the case of colleges or universities in R1 or R2 Districts, the Board may waive all such required findings set forth in Section 73-121 (Colleges or universities); and

(2)        in the case of public utility uses, the Board may waive all such required findings set forth in Sections 73-14 (Public Service Establishments) or 73-16 (Public Transit, Railroad or Electric Utility Substations).

No such enlargement or extension shall create a new non-compliance or increase the existing degree of non-compliance with the applicable bulk regulations, except as may be permitted in accordance with the provisions of Sections 73-62 to 73-68, inclusive, relating to Modification of Bulk Regulations.

The Board of Standards and Appeals may prescribe such conditions and safeguards to the grant of special permit (uses) as it may deem necessary in the specific case, in order to minimize the adverse effects of such special permit upon other property and the community at large. Such conditions and safeguards shall be incorporated in the building permit and certificate of occupancy. Failure to comply with such conditions or restrictions shall constitute a violation of this Resolution, and may constitute the basis for denial or revocation of a building permit or certificate of occupancy and for all other applicable remedies.

Subject to the general findings required by Section 73-03 and in accordance with the provisions contained in Sections 73-12 to 73-36, inclusive, the Board of Standards and Appeals shall have the power to permit special permit uses, and shall have the power to impose appropriate conditions and safeguards thereon.

In the Special Midtown District, the powers of the Board to permit special permit uses are modified by the provisions of Sections 81-13 (Special Permit Use Modifications) and 81-061 (Applicability of Chapter 3 of Article VII).

Except as permitted pursuant to this Chapter, in R3, R4 or R5 Districts, the following uses shall be subject to the height and setback requirements of an R2 District:

Camps

Public utility or public service facilities

Radio and television towers, non-accessory

Riding academies or stables.

The Board of Standards and Appeals may permit colleges or universities including professional schools but excluding business colleges or trade schools in R1 or R2 Districts, provided that the following findings are made:

(a)        that such use is so located as not to impair the character of the surrounding area or its future development as a neighborhood of single-family residences; and

(b)        that such use is so located as to draw a minimum of vehicular traffic to and through local streets.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

The Board of Standards and Appeals may permit college or school student dormitories or fraternity or sorority student houses in R1 or R2 Districts, provided that the following findings are made:

(a)        that such use does not exceed the maximum floor area ratio for residential use as set forth in Section 23-14 (Open Space and Floor Area Regulations in R1 Through R5 Districts);

(b)        that the amount of open space and its distribution on the zoning lot conform to standards appropriate to the character of the neighborhood;

(c)        that, notwithstanding the provisions of Section 25-33 (Waiver of Requirements for Spaces Below Minimum Number), at least one accessory off-street parking space is provided for each six beds; and

(d)        that such use conforms to all the other applicable Off-street Parking Regulations as set forth in Article II, Chapter 5.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

The Board of Standards and Appeals may permit non-commercial clubs, except swimming pool clubs or clubs with swimming pools located less than 500 feet from any lot line, in R1 or R2 Districts, provided that the following findings are made:

(a)        that such use is so located as not to impair the character of the surrounding area or its future development as a neighborhood of single-family residences;

(b)        that such use is so located as to draw a minimum of vehicular traffic to and through local streets;

(c)        that such use complies with the minimum required open space ratio and maximum floor area ratio for residential use as set forth in Section 23-14 (Open Space and Floor Area Regulations in R1 Through R5 Districts);

(d)        that not more than half the open space provided is occupied by driveways, private streets, open accessory off-street parking spaces or active outdoor recreation facilities; and

(e)        that the amount of open space provided and its distribution on the zoning lot conform to standards appropriate to the character of the neighborhood.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including requirements for shielding of floodlights, screening or landscaping.

The Board of Standards and Appeals may permit welfare centers in R1 or R2 Districts, provided that the following findings are made:

(a)        that such use is so located as not to impair the character of the surrounding area or its future development as a neighborhood of single-family residences; and

(b)        that such use is conveniently accessible to the people it serves.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In R3A, R3X, R3-1, R4A, R4B or R4-1 Districts, excluding lower density growth management areas, the Board of Standards and Appeals may permit ambulatory diagnostic or treatment health care facilities listed in Use Group 4, limited in each case to a maximum of 10,000 square feet of floor area, provided that the Board finds that the amount of open area and its distribution on the zoning lot conform to standards appropriate to the character of the neighborhood.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In R3-1, R3A, R3X, R4-1, R4A or R4B Districts in lower density growth management areas, the Board of Standards and Appeals may permit ambulatory diagnostic or treatment health care facilities listed in Use Group 4, limited in each case to a maximum of 10,000 square feet of floor area, provided that such facilities are located on zoning lots that comply with the minimum lot area and lot width regulations of Section 23-35 (Special Provisions for Zoning Lots Containing Certain Community Facility Uses in Lower Density Growth Management Areas).

In addition, for buildings in R3, R4 and R5 Districts in lower density growth management areas subject to the provisions of paragraph (b) of Section 24-012 (Exceptions to the bulk regulations of this Chapter) the Board may permit the development of a building pursuant to the bulk regulations of Article II, Chapter 4 (Bulk Regulations for Community Facilities in Residence Districts).

In order to grant such special permit, the Board shall find that:

(a)        the amount and type of open area and its distribution on the zoning lot is compatible with the character of the neighborhood;

(b)        the distribution of bulk on the zoning lot will not unduly obstruct access of light and air to adjoining properties or streets; and

(c)        the scale and placement of the building on the zoning lot relates harmoniously with surrounding buildings.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In R1 or R2 Districts, the Board of Standards and Appeals may permit outdoor tennis courts or ice skating rinks, provided that the Board finds that such use is so located as not to impair the character of the surrounding area or its future development as a neighborhood of single-family residences.

The Board shall prescribe the following conditions:

(a)        that such use and any accessory facilities affixed to the land are not located closer than 20 feet to any lot line; and

(b)        that all lighting is directed away from nearby zoning lots containing residences.

The Board may prescribe additional appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including requirements for screening or for landscaping.

In all Residence Districts, the Board of Standards and Appeals may permit electric or gas utility substations, limited in each case to a site of not more than 10,000 square feet, potable water pumping stations, or telephone exchanges or other communications equipment structures, provided that the following findings are made:

(a)        that such use will serve the residential area within which it is proposed to be located; that there are serious difficulties in locating it in a district wherein it is permitted as of right and from which it could serve the residential area, which make it necessary to locate such use within a Residence District; and

(b)        in the case of such electric or gas utility substations or potable water pumping stations, that the site for such use has a minimum lot area of 4,500 square feet.

The Board may prescribe appropriate conditions or safeguards to minimize adverse effects on the character of the surrounding area, including requirements that electric utility substations shall meet the performance standards for an M1 District; that such electric or gas utility substations or potable water pumping stations shall be surrounded with fences, barriers, or other safety devices; or that any such use shall be landscaped.

In all Residence Districts, the Board of Standards and Appeals may permit public utility stations for oil or gas metering or regulating, or terminal facilities located at river crossings for access to electric, gas or steam lines, provided that the Board finds that the proposed location, design and method of operation will not have a detrimental effect on the privacy and quiet of the neighborhood and the safety of its inhabitants.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including requirements for construction of fences, barriers or other safety devices, or for landscaping.

In all Residence and Commercial Districts, and in M1 Districts in the Special Downtown Jamaica District, the Board of Standards and Appeals may permit electric utility substations (including transformers, switches, or auxiliary apparatus) or public transit or railroad electric substations, limited in each case to a site of not more than 40,000 square feet, and in the case of electric utility substations to a site of not less than 10,000 square feet, provided that the following findings are made:

(a)        that such use will serve either the residential community within which it is proposed to be located or the residential community immediately adjacent, and that there are serious difficulties in locating such use in a nearby district where it is permitted as-of-right;

(b)        in the case of public transit or railroad electric substations, that the site for such use has a minimum frontage of 50 feet and a minimum lot area of 4,500 square feet;

(c)        that the site for such use is so located in Residence Districts as to minimize the adverse effects on the integrity of existing and future development, or is so located in Commercial Districts as to minimize the interruption of the continuity of retail frontage;

(d)        that the architectural and landscaping treatment of such use will blend harmoniously with the rest of the area; and

(e)        that such use will conform to the performance standards applicable to M1 Districts.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including requirements for soundproofing, for the construction of fences, barriers, or other safety devices, for screening of apparatus, or for landscaping.

In all Residence Districts, and in C1, C2 or C3 Districts, the Board of Standards and Appeals may permit overnight or outdoor day camps, whether commercial or philanthropic, for a term not to exceed five years, provided that the Board finds that such use will not cause excessive traffic congestion.

