Non-Conforming and Non-Complying in NYC

In this blog post, I want to talk about something very important about the New York City Zoning Resolution that needs special attention from architects and engineers when they design and submit a project to DOB about the use of property, bulk, and floor area regulations.

In this post, you will become familiar with two common terms in architectural design: non-conforming and non-complying.
As you know, zoning resolutions in each city and state regulate the use and shape of buildings, and it is one of the city policies to control construction and real estate operations. In general, we have three major zoning areas in NYC: residential, commercial, and manufacturing, which determine the use of the area and what kind of building you can have. But NYC zoning is not simple like this, and you need to hire a knowledgeable architect to research the property background and find the exemptions or other sections like residential equivalents, community facility use, etc., with their supporting documents and zoning sections.

If you want to read more about the NYC Zoning Resolution, you can click here.

Non-Conforming Building:

Non-conforming use is the use of a space or building that is not allowed by the Zoning Resolution and its Use Group sections, like a commercial unit in a residential area. The reason it is considered legal use and able to continue the operation is because it is grandfathered and was there before the latest Zoning Resolution Revision in 1961 or any amendments after.
In this case, the non-conforming properties are able to continue working, but as soon as they decide to change the use or do major renovations, they will lose the grandfathered use and must follow the zoning and codes.

Non-Complying Building:

Non-compliance is a building that does not follow the zoning regulations, like bulk, which includes height and setback, floor area, yard distance, etc., but because it’s legal to save it as it is, as I mentioned for non-conforming use,

if you want to have a major renovation or enlargement in your building, you cannot raise the degree of non-compliance in this building.
One of the most common non-complying conditions for residential buildings in NYC is about their yards.
Especially rear yards, some of them have less than the required distance by the NYC Zoning, which means they can keep it, but they need to show the proof and supporting documents to the DOB plan examiners; otherwise, they will lose it and need to adjust based on the Zoning Regulation.
The other non-complying examples that are very common in the Manhattan area are bulk, setbacks, and floor area.
In these kinds of buildings, they are overbuilt, which means they have more surface space than the maximum allowable floor area. For instance, the FAR is 2.0 in that area, which gives you the maximum floor area of 5000 sq. ft., but in reality, the existing building’s total floor area is 5,500, which means 500 sq. ft. is overbuilt, or the height of the building is over the limit.

For example, the maximum height must be 120 feet, but your building has 10 feet more surface space than the maximum allowable floor area. For instance, the FAR is 2.0 in that area, which gives you the maximum floor area of 5000 sq. ft., but in reality, the existing building’s total floor area is 5,500, which means 500 sq. ft. is overbuilt or the height of the building is over the limit.

For example, the maximum height must be 120 feet, but your building has 10 feet more, or in some cases, they have habitable areas in places that you cannot have one per NYC Zoning Resolution, like Cellars.

If you want to read more about the difference between a cellar and a basement in NYC and why you cannot have a habitable area or any other facilities like 3 fixture bathrooms in them, you can click and go to the related blog post.

This blog post is just to give you a general idea about the terminology that is being used in the Department of Building and what initial things you need to be aware of when you try to start any alteration or construction. But NYC has one of the most complicated zoning and building code regulations in the United States, and you need to consult with a zoning expert regarding your project.

Source: NYC DOB