Non-Conforming Uses and Non-Complying Buildings (ZR Article V)

Older New York buildings often predate the rules around them, and Article V of the Zoning Resolution decides what they may keep, change and rebuild.

Two different problems

New York zoning separates use from bulk, and Article V does the same for buildings that predate today's rules. A non-conforming use is the wrong activity for the district: a lawful use that does not conform to one or more of the district's use regulations, on either permitted Use Groups or performance standards, either on December 15, 1961 or because of a later amendment (ZR 12-10). A non-complying building is the wrong shape: a lawful building that does not comply with one or more of the bulk regulations, again since 1961 or a later change (ZR 12-10). One building can be both, and each problem follows its own chapter: Article V, Chapter 2 for uses and Chapter 4 for buildings.

A use is not non-conforming just because it has fewer accessory parking spaces or loading berths than the rules now require (ZR 12-10).

Side by side

Non-conforming uses: the rules that bite

• Structural alterations are barred in a building substantially occupied by a non-conforming use, except to comply with law, to accommodate a conforming use, to meet performance standards, as part of a permitted enlargement, to improve energy performance (solar, energy storage, qualifying exterior wall thickness), or for signs under ZR 52-80 (ZR 52-22).
• Change of use: a non-conforming use can always change to a conforming use, and the district bulk and parking rules do not apply to that change or the alterations for it, only to an enlargement. Changing to another non-conforming use is allowed only as the chapter permits. A change in ownership or occupancy alone is not a change of use (ZR 52-31).
• Two-year discontinuance: if active operation of substantially all the non-conforming uses in a building stops for a continuous two years, it can afterwards be used only for a conforming use. Intent to resume does not matter (ZR 52-61).
• Exceptions to the two-year rule: war, strikes, materials rationing and authorized public improvement projects. Vacant ground-floor or basement stores in buildings designed for residential use in R1 to R12 can be reactivated with Use Group VI uses that a C1 select commercial overlay would allow, or with offices in Use Group VII. Transient hotels existing on December 9, 2021 in a residence district can be restored until December 9, 2027 (ZR 52-61).
• Damage: if a building substantially occupied by a non-conforming use is damaged or destroyed, including by demolition, to 50% or more of its total floor area, it may either be repaired or incidentally altered with the non-conforming use continued, or be reconstructed, but only for a conforming use and without creating or increasing a non-compliance. For non-conforming uses inside buildings designed for residential use in residence districts, the threshold is 25% (ZR 52-531, 52-54). The Board of Standards and Appeals can measure damage by reconstruction cost instead (ZR 52-532).
• Limited-life uses: some non-conforming uses, such as certain uses of land with minor improvements in residence districts, were given a set period and must end (ZR 52-71, 52-72).

Non-complying buildings: the rules that bite

• Enlargements and conversions are allowed only if they do not create a new non-compliance or increase the degree of an existing one, anywhere in the building (ZR 54-31). A building already over the district FAR cannot add floor area. A building over the height limit can still add floor area elsewhere if every rule it touches is met.
• Reconstruction: if damage or destruction, including demolition, reaches 75% or more of total floor area, the building can be rebuilt only to current bulk rules. One- and two-family homes are the exception: they can be rebuilt as long as the rebuild does not create or increase a non-compliance. Below 75%, any non-complying building can be rebuilt on the same terms (ZR 54-41).
• Demolition and replacement: removing more than 75% of the floor area and more than 25% of the perimeter walls, and replacing any of it, is treated as a development under ZR 11-23 (ZR 54-41).
• Cost instead of floor area: an owner can ask the Board of Standards and Appeals to measure damage by reconstruction cost, excluding land (ZR 54-42).

A worked example

A 1920s apartment building sits on a 2,000 sq ft lot in an R6B district and has 5,200 sq ft of floor area, an FAR of 2.60. R6B allows 2.00 FAR for standard residences (ZR 23-22), so the building is non-complying on floor area.

• It can stay as it is, and it can be repaired or altered (ZR 54-11, 54-21).
• It cannot add floor area, because that would increase the degree of non-compliance (ZR 54-31).
• If a fire destroys 60% of its floor area, it can be rebuilt to its old 5,200 sq ft, because the damage is under 75% (ZR 54-41).
• If the fire destroys 80%, it can be rebuilt only to current R6B bulk: 2,000 x 2.00 = 4,000 sq ft, losing 1,200 sq ft (ZR 54-41, 23-22). Qualifying affordable housing could use the 2.40 column instead (2,000 x 2.40 = 4,800 sq ft).

Before you buy

Ask for proof the use or bulk was lawful when established, check for gaps in operation that could have started the two-year clock, and remember that the damage thresholds include demolition you choose to do. Special purpose districts and flood zone rules can modify Article V (ZR 52-02 points to Article VI, Chapter 4 in the flood zone).

Article V FAQ

Related pages

• Zoning floor area
• Community facility FAR
• R6B zoning
• R5 zoning
• What City of Yes changed