The Board shall prescribe the following conditions:

(a)        that a minimum of 150 square feet of lot area is provided for each child enrolled in the camp;

(b)        that along any rear or side lot lines, yards are provided, each with a minimum depth (or width) of 40 feet, within which no camp equipment is affixed to the land;

(c)        that in Residence Districts or C3 Districts the zoning lot is screened along the rear and side lot lines, and in C1 or C2 Districts along any rear or side lot line adjoining a Residence District, by a strip at least four feet wide, densely planted with shrubs or trees which are at least four feet high at the time of planting and which are of a type which may be expected to form a year-round dense screen at least six feet high within three years; and

(d)        that in the case of outdoor day camps, for each 6,000 square feet of lot area, one accessory off-street parking space of 500 square feet is provided to accommodate buses used in the transportation of campers, in addition to the accessory off-street parking requirement established for such uses under the applicable provisions of Sections 25-31 or 36-21 (General Provisions).

The Board may prescribe additional appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In all Residence Districts, and in C2, C6 or C7 Districts, the Board of Standards and Appeals may permit riding academies or stables operated as a recreation service, for a term not to exceed five years, provided that the following findings are made:

(a)        that such use is so located as not to impair the essential character of the surrounding area;

(b)        that adequate horseback riding facilities are available on the same zoning lot or within 600 feet of such zoning lot;

(c)        that the location and operation of such use will not be such as to result in any serious traffic hazards or conflicts on nearby streets; and

(d)        that in Residence Districts, no stables or riding areas are located within 40 feet of any side or rear lot line.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including requirements for sanitation, for screening, or for landscaping.

73-19

Schools

In C8 or M1 Districts, the Board of Standards and Appeals may permit schools which have no residential accommodations except accessory accommodations for a caretaker, provided that the following findings are made:

(a)        that within the neighborhood to be served by the proposed school there is no practical possibility of obtaining a site of adequate size located in a district wherein it is permitted as of right, because appropriate sites in such districts are occupied by substantial improvements;

(b)        that such school is located not more than 400 feet from the boundary of a district wherein such school is permitted as-of-right;

(c)        that an adequate separation from noise, traffic and other adverse effects of the surrounding non-Residential Districts is achieved through the use of sound-attenuating exterior wall and window construction or by the provision of adequate open areas along lot lines of the zoning lot; and

(d)        that the movement of traffic through the street on which the school is located can be controlled so as to protect children going to and from the school. The Board shall refer the application to the Department of Traffic for its report with respect to vehicular hazards to the safety of children within the block and in the immediate vicinity of the proposed site.

The Board may prescribe additional appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In C1 Districts, the Board of Standards and Appeals may permit theaters with a capacity of not more than 500 persons in a new or existing building. In C1-5, C1-6, C1-7, C1-8 and C1-9 Districts, motion picture theaters shall have a minimum of four square feet of waiting area within the zoning lot for each seat. The required waiting space shall be either in an enclosed lobby or open area that is covered or protected during inclement weather and shall not include space occupied by stairs or space within 10 feet of a refreshment stand or of an entrance to a public toilet. The Board shall not apply these requirements to any additional motion picture theater created by the subdivision of an existing motion picture theater.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of nearby residential areas.

In M1-5A or M1-5B Districts, the Board of Standards and Appeals may permit theaters for a term not to exceed five years, provided that the following findings are made:

(a)        that such use will not impair the character or the future use or development of the surrounding residential or mixed use neighborhoods;

(b)        that such use will not cause undue congestion in local streets; and

(c)        that such use provides a waiting area of adequate size to prevent obstruction of street areas and other uses within the same or other building.

The Board shall prescribe appropriate controls to minimize adverse effects on the character of the surrounding area, including, but not limited to, location of entrances and operable windows; provision of sound-lock vestibules; specification of acoustical insulation; maximum size of establishment; number, kinds of amplification of musical instruments or voices; shielding of flood lights; adequate screening; curb cuts, or parking.

In any C2, C4, C6 or C7 District whose longer dimension is 375 feet or more (exclusive of land in streets), the Board of Standards and Appeals may permit automotive service stations, provided that the following findings are made:

(a)        that the site for such use has a minimum area of 7,500 square feet; and

(b)        that the site for any such use which is not located on an arterial highway or a major street has a maximum area of 15,000 square feet.

The Board shall prescribe the following conditions:

(1)        that any facilities for lubrication, minor repairs or washing are located within a completely enclosed building;

(2)        that the site is so designed as to provide reservoir space for five waiting automobiles within the zoning lot in addition to spaces available within an enclosed lubritorium or at the pumps;

(3)        that entrances and exits are so planned that, at maximum expected operation, vehicular movement into or from the automotive service station will cause a minimum of obstruction on streets or sidewalks;

(4)        that, along any rear lot line or side lot line adjoining a Residence District, the zoning lot is screened, as the Board may prescribe, by either of the following methods:

(i)        a strip at least four feet wide, densely planted with shrubs or trees at least four feet high at the time of planting and which are of a type which may be expected to form a year-round dense screen at least six feet high within three years; or

(ii)        a wall or barrier or uniformly painted fence of fire-resistant material at least six feet high, but not more than eight feet above finished grade. Such wall, barrier, or fence may be opaque or perforated, provided that not more than 50 percent of its face is open; and

(5)        that signs, other than advertising signs, shall be subject to the applicable district sign regulations, provided that:

(i)        in C2 Districts, the provisions of Sections 32-642 (Non-illuminated signs) and 32-643 (Illuminated non-flashing signs) shall be modified to permit non-illuminated or illuminated non-flashing signs with a total surface area not exceeding 150 square feet on any zoning lot; and

(ii)        the provisions set forth in Section 32-652 (Permitted projection in all other Commercial Districts) may be modified in accordance with the provisions of Section 73-212 (Projection of accessory signs).

The Board may prescribe additional appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, and to protect residential zoning lots which are adjoining or across the street.

In C2, C4, C6 or C8 Districts, the Board of Standards and Appeals may permit not more than one sign accessory to an automotive service station, to project across a street line more than the amount permitted in Section 32-652 (Permitted projection in all other Commercial Districts), but in no case more than four feet, provided that the following findings are made:

(a)        That projection in the amount permitted is required for adequate advance identification of such automotive service station to motorists on heavily traveled streets in the interests of traffic safety.

(b)        That such sign conforms to all other applicable district sign regulations, and its total surface area is not more than 30 square feet.

In C3 Districts, the Board of Standards and Appeals may permit commercial beaches for a term not to exceed five years, provided that the Department of Health has certified that the waters may be used for bathing purposes and do not violate safe and acceptable standards of water pollution, and provided further that the Board shall make the following findings:

(a)        that such use is so located as to minimize interference with the movement and navigation of ships or boats;

(b)        that no more than 20 percent of the shore line in any one mapped district is used for such use;

(c)        that no accessory stands for the sale of food or drink shall be located within 100 feet of a Residence District boundary, and that the total floor area of all such stands shall not exceed 200 square feet; and

(d)        that such use will not create such traffic congestion as to impair the residential character of the area. The Board shall refer the application to the Department of Traffic for a report as to whether the use will create such detrimental traffic congestion that it impairs such residential character.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, or requirements for the shielding of floodlights or adequate screening.

In C3 Districts, the Board of Standards and Appeals may permit commercial swimming pools with a pool area of not more than 5,000 square feet for a term not to exceed five years, provided that the following findings are made:

(a)        that such use is so located as not to impair the essential character or the future use or development of the nearby residential neighborhood; and

(b)        that such pool is not located within 200 feet of the shore line.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including requirements for shielding of floodlights or adequate screening.

In C1-1, C1-2, C1-3, C1-4, C2-1, C2-2, C2-3, C2-4, C3, C5, M1-5A or M1-5B Districts, the Board of Standards and Appeals may permit eating or drinking establishments with entertainment but not dancing, with a capacity of 200 persons or less, for a term not to exceed five years, provided that the following findings are made:

(a)        that such use will not impair the character or the future use or development of the surrounding residential or mixed use neighborhood;

(b)        that such use will not cause undue congestion in local streets;

(c)        that in M1-5A and M1-5B Districts, eating and drinking places shall be limited to not more than 5,000 square feet of floor space;

(d)        that in C1-1, C1-2, C1-3, C1-4, C2-1, C2-2, C2-3, C2-4, C5, M1-5A and M1-5B Districts, such use shall take place in a completely enclosed building; and

(e)        that the application is made jointly by the owner of such building and the operators of such eating or drinking establishment.

The Board may modify the regulations relating to signs in C3 Districts to permit a maximum total surface area of 50 square feet of non-illuminated or illuminated non-flashing signs, provided that any illuminated sign shall not be less than 150 feet from the boundary of any Residence District.

The Board shall prescribe appropriate controls to minimize adverse effects on the character of the surrounding area, including, but not limited to, location of entrances and operable windows, provision of sound-lock vestibules, specification of acoustical insulation, maximum size of establishment, kinds of amplification of musical instruments or voices, shielding of floodlights, adequate screening, curb cuts or parking.

In C3 Districts, the Board of Standards and Appeals may permit eating or drinking establishments (including those which provide outdoor table service or musical entertainment but not dancing, with a capacity of 200 persons or less, and including those which provide music for which there is no cover charge and no specified showtime) for a term not to exceed five years, provided that the following findings are made:

(a)        that such use is so located as not to impair the essential character or the future use or development of the nearby residential neighborhood; and

(b)        that such use will generate a minimum of vehicular traffic to and through local streets in residential areas.

