The Avengers: Arc Reactors and NYC Zoning Laws

For today’s post I’m going to talk about a serious legal issue raised by The Avengers, the issue everyone has been talking about since the movie debuted.  Although it was only hinted at in the movie, I know I can’t wait to see it addressed more fully in Iron Man 3 or even The Avengers 2.  That’s right, I’m talking about how Pepper Potts is going to handle the zoning permits for the buildings powered by arc reactors.

Okay, I may have exaggerated the significance of the issue a wee bit, but it’s still an interesting question.  In fact, Stark Tower raises a host of land use law questions, and the arc reactor is just one of them.  For simplicity, we’re going to assume that Stark Tower was constructed recently (rather than a rehab of a prior building) and had to comply with modern land use laws.

I. Stark Tower’s Zoning District

As it happens, we know exactly where Stark Tower is meant to be located within New York: it’s built on the site of the MetLife building at 200 Park Ave.

(Update: Early on some sources indicated that it was built on the site of the MetLife building and now others indicate that Stark built the tower on top of the preexisting building.  This doesn’t change the analysis.  Whatever the zoning status of the MetLife building, the construction of Stark Tower was likely a “structural alteration” of the building that would disallow a grandfathered nonconforming use. It certainly exceeded the kind of “repair or incidental alteration” that would preserve the nonconforming use.)

Here’s a zoning map of the area.  As you can see, it’s in a C5-3 commercial district in the Special Midtown District, which means Stark Tower has a maximum Floor Area Ratio of 18 (3 of that comes from the special district).  Basically this means that if the building takes up its entire lot then it can only have 18 full-size floors (or the equivalent).  There are various ways to increase the FAR, such as having a public plaza on the lot.  The sloped, tapering structure of Stark Tower means that it can have more floors without exceeding its FAR because the upper floors are much smaller than the lower ones.  Given the size of the 200 Park Ave lot, it’s believable that Stark Tower could be that tall, given its shape and the various means of increasing the FAR.

Stark mentions that the top ten floors (excluding his personal penthouse, presumably) are “all R&D.”  Is that allowed in a C5-3?

Apart from residential uses, the permitted commercial uses in a C5 are use groups 5 (hotels), 6, 9 and 10 (retail shops and business services) and 11 (custom manufacturing).  Unfortunately, research and development is not allowed as a permitted or conditional use in this district.  In fact, scientific research and development is specifically allowed in a C6 as a conditional use, which requires a special permit and approval from the City Planning Commission.

So Stark needs some kind of special dispensation.  How can he get it?  There are many possible ways.

II. Getting Around Zoning Laws

He could argue that the zoning regulation is unconstitutional, improperly enacted, or unauthorized by the City’s charter, or he could lobby for an amendment to the regulation.  I don’t know of any reason the regulation in question would be unconstitutional or otherwise invalid, so we won’t go into any more detail there.  If New York is anything like cities that I’m more familiar with, the most likely approach is an amendment to the zoning regulations.

A. Rezoning

Rather than seek a blanket change to the C5-3 district, Stark could propose a zoning amendment to change 200 Park Ave to C6.  Zoning amendments are subject to the Uniform Land Use Review Procedure.  As described by the Department of City Planning, “The ULURP is the public review process, mandated by the City Charter, for all pro­posed zoning map amendments … . ULURP sets forth a time frame and other requirements for public participation at the Community Board, Borough Board and Borough President levels, and for the public hearings and determinations of the Community Boards, Borough Presidents, City Planning Commission (CPC) and City Council.”

So getting a zoning amendment through will require the cooperation of at least five different government entities, plus the public.  Luckily, changing from a C5 to a C6 isn’t too dramatic a shift.  It’s not like Stark wants to build a chemical plant  in the middle of Manhattan.

B. Variance

Another alternative is to seek a variance.  ”A variance is an authorization for a landowner to engage in construction or maintenance of a building or structure, or to establish and maintain a use of the land which is  prohibited by a zoning ordinance. It is a right granted by a zoning board of appeals pursuant to power vested in such an administrative body by statute or ordinance, and provides a form of administrative relief from the strict application of zoning regulations.”  Patricia E. Salkin, 2 N.Y. Zoning Law & Prac. § 29:1.  In particular, Stark would be seeking a use variance, since he wants to use the land in a way prohibited by the zoning ordinance.

In New York City, the zoning board of appeals is the New York Board of Standards and Appeals.  The test for use variances is defined by statute in N.Y. General City Law § 81-b:

In order to prove such unnecessary hardship the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located:
(i) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
(ii) the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
(iii) the requested use variance, if granted, will not alter the essential character of the neighborhood; and
(iv) the alleged hardship has not been self-created.

