New Garage Rules Legalize De Facto Public Garages

On May 8, 2013, New York’s City Council substantially amended the City’s Zoning Resolution to reflect modern realities of off-street parking Manhattan.  The changes were based on the findings of the Department of City Planning (DCP) in a comprehensive study began in 2009.  Among the many changes, none are more significant or controversial than the new policies governing off-street parking as-of-right, or accessory parking.

Prior to 1982, new residential developments were required to provide a minimum number of accessory parking spaces, proportionate to the number of units to be built.  Amendments made in 1982 revised these requirements in three significant areas. Accessory parking was no longer required of new developments.  However, should parking be provided, the number of spaces created could not exceed a certain percentage of the number of residential units.  In addition, these spaces were to be expressly reserved for residents of the development for which the accessory parking was created.

The 2009 study showed that many new accessory parking facilities were open to the public in technical violation of the 1982 amendments.  Inconsistency between that legislation and Department of Consumer Affairs (DCA) licensing requirements for public parking garages created a loophole by which accessory parking facilities designed for nearby residential developments instead serviced the parking needs of the neighborhood at large.  DCP concluded that this ‘de facto situation’ had effectively severed any distinction between accessory and public parking.  The new legislation permits accessory parking facilities to operate for public use, provided that “any such space shall be made available to the occupant of a residence to which it is accessory within 30 days after written request therefor is made to the landlord.”  (Zoning Resolution §13-21).  Those parking facilities which have already obtained a DCA license to operate as a public garage must file it with the Department of Buildings to retain this privilege. (Zoning Resolution §13-07 (d)).

According to publicly available information, community reaction to the changes in accessory parking regulations has been mixed.  Several affected Community Boards (3, 5, 6, and 8) have supported this legislation as a means of reducing traffic congestion through a more flexible allocation of accessory parking spaces to Manhattan residents and visitors alike.  However, the Boards on the west side (1, 2, 4, and 7) have expressed opposition to allowing accessory facilities to operate for public use, stating that such a change will negatively impact local residents and increase congestion by attracting more commuters.

Eric McMahon, a law student intern with Olshan, assisted in the research and writing of this post.

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