The Board may modify the regulations relating to signs in C3 Districts to permit a maximum total surface area of 50 square feet of non-illuminated or illuminated non-flashing signs, provided that any illuminated sign shall not be less than 150 feet from the boundary of any Residence District.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including requirements for shielding of floodlights or adequate screening.

In C1-1, C1-2 and C1-3 Districts, (except in Special Purpose Districts) the Board of Standards and Appeals may permit eating or drinking places (including those which provide musical entertainment but not dancing, with a capacity of 200 persons or less, and those which provide outdoor table service) with accessory drive-through facilities for a term not to exceed five years, provided that the following findings are made:

(a)        the drive-through facility contains reservoir space for not less than 10 automobiles;

(b)        the drive-through facility will cause minimal interference with traffic flow in the immediate vicinity;

(c)        the eating or drinking place with accessory drive-through facility fully complies with the accessory off-street parking regulations for the indicated zoning district, including provision of the required number of accessory off-street parking spaces for the indicated zoning district (for the purpose of this finding, the waiver provisions of Sections 36-231 and 36-232 shall be inapplicable);

(d)        the character of the commercially zoned street frontage within 500 feet of the subject premises reflects substantial orientation toward the motor vehicle, based upon the level of motor vehicle generation attributable to the existing commercial uses contained within such area and to the subject eating or drinking place (excluding the accessory drive-through facility portion);

(e)        the drive-through facility shall not have an undue adverse impact on residences within the immediate vicinity of the subject premises; and

(f)        there will be adequate buffering between the drive-through facility and adjacent residential uses.

In connection therewith, the Board may modify the requirement of Section 32-411 (In C1, C5, C6-5 or C6-7 Districts) insofar as it relates to the accessory drive-through facility. The Board may prescribe additional appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In C2, C3, C4*, C6-4**, M1-5A, M1-5B, M1-5M and M1-6M Districts, the Special Hudson Square District and the Special Tribeca Mixed Use District, the Board of Standards and Appeals may permit eating or drinking establishments with entertainment and a capacity of more than 200 persons or establishments of any capacity with dancing, for a term not to exceed three years, provided that the following findings are made:

(a)        that a minimum of four square feet of waiting area within the zoning lot shall be provided for each person permitted under the occupant capacity as determined by the New York City Building Code. The required waiting area shall be in an enclosed lobby and shall not include space occupied by stairs, corridors or restrooms. A plan shall be provided to the Board to ensure that the operation of the establishment will not result in the gathering of crowds or the formation of lines on the street;

(b)        that the entrance to such use shall be a minimum of 100 feet from the nearest Residence District boundary;

(c)        that such use will not cause undue vehicular or pedestrian congestion in local streets;

(d)        that such use will not impair the character or the future use or development of the surrounding residential or mixed use neighborhoods;

(e)        that such use will not cause the sound level in any affected conforming residential use, joint living-work quarters for artists or loft dwelling to exceed the limits set forth in any applicable provision of the New York City Noise Control Code; and

(f)        that the application is made jointly by the owner of the building and the operators of such eating or drinking establishment.

The Board shall prescribe appropriate controls to minimize adverse effects on the character of the surrounding area, including, but not limited to, location of entrances and operable windows, provision of sound-lock vestibules, specification of acoustical insulation, maximum size of establishment, kinds of amplification of musical instruments or voices, shielding of flood lights, adequate screening, curb cuts or parking.

Any violation of the terms of a special permit may be grounds for its revocation.

*        In C4 Districts where such use is within 100 feet from a Residence District boundary

**        In C6-4 Districts mapped within that portion of Community District 5, Manhattan, bounded by West 22nd Street, a line 100 feet west of Fifth Avenue, a line midway between West 16th Street and West 17th Street, and a line 100 feet east of Sixth Avenue

73-25

Boatels

In C3 Districts, the Board of Standards and Appeals may permit boatels provided that the following findings are made:

(a)        that such use is so located as not to impair the essential character or the future use or development of the nearby residential neighborhood; and

(b)        that any restaurant permitted in connection with such use satisfies the conditions for issuance of special permits to eating or drinking places, as set forth in Section 73-24.

The Board may modify the regulations relating to signs in C3 Districts to permit a maximum total surface area of 50 square feet of non-illuminated or illuminated non-flashing signs on each of not more than three street or water frontages.

The Board may prescribe appropriate conditions or safeguards to minimize adverse effects on the character of the surrounding area, including requirements with respect to the location of illuminated signs, the shielding of floodlights or adequate screening.

In C8 or M1 Districts, the Board of Standards and Appeals may permit children's amusement parks with an area of at least 10,000 square feet but not more than 75,000 square feet, for a term not to exceed five years, provided that the following findings are made:

(a)        that such use is so located as not to impair the essential character or the future use or development of the surrounding area;

(b)        that the principal vehicular access for such use is not located on a local street or on an arterial highway;

(c)        that such use is not located within 400 feet of a Residence District;

(d)        that vehicular entrances and exits for such use are provided separately, and that no entrance is located less than 50 feet from any exit; and

(e)        that such use will not cause traffic congestion or other adverse effects which interfere with the appropriate use of land in the district or in any adjacent district, and that such use is so located as to minimize vehicular traffic to and through local streets in residential areas.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, or requirements for shielding of floodlights, adequate screening, or surfacing all access roads or driveways.

In C1 or C4 Districts, the Board of Standards and Appeals may permit funeral establishments provided that the following findings are made:

(a)        that there are serious difficulties involved in locating within a district wherein such use is permitted as-of-right and from which it could serve the needs of its prospective clientele, which make it necessary to locate such use within a C1 or C4 District;

(b)        that the site for such use is so located as to cause minimum interruption of the continuity of the frontage devoted to retail shopping uses. In determining whether the use will cause only minimum interruption of such retail frontage, the Board may make a favorable finding on the ground that there exists a substantial number of other incompatible uses interrupting such frontage within 200 feet on either side of the proposed site (not including land in streets); and

(c)        that such use is so located as to draw a minimum of vehicular traffic to and through local streets in residential areas.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In C6 Districts, the Board of Standards and Appeals may permit newspaper publishing establishments provided that the following findings are made:

(a)        that such use will not cause undue traffic congestion in local streets;

(b)        that such use is not located within 200 feet of a Residence District; and

(c)        that such use shall conform to all performance standards applicable in M1 Districts.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In all Manufacturing Districts, the Board of Standards and Appeals may permit the utilization of Class IV explosives, as defined in Section 42-272 (Classifications), in manufacturing processes or other production and storage accessory thereto, provided that the following findings are made:

(a)        that such manufacture is carried on within completely enclosed buildings or other structures whose exterior walls are of incombustible materials;

(b)        that such buildings or other structures are protected throughout by an automatic fire extinguishing system which meets all requirements set forth in the Administrative Code of the City of New York; and

(c)        that such utilization and the storage accessory thereto complies with all additional applicable provisions of the Administrative Code and all rules and regulations of the Fire Department.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In all districts, the Board of Standards and Appeals may permit non-accessory radio or television towers, provided that it finds that the proposed location, design, and method of operation of such tower will not have a detrimental effect on the privacy, quiet, light and air of the neighborhood.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In all districts, the Board of Standards and Appeals may permit, for a term not to exceed 10 years, the extraction of sand, gravel, or clay from a zoning lot which is limited in size to a maximum of 50 acres and which is located not less than 1,000 feet from the nearest boundary of any zoning lot 10 acres or more in area used for such extraction, provided that the Board finds that such use is so located as not to impair the essential character or the future use or development of the surrounding area, and provided that the following conditions are met:

(a)        that the applicant submits a site plan showing the proposed extent and depth of the area to be excavated, together with the certification of the Department of Buildings that the proposed method of operations and the final elevation of the pit will not undermine or cause settlement to nearby streets, sewers, buildings or other structures, or installations;

(b)        that the applicant submits a plan for the rehabilitation of the zoning lot to be undertaken after the completion of the excavation operations which is satisfactory to the Board, and posts a bond, in an amount to be determined by the Board, for the performance of such rehabilitation;

(c)        that the entire perimeter of the zoning lot, except for necessary truck roads, is fenced, including locked gates, so as to prevent children from gaining access to the excavated areas;

(d)        that one accessory off-street parking space is provided for every 2,000 square feet of lot area or for every three employees, whichever shall require a lesser number of spaces; and

(e)        that the performance standards for M1 Districts shall apply to such operations in all districts other than M2 or M3 Districts, where the applicable performance standards shall govern.

The Board of Standards and Appeals shall impose the following conditions on the method of operation of such uses:

(a)        that all drilling, blasting, or excavation operations shall be limited to Mondays through Fridays between the hours of 8:00 a.m. and 5:00 p.m.;

(b)        that the emission of process dust either from the area of operations or from the excavated materials themselves shall be minimized by frequent watering or by such other means as the Board shall direct;

(c)        that the warning notices respecting unlawful entry shall be posted on the fence, and that a watchman shall be stationed on the premises to police the entire area after normal working hours and on weekends and holidays; and

(d)        that excavation operations shall be undertaken in such manner as to avoid the creation of undrained pockets and the formation of stagnant pools. When topographical conditions make such compliance impossible, all pools of water resulting from surface drainage shall be sprayed in accordance with the requirements of the Department of Health to eliminate breeding places for mosquitoes or other insects.

