White Paper

As-Of-Right Development

 
Where the zoning ordinance specifically permits a proposed use and development of land without the imposition of special conditions or the necessity of discretionary approval from a local zoning board or commission, the proposed activity is denominated "as-of-right” development. A proposed use or improvement of land that conforms with the municipality’s zoning use and bulk requirements, as well as other applicable codes, rules and regulations, will qualify for a permit to build. The approval of an as-of-right development is deemed to be a “ministerial” act on the part of a local zoning or building official in that there is no personal discretion involved and only the the strict following of the applicable ordinance provisions.

“A mainstay of New York City’s policy for zoning unimproved land is as-of-right development….What is contemplated by this policy is that, so long as the proposed use is one of the ‘Uses Permitted As of Right’ in the City's Zoning Resolution, a developer who also satisfies the Building Code can simply file its architectural plans with the Department of Buildings and begin construction upon
issuance of a building permit….The advantage of as-of right development is predictability: development can proceed ‘in accordance with pre-set regulation rather than with case-by-case exercise of discretion by officials.’” Neville v. Koch, 79 N.Y.2d 416, 426 (1992).

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Faculty

Ron Mandel

Davidoff Hutcher & Citron LLP