2006 New York Code - Request For Certificate Of Appropriateness Authorizing Demolition, Alterations Or Reconstruction On Ground Of Insufficient Return.

 
    §  25-309  Request  for  certificate  of  appropriateness  authorizing
  demolition, alterations or  reconstruction  on  ground  of  insufficient
  return.  a.  (1)  Except  as otherwise provided in paragraph two of this
  subdivision a, in any case where an application for a permit to demolish
  any improvement located on a landmark site or in an historic district or
  containing an interior landmark is filed with the  commission,  together
  with  a  request  for  a certificate of appropriateness authorizing such
  demolition, and in any case where an application for a  permit  to  make
  alterations  to  or  reconstruct  any  improvement on a landmark site or
  containing an interior landmark is filed with the  commission,  and  the
  applicant  requests  a certificate of appropriateness for such work, and
  the applicant establishes to the satisfaction of the commission that:
    (a)  the  improvement  parcel  (or  parcels)   which   includes   such
  improvement,  as  existing at the time of the filing of such request, is
  not capable of earning a reasonable return; and
    (b) the owner of such improvement:
    (1) in the case of an application for a permit to demolish,  seeks  in
  good  faith to demolish such improvement immediately (a) for the purpose
  of constructing on the site thereof with  reasonable  promptness  a  new
  building  or  other income-producing facility, or (b) for the purpose of
  terminating the operation of the improvement at a loss; or
    (2) in the case of an application for a permit to make alterations  or
  reconstruct,   seeks   in  good  faith  to  alter  or  reconstruct  such
  improvement, with reasonable promptness, for the purpose  of  increasing
  the return therefrom;
    the commission, if it determines that the request for such certificate
  should  be  denied on the basis of the applicable standards set forth in
  section 25-307 of this chapter, shall,  within  ninety  days  after  the
  filing  of  the  request for such certificate of appropriateness, make a
  preliminary determination of insufficient return.
    (2) In any case where any application and request for a certificate of
  appropriateness mentioned in paragraph one  of  this  subdivision  a  is
  filed with the commission with respect to an improvement, the provisions
  of  this  section  shall  not  apply  to such request if the improvement
  parcel which includes such improvement has  received,  for  three  years
  next  preceding  the  filing  of  such  request, and at the time of such
  filing continues to receive, under any provision of law (other than this
  chapter or section four hundred fifty-eight, four hundred sixty or  four
  hundred  seventy-nine  of the real property tax law), exemption in whole
  or in part from real property  taxation;  provided,  however,  that  the
  provisions  of  this section shall nevertheless apply to such request if
  such exemption is and has been received pursuant to section four hundred
  twenty-a,  four  hundred  twenty-two,  four  hundred  twenty-four,  four
  hundred twenty-five, four hundred twenty-six, four hundred twenty-seven,
  four hundred twenty-eight, four hundred thirty, four hundred thirty-two,
  four   hundred   thirty-four,  four  hundred  thirty-six,  four  hundred
  thirty-eight, four hundred forty, four hundred forty-two,  four  hundred
  forty-four,  four  hundred  fifty,  four hundred fifty-two, four hundred
  sixty-two, four  hundred  sixty-four,  four  hundred  sixty-eight,  four
  hundred  seventy,  four hundred seventy-two or four hundred seventy-four
  of the real property tax  law  and  the  applicant  establishes  to  the
  satisfaction of the commission, in lieu of the requirements set forth in
  paragraph one of this subdivision a, that:
    (a)  The  owner  of  such  improvement  has  entered  into a bona-fide
  agreement to sell an estate of freehold or to grant a term of  at  least
  twenty  years  in such improvement parcel, which agreement is subject to
  or contingent upon the issuance of the certificate of appropriateness or
  a notice to proceed;


    (b)  The  improvement  parcel  which  includes  such  improvement,  as
  existing  at  the  time  of the filing of such request, would not, if it
  were not exempt in whole or in part  from  real  property  taxation,  be
  capable of earning a reasonable return;
    (c)   Such   improvement  has  ceased  to  be  adequate,  suitable  or
  appropriate for use for carrying out both (1) the purposes of such owner
  to which it is devoted and (2) those  purposes  to  which  it  had  been
  devoted when acquired unless such owner is no longer engaged in pursuing
  such purposes; and
    (d) The prospective purchaser or tenant:
    (1)  In  the case of an application for a permit to demolish seeks and
  intends, in good faith either to demolish such  improvement  immediately
  for  the  purpose  of  constructing  on the site thereof with reasonable
  promptness a new building or other facility; or
    (2) In the case of an application for a permit to make alterations  or
  reconstruct,  seeks  and  intends  in good faith to alter or reconstruct
  such improvement, with reasonable promptness.