The Board may prescribe additional appropriate conditions and safeguards to protect the public health, safety and general welfare during the period between the cessation of operations and the final rehabilitation of the site in accordance with approved plans.

In M3 Districts, the Board of Standards and Appeals may permit the manufacture of gaseous or liquid oxygen provided that such manufacture complies with all the applicable provisions of the Administrative Code of the City of New York and all rules and regulations of the Fire Department.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including adequate buffering.

In M1 Districts, the Board of Standards and Appeals may permit the storage of non-flammable liquids in tanks to be located no closer than 100 feet from a Residence District boundary.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including adequate buffering.

In all Residence Districts except R1, R2, R3 and R4 Districts, the Board of Standards and Appeals may permit, for a term of five years, fire stations in prefabricated temporary structures, provided that such use is located in a high fire incidence area as designated by the Fire Department.

For fire stations in prefabricated temporary structures, in all Residence Districts except R1, R2, R3 and R4 Districts and in all Commercial and Manufacturing Districts, the Board may permit modifications of the applicable regulations in Sections 23-40 to 23-55, inclusive, Sections 33-20 to 33-31, inclusive, and Sections 43-20 to 43-22, inclusive, relating to Yard Regulations.

In C4-1 Districts, or in M2 or M3 Districts which contain shopping centers on March 4, 1976, the Board of Standards and Appeals may permit amusement arcades to be located within shopping centers for a term of one year, provided the following findings are made:

(a)        that the application for the special permit is a joint application made by the management of such shopping center and the operator of the proposed amusement arcade;

(b)        that such amusement arcade will be beneficial to the other uses located within the shopping center; and

(c)        that the use is so located within the shopping center that no entrance and no sign fronts upon or faces a street.

The special permit may be renewed for subsequent one year terms provided the Board finds that the facts upon which the special permit was granted have not substantially changed.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including limitations on hours of operation or requirements for security and supervision.

(a)        In C1-8X, C1-9, C2, C4, C5, C6, C8, M1, M2 or M3 Districts, and in certain special districts as specified in the provisions of such special district, the Board of Standards and Appeals may permit physical culture or health establishments as defined in Section 12-10, including gymnasiums (not permitted under Use Group 9) or massage establishments other than adult physical culture establishments, for a term not to exceed 10 years, provided the following findings are made:

(1)        that such use is so located as not to impair the essential character or the future use or development of the surrounding area; and

(2)        that such use contains:

(i)        one or more of the following regulation size sports facilities: handball courts, basketball courts, squash courts, paddleball courts, racketball courts, tennis courts; or

(ii)        a swimming pool of a minimum 1,500 square feet; or

(iii)        facilities for classes, instruction and programs for physical improvement, body building, weight reduction, aerobics or martial arts; or

(iv)        facilities for the practice of massage by New York State licensed masseurs or masseuses.

Therapeutic or relaxation services may be provided only as accessory to programmed facilities as described in paragraphs (a)(2)(i) through (a)(2)(iv) of this Section.

(b)        In C4-7, C5-2, C5-3, C5-4, C5-5, C6-4, C6-5, C6-6, C6-7, C6-8 or C6-9 Districts, the Board may permit physical culture or health establishments located on the roof of a commercial building or the commercial portion of a mixed building, provided the following additional findings are made:

(1)        that such use shall be an incidental part of a permitted physical culture or health establishment located within the same commercial or mixed building;

(2)        that such use shall be open and unobstructed to the sky;

(3)        that such use shall be located on a roof not less than 23 feet above curb level;

(4)        that the application for such use shall be made jointly by the owner of the building and the operator of such physical culture or health establishment; and

(5)        that the Board shall prescribe appropriate controls to minimize adverse impacts on the surrounding area, including but not limited to, requirements for the location, size and types of signs, limitations on the manner and/or hours of operation, shielding of floodlights, adequate screening, and the control of undue noise including the amplification of sound, music or voices.

(c)        No special permit shall be issued pursuant to this Section unless:

(1)        the Board shall have referred the application to the Department of Investigation for a background check of the owner, operator and all principals having an interest in any application filed under a partnership or corporate name and shall have received a report from the Department of Investigation which the Board shall determine to be satisfactory; and

(2)        the Board, in any resolution granting a special permit, shall have specified how each of the findings required by this Section are made.

The Board shall retain the right to revoke the special permit, at any time, if it determines that the nature or manner of operation of the permitted use has been altered from that authorized.

The Board may prescribe appropriate conditions and safeguards including location of signs and limitations on the manner and/or hours of operation in order to minimize adverse effects on the character of the surrounding community.

Subject to the general findings required by Section 73-03 and in accordance with the provisions contained in Sections 73-42 to 73-53, the Board of Standards and Appeals shall have the power to permit modification of use or parking regulations of this Resolution, and shall have the power to impose appropriate conditions and safeguards thereon.

In all districts, the Board of Standards and Appeals may permit the expansion of a conforming use located within a building or other structure into a district where such use is not permitted, provided that the enlarged use is contained within a single block and the expansion of either the depth or the width of the conforming use is no greater than 50 percent of either the depth or width, respectively, of that portion of the zoning lot located in the district where such use is a conforming use, but in no case shall the area of the expansion exceed 50 percent of the area of the zoning lot located in the district where such use is a conforming use, and provided further that the following findings are made:

(a)        there is no reasonable possibility of expanding such use within the existing district where it is a conforming use;

(b)        such conforming use was in existence prior to January 6, 1965, or the date of any applicable subsequent amendment to the zoning maps; and

(c)        such expanded use is not so situated or of such character or size as to impair the essential character or the future use or development of the surrounding area.

In the case of a use which, at the time of application to the Board under the provisions of this Section, is already partially located in the more restricted district, where it is a non-conforming use, or which has extended into such district in accordance with the provisions of Section 77-11 (Conditions for Application of Use Regulations to Entire Zoning Lot), the maximum expansion to be permitted under the provisions of this Section shall be computed as 50 percent of the width or depth of that portion of the zoning lot located within the mapped boundary of the district where such use is a conforming use, and shall be measured from such mapped district boundary.

In every case where the Board permits such expansion, the building or other structure, or portion thereof, situated on the expanded portion of the zoning lot shall comply on such expanded portion with the applicable bulk regulations of the district in which such use is a conforming use and, subject to such compliance on the expanded portion of the zoning lot, the Board may permit such conforming use, even when located in an existing building or other structure which is non-complying, to expand across the district boundary in accordance with the provisions of this Section.

All the applicable regulations of the district in which such use is a conforming use shall apply on the entire zoning lot, or any portion thereof, to be occupied by such use and any special regulation applying along district boundaries shall apply along rear and side lot lines of the expanded zoning lot.

Where yard regulations are applicable, the Board may permit the expanded area to include, in addition to area permitted under other provisions of this Section, such area as is necessary for the required yards. However, such additional area shall not be counted as lot area for purposes of bulk computations.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the district including requirements for adequate screening.

The Board of Standards and Appeals may permit a reduction in the number of accessory off-street parking spaces required under the provisions of Sections 25-31, 36-21 or 44-21 (General Provisions), in accordance with the applicable provisions of Sections 73-431 through 73-435 for the reduction of parking spaces.

In all districts, the Board of Standards and Appeals may permit a waiver of, or a reduction in, the number of required accessory off-street parking spaces for houses of worship, provided:

(a)        the house of worship will be operated or utilized in such a manner as to reduce demand for on-site parking; and

(b)        such reduction is commensurate with the reduced demand for on-site parking.

Factors to be considered by the Board may include, without limitation, the size of the congregation, the frequency and time of worship services and other events, and the proximity of public transportation. The Board may impose appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In all Commercial and Manufacturing Districts, the Board of Standards and Appeals may permit a reduction in the number of accessory off-street parking spaces required under the provisions of Sections 25-31, 36-21 or 44-21 (General Provisions) for uses in parking requirement category D (Places of Assembly) whenever such uses are located on the same zoning lot as other uses, proportionate to the extent that the Board finds:

(a)        that the spaces accessory to such other uses will remain available for use by persons visiting the place of assembly during the entire period that such place of assembly remains in use; and

(b)        that, in accordance with submitted schedules of the times of operation for all uses on the zoning lot, there will be no conflict in the use of such accessory off-street parking spaces, and that the provision of the full quota of required off-street parking spaces for places of assembly is therefore not needed. The permit to reduce such spaces shall be automatically revoked whenever there is a change in the nature of the conditions upon which such reduced requirements were based, including changes in use, availability of spaces or hours of operation.

