NYC 2030: Fried Frank’s Carol Rosenthal on cannabis, noise, zoning bonuses

By Adam Pincus

The city’s limited land mass is constantly under mechanical pressure from the structures built upon it that stress its geology and geography and the people who inhabit New York City. The stresses are expected to only increase as more people and uses arrive.

PincusCo is interviewing real estate professionals to ask them to provide a vision for what the city will look like in ten years and how it can manage. Zoning is one of the elements of development that is the most far reaching into the future, as it intends to set the rules for what might be built in the next years or decades.

With the rapidly changing styles of living, retail uses and technology, zoning will need to adapt as well, or otherwise cap potential.

Carol Rosenthal is a partner in Fried Frank’s Real Estate Department, where she focuses on land use, zoning and development and serves as counsel to developers, businesses and nonprofit institutions.

Rosenthal has first-hand experience at the city’s Department of City Planning, where she was former associate counsel, then known as the Department of Planning, from 1986 to 1988.

Some of Rosenthal’s major projects include rezonings, text amendments and special permits for the Durst Organization’s VIA 57 West at 625 West 57th Street, was counsel to Alloy Development for rezonings for a 1.03 million square foot development in Downtown Brooklyn, and counsel to TF Cornerstone for a rezoning to facilitate the development of a 1,200-unit rental complex in Manhattan.

The interview was edited for clarity and additional information was provided by email.

What are some new uses that are challenging current occupancy regulations?

One question coming up now is the use category for cannabis stores. Are they drug stores or cigar and tobacco stores or something else?

We are also seeing uses that had historically been distinct and separate uses become “mixed” into something new. An example is places that exhibit in the manner of a museum, but also provide an immersive experience, reminiscent in some ways of an amusement hall. So, concepts that were in separate categories, like commercial Coney Island and the not-for-profit Metropolitan Museum, are now being mixed in interesting ways, and the zoning doesn’t always have an easy fit.

Do you see the city preparing for new occupancy types?

it’s been coming up on a case by case, as-needed basis. For example, life-sciences (including biotech) uses and where they could locate become a pressing issue about ten years ago and so DOB, the City Planning Department and the City’s Economic Development Corporation had their people come together and say: ‘Here’s the parameters for how this new can be classified with existing rules. and where it can locate.” So, it’s been a little bit proactive but also a little bit reactive. You have the uses first, and then you think about where it makes sense to have them, and that facilitates more of the uses.

What’s another way zoning can manage these new occupancy types?

Because we are seeing more and more mixed manufacturing, arts, and residential uses, one could take a new look at performance-based zoning. The zoning resolution has performance standards in manufacturing districts for noise, emissions, vibrations, and other nuisances dating back to 1961, before there were the kind of environmental laws we have now. Those standards are still in the zoning resolution but rarely used. [However], we have become much more sophisticated about how to measure certain impacts and have more sophisticated tools to do that. We could start thinking about whether we have the tools to determine what is an appropriate mixed use, with requirements around operation, rather than trying to guess by coming up with a list of specific, fixed uses in a constantly evolving situation.

What about zoning bonuses for development?

Bonuses are becoming more prevalent. Zoning bonuses began as an incentive for development to provide open space, then were used for preserving theaters, providing recreational space in buildings. creating more affordable housing, encouraging ground floor arts spaces and most recently, with the Zoning for Accessibility (passed last month ), for having the private sector fit out subway station accessibility and other needs. Thus, there is a trend over the years toward using bonuses for incentivizing more public goods. With COVID highlighting the health benefits of open space, you could see an almost circling back to open space and plazas. And green space could be rewarded again. This time the open space could also play a role for people within the building or jump start stronger resiliency measures or carbon reducing features in some areas.

What’s an example of a commercial change that may come the outer boroughs?

I have been seeing more warehouse and delivery facilities, and more media production space, but also on a smaller scale, mixed retail/entertainment/food, and shared space of all kinds. I do wonder if there will be areas full of garages where people will have to stop, so they can get into the denser parts of the city without their cars due to congestion pricing, or just congestion.