    b. In the case of an application made pursuant  to  paragraph  one  of
  subdivision  a of this section by an applicant not required to establish
  the conditions specified  in  paragraph  two  of  such  subdivision,  as
  promptly  as  is practicable after making a preliminary determination as
  provided in paragraph one of such subdivision a,  the  commission,  with
  the aid of such experts as it deems necessary, shall endeavor to devise,
  in  consultation  with the applicant, a plan whereby the improvement may
  be (1) preserved or perpetuated in such manner or form as to  effectuate
  the purposes of this chapter, and (2) also rendered capable of earning a
  reasonable return.
    c.  Any  such  plan  may  include,  but  shall  not be limited to, (1)
  granting of partial or complete tax exemption, (2)  remission  of  taxes
  and  (3)  authorization  for alterations, construction or reconstruction
  appropriate for and  not  inconsistent  with  the  effectuation  of  the
  purposes of this chapter.
    d. In any case where the commission formulates any such plan, it shall
  mail  a  copy  thereof to the applicant promptly and in any event within
  sixty days after giving  notice  of  its  preliminary  determination  of
  insufficient  return.  The  commission  shall hold a public hearing upon
  such plan.
    e. (1) If the commission, after holding a public hearing  pursuant  to
  subdivision  d  of  this  section,  determines  that a plan which it has
  formulated, consisting only of tax exemption and/or remission of  taxes,
  meets  the standards set forth in subdivision b of this section, as such
  plan was originally  formulated,  or  with  such  modifications  as  the
  commission deems necessary or appropriate, the commission shall deny the
  request  of the applicant for a certificate of appropriateness and shall
  approve such plan, as originally formulated, or with such modifications.
    (2) Such plan, as so approved, shall  set  forth  the  extent  of  tax
  exemption  and/or  remission of taxes deemed necessary by the commission
  to meet such standards.
    (3) The commission shall  promptly  mail  a  certified  copy  of  such
  approved  plan  to the applicant and shall promptly transmit a certified
  copy thereof to the tax commission. Upon application made by  the  owner
  of such improvement pursuant to the provisions of paragraph five of this
  subdivision  e, the tax commission shall grant, for the fiscal year next
  succeeding the date of approval of such plan, the tax  exemption  and/or
  remission of taxes provided for therein.
    (4) In accordance with procedures prescribed by the regulations of the
  commission,  it  shall  determine, upon application by the owner of such
  improvement made in advance of each succeeding fiscal year,  the  amount


  of  tax  exemption  and/or  remission  of  taxes, if any, which it deems
  necessary, as a renewal of such plan for the ensuing year, to  meet  the
  standards set forth in subdivision b of this section, and shall promptly
  mail  a  certified  copy  of  any  approved  renewal of such plan to the
  applicant and shall promptly transmit a certified copy of  such  renewal
  to  the  tax  commission.  Upon  application  made  by the owner of such
  improvement pursuant  to  the  provisions  of  paragraph  five  of  this
  subdivision e, the tax commission shall grant, for such fiscal year, the
  tax exemption and/or remission of taxes specified in such determination.