For zoning lots within the Transit Zone with buildings containing income-restricted housing units in receipt of a certificate of occupancy prior to March 22, 2016, the Board of Standards and Appeals may permit a waiver of, or a reduction in, the number of accessory off-street parking spaces required for such income-restricted housing units prior to March 22, 2016, provided that the Board finds that such waiver or reduction will:

(a)        facilitate an improved site plan;

(b)        facilitate the creation or preservation of affordable housing, where a development includes new residential floor area on the zoning lot;

(c)        not cause traffic congestion; and

(d)        not have undue adverse effects on residents, businesses or community facilities in the surrounding area, as applicable, including the availability of parking spaces for such uses.

Factors to be considered by the Board may include, without limitation, the use of the existing parking spaces by residents of the zoning lot, the availability of parking in the surrounding area and the proximity of public transportation. The Board may impose appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

For zoning lots outside the Transit Zone with buildings containing affordable independent residences for seniors in receipt of a certificate of occupancy prior to March 22, 2016, the Board of Standards and Appeals may permit a reduction in the number of accessory off-street parking spaces required for such affordable independent residences for seniors prior to March 22, 2016, provided that the Board finds that:

(a)        such reduction will facilitate an improved site plan;

(b)        any new dwelling units created on the portion of the zoning lot previously occupied by such parking spaces will be income-restricted housing units;

(c)        such reduction will not cause traffic congestion; and

(d)        such reduction will not have undue adverse effects on residents, businesses or community facilities in the surrounding area, as applicable, including the availability of parking spaces for such uses.

Any permitted reduction shall be in compliance with the parking requirement for affordable independent residences for seniors developed after March 22, 2016, as set forth in Section 25-252.

Factors to be considered by the Board may include, without limitation, the use of the existing parking spaces by residents of the zoning lot, the availability of parking in the surrounding area and the proximity to public transportation. The Board may impose appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In all districts in the Transit Zone, the Board of Standards and Appeals may permit a waiver of, or reduction in, the number of required accessory off-street parking spaces required for government-assisted dwelling units subject to restrictions on rents in developments or enlargements, provided that the conditions and findings set forth in this Section are met.

As a condition for such waiver or reduction, at least 20 percent of all dwelling units in such development or enlarged building shall be income-restricted housing units, and an additional 30 percent of all dwelling units in such development or enlarged building shall be subject to a legally binding restriction limiting rents as prescribed by a City, State, or Federal agency, law, regulation, or regulatory agreement, for a period of not less than 30 years.

In order to grant such permit, the Board shall find that such waiver or reduction will:

(a)        facilitate such development or enlargement;

(b)        not cause traffic congestion; and

(c)        not have undue adverse effects on residents, businesses or community facilities in the surrounding area, as applicable, including the availability of parking spaces for such uses.

The Board may impose appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In the districts indicated, the Board of Standards and Appeals may permit a reduction in the number of accessory off-street parking spaces required by the provisions of Section 36-21 or 44-21 (General Provisions) for ambulatory diagnostic or treatment facilities listed in Use Group 4 and uses in parking requirement category B1 in Use Group 6, 7, 8, 9, 10, 11, 14 or 16 to the applicable number of spaces specified in the table set forth at the end of this Section, provided that the Board finds that occupancy by ambulatory diagnostic or treatment facilities listed in Use Group 4 or uses in parking category B1 is contemplated in good faith on the basis of evidence submitted by the applicant. In such a case the Board shall require that the certificate of occupancy issued for the building within which such use is located shall state that no certificate shall thereafter be issued if the use is changed to a use listed in parking category B unless additional accessory off-street parking spaces sufficient to meet such requirements are provided on the site or within the permitted off-site radius.

REDUCED ACCESSORY OFF-STREET PARKING SPACES REQUIRED FOR AMBULATORY DIAGNOSTIC OR TREATMENT FACILITIES LISTED IN USE GROUP 4 AND COMMERCIAL USES IN PARKING REQUIREMENT CATEGORY B1

Parking Spaces Required per Number of Square Feet of Floor Area *

Districts

1 per 400

C1-1 C2-1 C3 C4-1

1 per 600

C1-2 C2-2 C4-2 C8-1

M1-1 M1-2 M1-3

M2-1 M2-2 M3-1

1 per 800

C1-3 C2-3 C4-3 C7 C8-2

*        For ambulatory diagnostic or treatment facilities listed in Use Group 4, parking spaces required per number of square feet of floor area or cellar space, except cellar space used for storage

In all districts, the Board of Standards and Appeals may modify the provisions regulating the location of accessory off-street parking spaces provided off the site, in accordance with the provisions of this Section which are applicable in the specified district. However, in no event shall accessory off-street parking spaces be permitted off-site in a public parking garage.

This Section shall not apply to the Manhattan Core where the regulations set forth in Article I, Chapter 3, shall apply.

In all cases, the Board may impose appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

The Board of Standards and Appeals may permit off-site spaces accessory to residences or to non-profit hospital staff dwellings to be located in any district except an R1 or R2 District, or at a greater distance from the zoning lot than the maximum distance specified in the applicable district regulations, provided that the following special findings are made:

(a)        that the required accessory on-street parking spaces cannot reasonably be provided on the zoning lot because of physical conditions including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions;

(b)        that within the maximum permitted radius for off-site parking or within a district other than a Residence District, there is substantial difficulty in obtaining a site of sufficient size to accommodate the required accessory off-street parking spaces because such sites are occupied by substantial improvements;

(c)        that where such spaces are located at a greater distance from the zoning lot than the maximum distance permitted by the district regulations, such distance is not greater than as shown in the following table for the specified districts; and

Maximum Distance (in feet)

Districts

1,200

R3 R4 R5 R6 R7-1 R7B

C1-1 C1-2 C1-3 C2-1 C2-2 C2-3 C3 C4-1 C4-2 C4-3

1,500

R7-2 R7A R7X R8 R9 R10

C1-4 C1-5 C1-6 C1-7 C1-8 C1-9 C2-4 C2-5 C2-6 C2-7 C2-8

C4-4 C4-5 C4-6 C4-7 C5 C6

(d)        that where such off-site spaces are located in a Residence District, they are so located as not to impair the essential character or the future use or development of the nearby residential neighborhood.

The Board of Standards and Appeals may permit off-street parking spaces accessory to a community facility use other than a non-profit hospital staff dwelling, which use is located in an R1, R2, R3 or R4 District, to be provided off-site and located in any district, or may permit off-street parking spaces accessory to a community facility use other than a non-profit hospital staff dwelling, which use is located in any other Residence District, to be provided off-site and located in an R1, R2, R3 or R4 District or located in any other Residence District at a greater distance from the zoning lot than the maximum distance specified in Section 25-53 (Off-site Spaces for Permitted Non-residential Uses), provided that in such instances, all such spaces shall be not further than 600 feet from the nearest boundary of the zoning lot containing such use, and provided further that the following special findings are made:

(a)        that where such spaces are located in an R1 or R2 District, the community facility use to which they are accessory is a use permitted as-of-right in such district;

(b)        that there is no way to arrange such spaces on the same zoning lot as such use;

(c)        that such spaces are so located as to draw a minimum of vehicular traffic to and through streets having predominantly residential frontage; and

(d)        either that such spaces are located on an adjoining zoning lot or a zoning lot directly across the street from such use or, if such spaces are not so located, that there is substantial difficulty in obtaining a site of sufficient size to accommodate the required accessory off-street parking spaces on an adjoining zoning lot or a zoning lot directly across the street from such use or in a location where such off-site spaces would be permitted as-of-right, because such sites are occupied by substantial improvements.

For non-residential uses, other than non-profit hospital staff dwellings, the Board of Standards and Appeals may extend the maximum permitted radius for off-site parking spaces located in Commercial or Manufacturing Districts, as specified in Sections 25-53 (Off-site Spaces for Permitted Non-residential Uses), 36-43 (Off-site Spaces for Commercial or Community Facility Uses) or 44-32 (Off-site Spaces for All Permitted Uses), from 600 to 1,200 feet, whenever the Board finds:

(a)        that the required accessory off-street parking spaces cannot reasonably be provided on the zoning lot because of physical conditions including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions; and

(b)        that, within 600 feet of a boundary of the zoning lot, there is substantial difficulty in obtaining a site of sufficient size to accommodate the required accessory off-street parking spaces because such sites are occupied by substantial improvements.

The Board of Standards and Appeals may modify, as applicable, the provisions of Sections 25-53 (Off-site Spaces for Permitted Non-residential Uses), 25-542 (Shared parking facilities for houses of worship), 36-43 (Off-site Spaces for Commercial or Community Facility Uses), 36-442 (Shared parking facilities for houses of worship), 44-32 (Off-site Spaces for All Permitted Uses) or 44-332 (Shared facilities for houses of worship), relating to the maximum permitted distance of the location of accessory off-street parking spaces for houses of worship, provided that in such instances all such spaces shall be not further than 1,000 feet from the nearest boundary of the zoning lot containing such house of worship, upon finding that:

(a)        such spaces conform to all applicable regulations of the district in which they are located; and

(b)        the location of such spaces will not result in undue traffic congestion in the area.

The Board may impose appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In R6 or R7-1 Districts, in C1 or C2 Districts mapped within R6 or R7-1 Districts, or in C4-2 or C4-3 Districts, where the number of accessory off-street parking spaces required for additional dwelling units created by conversions of any kind exceeds the number of spaces which may be waived as of right under the provisions of Sections 25-262 (For conversions), 36-363 (For conversions in C1 or C2 Districts governed by surrounding Residence District bulk regulations) or 36-364 (For conversions in C4 Districts), the Board of Standards and Appeals may waive all or part of the required spaces, provided that the Board finds that there is neither a practical possibility of providing such spaces:

(a)        on the same zoning lot because of insufficient open space and the prohibitive cost of structural changes necessary to provide the required spaces within the building; nor

(b)        on a site located within 1,200 feet of the nearest boundary of the zoning lot because all sites within such radius are occupied by substantial improvements.

In C1 or C5 Districts, for a term not to exceed five years, the Board of Standards and Appeals may permit off-street parking spaces accessory to residences or non-profit hospital staff dwellings to be rented for periods of less than one week, to persons who are not occupants of such residences or non-profit hospital staff dwellings, provided that such rental of spaces conforms to the provisions set forth in Section 36-46 (Restrictions on Use of Accessory Off-street Parking Spaces) and that the following special findings are made:

(a)        that the number of spaces to be rented or the location of access, thereto, is such as to draw a minimum of vehicular traffic to and through streets having predominantly residential frontages;

(b)        that the total number of spaces to be rented to non-residents does not exceed 100; and

(c)        that where the total number of spaces to be rented to non-residents exceeds 20, reservoir space is provided at the vehicular entrance to accommodate 10 automobiles or 20 percent of the spaces so rented, whichever amount is less.

The Board may impose appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including limitations on signs or requirements for the shielding of floodlights.

This Section shall not apply to the Manhattan Core where the regulations set forth in Article I, Chapter 3, shall apply.

The Board of Standards and Appeals may permit accessory group parking facilities with more than 150 spaces in Commercial or Manufacturing Districts or for hospital and related facilities in Residence Districts in accordance with the provisions of this Section provided that such provisions shall not apply to accessory off-street parking spaces provided in public parking garages in accordance with the provisions of Section 36-57 or 44-46 (Accessory Off-street Parking Spaces in Public Parking Garages).

This Section shall not apply to the Manhattan Core where the regulations set forth in Article I, Chapter 3, shall apply.

The Board of Standards and Appeals may permit accessory group parking facilities with more than 150 spaces for hospitals and related facilities in all Residence Districts, provided that the following findings are made:

(a)        that such facility is so located as to draw a minimum of vehicular traffic to and through local streets in residential areas;

(b)        that such facility has adequate reservoir space at the vehicular entrance to accommodate either 10 automobiles or five percent of the total parking spaces provided by the facility, whichever amount is greater, but in no event shall such reservoir space be required for more than 20 automobiles; and

(c)        that the streets providing access to such use will be adequate to handle the traffic generated thereby.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including requirements for locations of entrances and exits or for shielding of floodlights.

The Board of Standards and Appeals may permit accessory group parking facilities with more than 150 spaces in Commercial or Manufacturing Districts, provided either that such facilities have separate entrances and exits on two or more streets or that the following findings are made:

(a)        that such facility, if accessory to a non-residential use, other than a non-profit hospital staff dwelling, has adequate reservoir space at the vehicular entrance to accommodate either 10 automobiles or five percent of the total parking spaces provided by the facility, whichever amount is greater, but in no event shall such reservoir space be required for more than 50 automobiles; and

(b)        that the streets providing access to such use will be adequate to handle the traffic generated thereby.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including limitations on signs or requirements for locations of entrances or for shielding of floodlights.

73-49

Roof Parking

In C2-1, C2-2, C2-3, C2-4, C4-1, C4-2, C4-3, C4-4, C7, C8-1, C8-2, C8-3, M1-1, M1-2, M1-3, M2-1, M2-2 or M3-1 Districts, the Board of Standards and Appeals may permit the parking or storage of motor vehicles on the roof of a public parking garage with a total of 150 spaces or less and, in all districts, the Board may permit modifications of the applicable provisions of Sections 25-11, 36-11 or 44-11 (General Provisions) so as to permit accessory off-street parking spaces to be located on the roof of a building. As a condition of permitting such roof parking, the Board shall find that the roof parking is so located as not to impair the essential character or the future use or development of adjacent areas.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area, including requirements for setback of roof parking areas from lot lines, or for shielding of floodlights.

In appropriate cases, for zoning lots with single frontage, the Board of Standards and Appeals may permit primary business entrances, show windows, or signs not otherwise permitted under the provisions of Section 32-51 or 42-44 (Limitations on Business Entrances, Show Windows or Signs), provided that in no case shall any such primary business entrance, show window or sign be permitted within 10 feet of a Residence District boundary.

In addition, in appropriate cases, the Board may waive the requirements for rear yards or side yards set forth in Sections 33-29 or 43-30 (SPECIAL PROVISIONS APPLYING ALONG DISTRICT BOUNDARIES) or the requirements for front yards as set forth in Section 34-233 (Special provisions applying along district boundaries).

It is further provided that, in appropriate cases, the Board may waive in whole or in part the front yard requirement set forth in Section 43-304 (Required front yards along district boundary located in a street) after finding that such waiver will not have an adverse effect on the surrounding area. The Board shall prescribe appropriate conditions and safeguards to preserve and enhance the character of the surrounding area, and to ensure the maintenance of resulting front yards.

In C1, C2, C3, C4, C5, C6 or C7 Districts, the Board of Standards and Appeals may permit public utility radio or television facilities which do not comply with the applicable provisions of Section 32-42 (Location Within Buildings) to be located on the top story or the roof of a building and may prescribe appropriate conditions and safeguards to minimize adverse effects on uses occupying lower stories or on the character of the surrounding area.

In addition, the Board may permit public utility antennas, microwave platforms and dishes or other radio or television equipment to penetrate the maximum height limit or the sky exposure plane set forth in Section 33-43 (Maximum Height of Walls and Required Setbacks) or 33-44 (Alternate Front Setbacks) provided that such equipment shall not exceed 20 feet in height.

Whenever a zoning lot existing in single ownership on December 15, 1961, or on the effective date of any applicable subsequent amendment to the zoning maps is divided by a boundary between two or more districts in which different uses are permitted, the Board of Standards and Appeals may permit a use which is a permitted use in the district in which more than 50 percent of the lot area of the zoning lot is located to extend not more than 25 feet into the remaining portion of the zoning lot, where such use is not a permitted use, provided that the following findings are made:

(a)        that, without any such extension, it would not be economically feasible to use or develop the remaining portion of the zoning lot for a permitted use; and

(b)        that such extension will not cause impairment of the essential character or the future use or development of the surrounding area.

Where such an extension of a use is permitted, the Board may permit the bulk, off-street parking and loading, and all other regulations of the district in which more than 50 percent of the lot area of the zoning lot is located, to apply for the distance, not exceeding 25 feet, that such use is permitted to extend into the remaining portion of the zoning lot.

Any portion of the zoning lot beyond such distance shall be subject to all the regulations of the district in which it is located, and shall not be counted as lot area for a building or other structure, or portion thereof, used for such extended use.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effect on the character of the surrounding area.

(a)        In all districts, the Board of Standards and Appeals may modify use and bulk regulations to permit the enlargement or extension of floor area of a conforming or non-conforming use listed in Section 15-60 (REFERENCED COMMERCIAL AND MANUFACTURING USES), provided that:

(1)        such use is not subject to termination pursuant to Section 52-70, et seq.;

(2)        the use for which such special permit is being sought has been lawfully located on the zoning lot on which the expansion is to occur, or a portion thereof, for five years or more;

(3)        the building in which such use is located has not previously been enlarged, pursuant to Sections 11-412, 43-121 or 72-21;

(4)        the use is not listed in Use Group 18; and

(5)        in a Residence District, such enlargement or extension shall be permitted in existing floor area or on a vacant portion of a zoning lot only when no lawful residential use has occupied such floor area or vacant portion of a zoning lot at any time during the five years prior to the date of application for such special permit.

(b)        Any enlargement or extension permitted pursuant to this Section shall be subject to the following requirements:

(1)        the permitted enlargement or extension may be the greater of:

(i)        45 percent of the floor area occupied by such use on December 17, 1987; or

(ii)        2,500 square feet additional to the floor area occupied by such use on December 17, 1987.