    (5)  Where  any  such  plan  or  a  renewal thereof is approved by the
  commission, pursuant to the provisions of the  preceding  paragraphs  of
  this  subdivision  e,  prior  to January first next preceding the fiscal
  year to which the tax benefits of  such  plan  or  renewal  thereof  are
  applicable,  the  owner  shall not be entitled to such benefits for such
  fiscal year unless he or she files an application therefor with the  tax
  commission  between  February  first  and  March  fifteenth,  both dates
  inclusive, next preceding such fiscal year. Where any  such  plan  or  a
  renewal  thereof is approved by the commission between January first and
  June thirtieth, both dates inclusive, next preceding the fiscal year  to
  which  the  tax benefits of such plan or renewal thereof are applicable,
  the owner shall not be entitled to such benefits for  such  fiscal  year
  unless  he  or she files an application therefor with the tax commission
  on or before August first of such fiscal year.
    f. (1) In any case where the commission determines,  after  holding  a
  public  hearing  pursuant  to subdivision d of this section, that a plan
  which it has formulated, consisting in whole or in part of any  proposal
  other  than tax exemption and/or remission of taxes, meets the standards
  set forth in subdivision b of this section, as such plan was  originally
  formulated, or with such modifications as the commission deems necessary
  or  appropriate,  the  commission shall approve such plan, as originally
  formulated, or with such modifications, and shall promptly mail  a  copy
  of same to the applicant.
    (2) The owner of the improvement proposed to be benefited by such plan
  mentioned  in  paragraph  one of this subdivision f may accept or reject
  such plan by written acceptance or rejection filed with the  commission.
  If such an acceptance is filed, the commission shall deny the request of
  such   applicant   for  a  certificate  of  appropriateness.  If  a  new
  application for a permit from the department  of  buildings  and  a  new
  request   for   a   certificate  of  appropriateness  are  filed,  which
  application and request conform with such proposed plan, the  commission
  shall  grant  such  certificate as promptly as is practicable and in any
  event within thirty days after such filing.
    (3) If such accepted plan consists in part  of  tax  exemption  and/or
  remission  of  taxes,  the provisions of paragraphs two, three, four and
  five of subdivision e of this section shall govern the granting of  such
  tax exemption and/or remission of taxes.
    g.  (1)  Except in a case where the applicant is required to establish
  the conditions set forth in paragraph  two  of  subdivision  a  of  this
  section, if
    (a)  The commission does not formulate and mail a plan pursuant to the
  provisions of subdivisions b, c, and d of this section within the period
  of time prescribed by such subdivision d; or
    (b) The commission does not approve a plan pursuant to the  provisions
  of  subdivision  e  or  f  of  this  section within sixty days after the
  mailing of such plan to the applicant; or
    (c) A plan approved by the commission pursuant to  the  provisions  of
  paragraph  one of subdivision f of this section is rejected by the owner


  of such improvement pursuant to the provisions of paragraph two of  such
  subdivision;
    the commission may, within ten days after expiration of the applicable
  period  referred  to in subparagraphs (a) and (b) of this paragraph one,
  or within ten days after the filing of a rejection of a plan pursuant to
  paragraph two of subdivision f of this section,  as  the  case  may  be,
  transmit  to  the mayor a written recommendation that the city acquire a
  specified appropriate protective  interest  in  the  improvement  parcel
  which  includes  the improvement with respect to which the request for a
  certificate of appropriateness was filed, and shall promptly notify  the
  applicant of such action.
    (2)  If, within ninety days after transmission of such recommendation,
  or, if no such recommendation is transmitted, within ninety  days  after
  the  expiration  of  the period herein prescribed for such transmission,
  the city does not:
    (a) Give notice, pursuant to section three hundred eighty-two  of  the
  charter,  of  an  application  to  condemn  such  interest  or any other
  appropriate protective  interest  agreed  upon  by  the  mayor  and  the
  commission; or
    (b) Enter into a contract with the owner of such improvement parcel to
  acquire such interest, as so recommended or agreed upon;
    the  commission  shall promptly grant, issue and forward to the owner,
  in  lieu  of  the  certificate  of  appropriateness  requested  by   the
  applicant, a notice to proceed.
    h.  No  plan  which  consists in whole or in part of the granting of a
  partial or complete tax exemption or remission of taxes pursuant to  the
  provisions  of this chapter shall be deemed to have been approved by the
  commission unless it is also approved by the mayor  and  council  within
  the  period of time prescribed by this section for approval of such plan
  by the commission.