In no event shall the amount of enlargement or extension under paragraph (b)(i) of this Section exceed 10,000 square feet additional to the floor area occupied by such use on December 17, 1987;

(2)        unless the zoning lot is located within an M2 or M3 District, more than 300 feet from a Residence District boundary, any enlarged or extended portion, or activity generated by such enlargement or extension, including storage and processing, shall be in completely enclosed buildings;

(3)        in the case of a non-conforming use, such enlarged or extended use shall conform to all performance standards applicable in an M1 District located at the boundary with a Residence District; however, conforming uses shall conform to the applicable performance standards of the district in which they are located;

(4)        no open uses of any kind, including storage or processing, shall be permitted within 30 feet of a rear lot line that is located within a Residence District or within 30 feet of the rear lot line that coincides with a rear lot line of a zoning lot in a Residence District;

(5)        no enlargement or extension that exceeds 16 feet above curb level shall be permitted within 30 feet of the rear lot line that coincides with a rear lot line of a zoning lot in a Residence District;

(6)        no enlargement or extension that exceeds 16 feet above curb level shall be permitted within eight feet of the side lot line that coincides with a rear lot line of a zoning lot in a Residence District;

(7)        no open uses of any kind, including storage or processing, shall be permitted within eight feet of the side lot line that coincides with a rear lot line of a zoning lot in a Residence District;

(8)        no enlargement or extension, or open uses of any kind, including storage or processing, shall be permitted within eight feet of the lot line which coincides with a side lot line of a zoning lot in an R1, R2, R3, R4 or R5 District; and

(9)        no side yard shall be required in an R6, R7, R8, R9 or R10 District or in a Commercial or Manufacturing District; however, if such side yard is provided, it must be at least eight feet in width.

(c)        In granting such special permit, the Board shall find:

(1)        that such enlargement or extension will not generate significant increases in vehicular or pedestrian traffic nor cause congestion in the surrounding area;

(2)        that there will be adequate parking for any vehicles generated by such enlargement or extension;

(3)        that any required side yard shall be suitably landscaped or fenced as the Board shall prescribe;

(4)        that any accessory parking or loading generated by such enlargement or extension shall be suitably buffered from adjacent uses by methods that the Board shall prescribe; and

(5)        that the special permit, if granted, will not alter the essential character of the neighborhood or district in which the use is located, nor impair the future use or development of the surrounding area.

The Board may prescribe appropriate conditions and safeguards including, if appropriate, limitations on hours of parking and delivery, requirements for off-street loading, and location of curb cuts to minimize adverse effects of the enlargement, extension or existing uses on the character of the surrounding area, and to protect residential or commercial zoning lots#.

Subject to the general findings required by Section 73-03 and in accordance with the provisions contained in Sections 73-62 to 73-68 inclusive, the Board of Standards and Appeals shall have the power to permit modification of the bulk regulations of this Resolution, and shall have the power to impose appropriate conditions and safeguards thereon.

In the Special Midtown District, the powers of the Board to permit modification of the bulk regulations are made inapplicable in accordance with the provisions of Section 81-061 (Applicability of Chapter 3 of Article VII).

For a complying or non-complying building existing on December 15, 1961, or in R2X, R3, R4 or R5 Districts on June 30, 1989, and containing residential uses, the Board of Standards and Appeals may permit an enlargement, a change of use or (in the case of a mixed building) an extension, provided that such enlargement, change of use or extension shall not create any new non-compliance or increase the amount or degree of any existing non-compliance except as provided in this Section.

In the districts and for the buildings for which an open space ratio is required, the open space ratio permitted under this Section shall not be less than 90 percent of the open space ratio required under the applicable bulk regulations set forth in Article II or III of this Resolution. In the districts and for the buildings to which a maximum lot coverage applies, the maximum lot coverage permitted under this Section shall not exceed 110 percent of the maximum lot coverage permitted under the applicable bulk regulations set forth in Article II or III of this Resolution. In all districts, the floor area ratio permitted under this Section shall not exceed the floor area ratio permitted under such regulations by more than 10 percent. In R2X, R3 or R4 Districts, the additional floor area permitted pursuant to this Section may be computed using a base floor area ratio including the floor area permitted under a sloping roof with a structural headroom between five and eight feet when such space is provided in the building.

The Board of Standards and Appeals may permit an enlargement of an existing single- or two-family detached or semi-detached residence within the following areas:

(a)        Community Districts 11 and 15, in the Borough of Brooklyn;

(b)        R2 Districts within the area bounded by Avenue I, Nostrand Avenue, Kings Highway, Avenue O and Ocean Avenue, Community District 14, in the Borough of Brooklyn; and

(c)        within Community District 10 in the Borough of Brooklyn, after October 27, 2016, only the following applications, Board of Standards and Appeals Calendar numbers 2016-4218-BZ, 234-15-BZ and 2016-4163-BZ, may be granted a special permit pursuant to this Section. In addition, the provisions of Section 73-70 (LAPSE OF PERMIT) and paragraph (f) of Section 73-03 (General Findings Required for All Special Permit Uses and Modifications), shall not apply to such applications and such special permit shall automatically lapse and shall not be renewed if substantial construction, in compliance with the approved plans for which the special permit was granted, has not been completed within two years from the effective date of issuance of such special permit.

Such enlargement may create a new non-compliance, or increase the amount or degree of any existing non-compliance, with the applicable bulk regulations for lot coverage, open space, floor area, side yard, rear yard or perimeter wall height regulations, provided that:        

(1)        any enlargement within a side yard shall be limited to an enlargement within an existing non-complying side yard and such enlargement shall not result in a decrease in the existing minimum width of open area between the building that is being enlarged and the side lot line;

(2)        any enlargement that is located in a rear yard is not located within 20 feet of the rear lot line; and

(3)        any enlargement resulting in a non-complying perimeter wall height shall only be permitted in R2X, R3, R4, R4A and R4-1 Districts, and only where the enlarged building is adjacent to a single- or two-family detached or semi-detached residence with an existing non-complying perimeter wall facing the street. The increased height of the perimeter wall of the enlarged building shall be equal to or less than the height of the adjacent building's non-complying perimeter wall facing the street, measured at the lowest point before a setback or pitched roof begins. Above such height, the setback regulations of Section 23-631, paragraph (b), shall continue to apply.

The Board shall find that the enlarged building will not alter the essential character of the neighborhood or district in which the building is located, nor impair the future use or development of the surrounding area. The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

For developments or enlargements of Quality Housing buildings in which at least 50 percent of the dwelling units are income-restricted housing units, or at least 50 percent of its total floor area is a long-term care facility or philanthropic or non-profit institution with sleeping accommodation, the Board of Standards and Appeals may modify the underlying bulk regulations, other than floor area ratio, provided that in no event shall such building height or the number of stories therein exceed those set forth in paragraph (b) of Section 23-664 (Modified height and setback regulations for certain Inclusionary Housing buildings or affordable independent residences for seniors), and provided that the Board finds that:

(a)        there are physical conditions, including irregularity, narrowness or shallowness of lot size or shape, or topographical features that create practical difficulties in complying with the bulk regulations for Quality Housing buildings and would adversely affect the building configuration or site plan;

(b)        the practical difficulties of developing on the zoning lot have not been created by the owner or by a predecessor in title;

(c)        the proposed modifications will not unduly obstruct access of light and air to adjoining properties or streets;

(d)        the proposed scale and placement of the development or enlargement relates harmoniously with the surrounding area; and

(e)        the requested modification is the least amount necessary to relieve such practical difficulties.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

For a development, enlargement or conversion subject to the provisions of paragraph (d)(3), inclusive, of Section 23-154 (Inclusionary Housing), the Board of Standards and Appeals may, upon determining that a hardship that is specifically created by the requirements of such Section exists, modify the income levels specified for qualifying households, reduce the amount of affordable floor area required or reduce the amount of a payment into the affordable housing fund, provided the Board finds that:

 

(a)        the applicant has applied for any appropriate relief for which such development, enlargement or conversion is eligible for any financial hardship or practical difficulty not specifically created by the requirements of Section 23-154, paragraphs (d)(3)(i) through (d)(3)(v) and (d)(5);

(b)        such requirements for affordable housing or a contribution to an affordable housing fund create an unnecessary hardship, with no reasonable possibility that a development, enlargement or conversion on the zoning lot in strict compliance with the provisions of Section 23-154, paragraphs (d)(3)(i) through (d)(3)(v) and (d)(5), and Section 23-90 (INCLUSIONARY HOUSING), inclusive, will bring a reasonable return, and that a modification or reduction of these requirements is therefore necessary to enable the owner to realize a reasonable return from such zoning lot; and

(c)        the unnecessary hardship claimed as a basis for such modification or reduction has not been created by the owner or by a predecessor in title.

In determining whether a hardship exists, the Board shall consider whether alternative permitted uses, or alternative forms of housing tenure would bring a reasonable return from the zoning lot.

The Board may modify affordable housing requirements set forth in Section 23-154, paragraphs (d)(3)(i) through (d)(3)(iv) and (d)(5), to permit appropriate relief as follows.

First, the Board shall determine whether compliance with the requirements of Option 1, Option 2 or the Deep Affordability Option, as set forth in Section 23-154, paragraphs (d)(3)(i), (d)(3)(ii) and (d)(3)(iii), respectively, where not otherwise permitted, provides sufficient relief.

If the Board does not so find, the Board shall next determine whether compliance with the requirements of the Workforce Option, as set forth in Section 23-154, paragraph (d)(3)(iv), where not otherwise permitted, provides sufficient relief.

If the Board does not so find, the Board, in consultation with the Department of Housing Preservation and Development, shall determine a modification or reduction of the requirements of Section 23-154, paragraph (d)(3)(i) through (d)(3)(iv) and (d)(5), that represents the minimum necessary modification or reduction to afford relief.

In addition, the Board, in consultation with the Department of Housing Preservation and Development, may permit a modification or reduction of the requirements of Section 23-154, paragraph (d)(3)(v) that represents the minimum necessary modification or reduction to afford relief.

A copy of each application to the Board for a special permit under the provisions of this Section shall be provided by the applicant to the Department of Housing Preservation and Development concurrently with its submission to the Board.  Before the Board issues a final determination on any application made pursuant to this Section, HPD shall submit comment or appear before the Board regarding such application.

A special permit pursuant to this Section shall lapse after a term of four years, pursuant to Section 73-70 (LAPSE OF PERMIT). When considering an application for renewal of a special permit pursuant to paragraph (f) of Section 73-03 (General Findings Required for All Special Permit Uses and Modifications), the Board shall consult with HPD in determining whether the circumstances warranting the original grant of such permit still obtain, and may renew, modify, or deny the application for renewal, as appropriate.

The Board may prescribe such conditions and safeguards as it deems necessary to minimize adverse effects upon the surrounding area and the community at large.

For a complying or non-complying non-residential building existing on December 15, 1961, the Board of Standards and Appeals may permit an enlargement, provided that such enlargement shall not create any new non-compliance or increase the amount or degree of any existing non-compliance except as provided in this Section.

In all districts, the floor area ratio permitted under this Section shall not exceed the floor area ratio permitted under the applicable bulk regulations set forth in Article II, III or IV of this Resolution by more than 10 percent, or 10,000 square feet, whichever is less.

On a zoning lot occupied by any of the community facility uses specified in this Section, and in all districts where such uses are permitted as-of-right or by special permit, the Board of Standards and Appeals may permit developments or enlargements for such uses, which do not comply with certain applicable district bulk regulations, in accordance with the provisions of this Section.

Such specified community facility uses are:

College or school student dormitories or fraternity and sorority student houses

Colleges or universities, including professional schools, but excluding business colleges or trade schools

Community centers

Houses of worship, rectories, parish houses or seminaries

Libraries, museums or non-commercial art galleries

Monasteries, convents or novitiates

Non-profit hospital staff dwellings

Non-profit or voluntary hospitals and related facilities

Philanthropic or non-profit institutions with or without sleeping accommodations, excluding ambulatory diagnostic or treatment health care facilities listed in Use Group 4

Schools.

For any such new building or enlargement, subject to the required findings set forth in this Section, the Board of Standards and Appeals may permit modifications of the applicable regulations in Sections 24-38, 33-28 or 43-28 (Special Provisions for Through Lots), or in Sections 24-50 through 24-55, inclusive, paragraphs (b) through (d) of Section 24-56, Sections 33-40 through 33-45, inclusive, or Sections 43-41 through 43-45, inclusive, relating to Height and Setback Regulations, or in Sections 24-61 through 24-65, inclusive, Section 33-51, or Section 43-51, relating to Court Regulations and Minimum Distance between Windows and Walls or Lot Lines, provided that on December 15, 1961, the applicant owned the zoning lot or any portion thereof, and continuously occupied and used one or more buildings located thereon for a specified community facility use, from December 15, 1961, until the time of application. However, for Quality Housing buildings utilizing the height and setback regulations of Article II, Chapter 3, as required by Sections 24-50 and 33-40, the Board shall not permit modification to the provisions of Sections 23-67 through 23-69, inclusive.

As a condition of granting such modification, the Board shall find:

(a)        that such modification is required in order to enable such use to provide an essential service to the community;

(b)        that without such modification there is no way to design and construct the new buildings or enlargements in satisfactory physical relationships to the existing buildings which are to remain upon the site, so as to produce an integrated development; and

(c)        that such modification is the minimum modification necessary to permit the development of such integrated community facility, and thereby creates the least detriment to the character of the neighborhood and the use of nearby zoning lots.

In any district where such a specified community facility use is permitted, and on any zoning lot where one or more buildings occupied by such use exist on the date of application for the special permit, the Board of Standards and Appeals may permit development or enlargements which, only because of the continued existence of such buildings on a temporary basis, fail to comply with one or more of the applicable district bulk regulations, provided that the Board finds that continued use of the existing buildings is essential as a service to the community until the new construction makes it possible to replace the facilities contained therein.

The Board shall prescribe as a condition of such permit that such existing buildings will be removed within a stated period of time not to exceed two years after completion of the development or enlargement.

In any such development or enlargement consisting of a community center serving primarily the residents of the zoning lot, the Board of Standards and Appeals may permit the density regulations set forth in Sections 24-20 (APPLICABILITY OF DENSITY REGULATIONS TO ZONING LOTS CONTAINING BOTH RESIDENTIAL AND COMMUNITY FACUILITY USES) or 35-40 (APPLICABILITY OF DENSITY REGULATIONS) to be modified, provided that the total number of dwelling units permitted by these Sections and all other applicable bulk regulations set forth in Articles II and III of this Resolution shall not be increased by more than 10 percent.

The Board of Standards and Appeals may permit an enlargement which does not comply with the applicable district bulk regulations for any building or other structure existing on December 15, 1961, within which any one of the following public utilities is located:

Electric or gas utility substations

Telephone exchanges or other communications equipment structures

Water or sewage pumping stations;

provided that the following findings are made:

(a)        that the growth of the utility service demand in the area served by the building or other structure requires such enlargement to house the additional facilities needed to fulfill the demand;

(b)        that the network of lines, pipes or other distribution facilities located below the surface of the streets is so integrated with the operations carried on within such building that the provision of such additional facilities at another location would cause substantial duplication of plant and facilities and inconvenience to the public; and

(c)        that non-compliance, if any, with the applicable yard or height and setback regulations is the minimum made necessary by essential engineering requirements.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area and shall require that the certificate of occupancy shall be limited to such use.

The Board of Standards and Appeals may permit the construction, enlargement, or reconstruction of a building or other structure in excess of the height limits established under Sections 61-21 (Restriction on Highest Projection of Building or Structure) or 61-22 (Permitted Projection Within any Flight Obstruction Area), provided that the applicant submits a site plan, with elevations, showing the proposed building or other structure in relation to such maximum height limits, and that the Board finds that such proposed building or other structure, enlargement, or reconstruction would not constitute a hazard (either under the existing layout of the airport or under any planned reorientation or lengthening of the airport runways) to the safety of the occupants of such proposed building, to other buildings in the vicinity or to the safety of air passengers, and would not disrupt established airways.

The Board shall refer the application to the Federal Aviation Administration for a report as to whether such construction will constitute a danger to the safety of air passengers or disrupt established airways.

In C2-1, C2-2, C2-3, C2-4, C4-1, C4-2, C4-3, C4-4, C4-5D, C7, C8-1, C8-2, C8-3, M1-1, M1-2, M1-3, M2-1, M2-2 or M3-1 Districts, for public parking garages with a total of 150 spaces or less, the Board of Standards and Appeals may permit floor space on one or more stories to be exempted from the definition of floor area as set forth in Section 12-10 (DEFINITIONS), provided that all floor space so exempted is located not more than 23 feet above curb level and provided that the following findings are made:

(a)        that the additional floor space permitted is needed in order to prevent excessive on-street parking demand and relieve traffic congestion; and

(b)        that the hazards or disadvantages to the community at large resulting from the additional floor space permitted are outweighed by the advantages to be derived by the community therefrom under the conditions and safeguards imposed.

The Board may impose appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

In C5-5, C6-8 and C6-9 Districts, the Board of Standards and Appeals may permit modifications of the applicable regulations in Sections 33-26 to 33-30, inclusive, relating to Rear Yard Regulations, or in Sections 33-41 to 33-45, inclusive, relating to Height and Setback Regulations.

The Board may grant such modifications upon consideration that the applicable height and setback or rear yard regulations cannot be complied with by some method feasible for the applicant to pursue because of size or irregular shape of the lot, size or irregular shape of the block, and width of streets. The Board shall also consider the characteristics of surrounding development.

The Board shall require, where appropriate, sufficient safeguards to ensure the free flow of pedestrian and vehicular traffic in the general area. The Board may prescribe additional appropriate conditions and safeguards to enhance the character of the surrounding area.

The Board of Standards and Appeals may permit modifications to the rear yards required pursuant to Sections 23-543, 24-393, 33-303 or 43-313 (For zoning lots with multiple rear lot lines) for zoning lots existing on April 30, 2008, provided the following findings are made:

(a)        that due to the irregular shape of the zoning lot, compliance with the rear yard regulations would create site planning constraints and adversely affect the layout and development of the site; and

(b)        that the requested reduction in rear yard depth is the least amount necessary to grant relief.

The Board may prescribe appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.

A special permit for a specified use or for a modification of the use or bulk regulations granted under the provisions of this Resolution shall automatically lapse if substantial construction, in accordance with the plans for which such permit was granted, has not been completed within four years from the date of granting such permit by the Board of Standards and Appeals or, if judicial proceedings have been instituted to review the Board's decision, the four-year lapse period shall commence upon the date of entry of the final order in such proceedings, including appeals.

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