    i. (1) In any case where the applicant is required  to  establish  the
  conditions  set forth in paragraph two of subdivision a of this section,
  as promptly as is practicable after making a  preliminary  determination
  with  respect  to  such  conditions,  as  provided  in  paragraph one of
  subdivision a of this section, and within one hundred  and  eighty  days
  after  making  such  preliminary determination, the commission, alone or
  with the aid of such persons and agencies  as  it  deems  necessary  and
  whose  aid it is able to enlist, shall endeavor to obtain a purchaser or
  tenant (as the case may be) of the improvement parcel  or  parcels  with
  respect  to  which  the  application  has  been made, which purchaser or
  tenant will agree, without condition  or  contingency  relating  to  the
  issuance  of  a  certificate of appropriateness or notice to proceed and
  subject to the provisions of paragraph three of this subdivision  i,  to
  purchase  or  acquire  an  interest  identical  with that proposed to be
  acquired by the prospective purchaser or tenant whose agreement  is  the
  basis of the application, on reasonably equivalent terms and conditions.
    (2)  The applicant shall, within a reasonable time after notice by the
  commission that it has obtained such a purchaser or tenant, which notice
  shall be served within  the  period  of  one  hundred  and  eighty  days
  provided  by  paragraph  one  of  this  subdivision  i,  enter into such
  agreement to sell or lease (as the case may be) with  the  purchaser  or
  tenant  so  obtained. Such notice shall specify a date for the execution
  of such agreement, which may be  postponed  by  the  commission  at  the
  request of the applicant.
    (3)  The  provisions of this section shall not, after the consummation
  of such agreement, apply to such purchaser or tenant or  to  the  heirs,
  successors or assigns of such purchaser or tenant.


    (4)  (a)  If,  within  the one hundred eighty day period following the
  commission's preliminary determination  pursuant  to  paragraph  one  of
  subdivision  a  of this section, the commission shall not have succeeded
  in obtaining a purchaser or tenant of the improvement  parcel,  pursuant
  to  paragraph  one  of this subdivision i, or if, having obtained such a
  purchaser or tenant, such purchaser or  tenant  fails  within  the  time
  provided  in  paragraph  two  of  this  subdivision i, to enter into the
  agreement provided for by such paragraph  two,  the  commission,  within
  twenty  days  after  the expiration of the one hundred eighty day period
  provided for in paragraph one of this subdivision i,  or  within  twenty
  days  after  the  date  upon which a purchaser or tenant obtained by the
  commission pursuant to the provisions of such  paragraph  one  fails  to
  enter  into  the  agreement provided for by said paragraph, whichever of
  said  dates  later  occurs,  may  transmit  to  the  mayor   a   written
  recommendation  that the city acquire a specified appropriate protective
  interest  in  the  improvement  parcel  or  parcels  which  include  the
  improvement  or  are part of the landmark site with respect to which the
  request for a  certificate  of  appropriateness  was  filed,  and  shall
  promptly notify the applicant of such action.
    (b)  If, within ninety days after transmission of such recommendation,
  or, if no such recommendation is transmitted, within ninety  days  after
  the  expiration  of  the period herein prescribed for such transmission,
  the city does  not  give  notice,  pursuant  to  section  three  hundred
  eighty-two of the charter, of an application to condemn such interest or
  any  other  appropriate protective interest agreed upon by the mayor and
  the commission, or does not enter into a contract with the owner of such
  improvement parcel to acquire  such  interest,  as  so  recommended  and
  agreed  upon;  the commission shall promptly grant, issue and forward to
  the owner, in lieu of the certificate of  appropriateness  requested  by
  the applicant, a notice to proceed.
    (5)  Such  notice  to  proceed shall authorize the work of demolition,
  alteration, and/or reconstruction sought with respect to the improvement
  parcel or parcels concerning which the application  was  made,  only  if
  such  work  (a)  is  undertaken and performed by the purchaser or tenant
  specified pursuant to the provisions of paragraph two of  subdivision  a
  of this section, in the application, or a bona-fide assignee, successor,
  lessee  or  sub-lessee of such purchaser or tenant (other than the owner
  who made application therefor), and (b) is undertaken and performed with
  reasonable promptness after the issuance of such notice to proceed.