This is kind of a tall order, especially the first two requirements.  Stark would have to show that none of the permitted uses of the property would allow him to realize a reasonable return and that for some reason only this particular location is problematic in that way.  It’s pretty hard to buy the idea that Stark couldn’t make decent money off of an office tower in Midtown Manhattan unless he can put ten floors of R&D on it.  But I suppose clever attorneys and experts could craft an argument for it.  Further, Stark would need to show that the whatever unique hardship he is relying on as justifying the variance is not shared by a significant amount of the surrounding properties.

And what if the BSA says no?  Well, then Stark could take the issue to court.  ”Actions of the zoning board of appeals are subject to review by the courts, to determine whether the board acted within the limits of its jurisdiction, whether the standards imposed by statute and ordinance were respected, whether the procedural rights of the litigants were observed, and whether the board was chargeable with any abuse of its discretion.”  2 N.Y. Zoning Law & Prac. § 28:30.

A court will not lightly disturb a board’s decision not to grant a variance, however.  ”Since the zoning board is given discretion in these matters, the court’s function is limited, and a board determination may not be set aside in the absence of illegality, arbitrariness or abuse of discretion. The board’s determination will be sustained if it has a rational basis and is supported by substantial evidence.” Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598, 608 (1978).  This kind of deference is common with administrative agencies.  After all, what’s the point of an expert agency if a court can easily overturn its decisions?

III. So About Those Arc Reactors

So far I’ve been talking about the research & development floors.  But what about  the arc reactors?  Well, that’s tricky because it’s not clear just where the reactor is located.  Is the reactor in the building or is it part of the device Stark attaches to the undersea cable?  If the reactor isn’t in the building then that solves quite a few zoning issues.  If it’s not, well….it’s complicated.

Electric power plants aren’t allowed in any kind of commercial district.  Instead, they’re allowed in certain manufacturing districts, New York’s version of industrial zones.  However, just this month the City has adopted new regulations making it much easier for building owners to install solar and wind power generation equipment and even to provide power to adjacent buildings, so long as utility company requirements and other regulations are complied with.  In a world where the arc reactor exists and has been proven safe, it’s entirely believable that the City would allow on-site power generation by arc reactors though it would likely require a text amendment to the current ordinances.

IV. Conclusion

The arc reactors and Stark Tower pose some interesting land use questions, but it’s nothing that couldn’t be resolved with straightforward rezoning or a variance.  Honestly, getting FAA approval for his suit would be a much bigger headache.  So while Pepper Potts may indeed have to do some work to get the next few buildings approved, it’s not far-fetched from a legal perspective.

26 Responses to The Avengers: Arc Reactors and NYC Zoning Laws

  1. I’d thought from the first scene we see Iron Man in THE AVENGERS, it was established that the arc reactor was set up on the feeder cable under water a few miles south of the Verrazano Narrows, which would put it outside of the city jurisdiction in an area where the line between New York and New Jersey is still being fought over. Considering how much power the unit in his chest gives Tony, it’s easy to assume that a unit the size of his thigh could power the building and maybe for a few hours Grand Central Station beneath it.

    As for how to get around the zoning restrictions, his easiest path might be to seek rezoning, with assistance coming from this argument: That as the under-area of the property from whom he would have purchased air rights (the way Pan Am Airlines had to when they built the real-life 200 Park Avenue) being a utility (Metro North) which provides an essential service and that, as a fellow service provider (the man who “privatized this country’s defense” as he claims in IRON MAN II) his presence is also useful and essential, that having two services available at the same site makes perfect sense. And presumably, if Stark Industries offers to “re-negotiate” the air rights over Grand Central, that could buy him a LOT of brownie points in Albany and City Hall…

    Good piece, and a great conversation starter over here.

  2. JoeNotCharles

    It seems to me that Stark’s easiest path to getting a variance declared is simple bribery.

    As for the arc reactor, Stark makes it out to be a significant achievement to have one powering the building in full, but in the original Iron Man, there’s been one powering a lab for ages. Given the amount of tech which he whips out over the course of days, it seems like the arc reactor should have been ready to handle this ages ago. If a lot of the time was spent getting the reactor approved for use in the city, the delay makes a lot of sense.

    • Stark tends to do “R&D” by actually building machines, without a lot of lab work. Could he get away with claiming it was (at least as far as the paperwork is concerned) “custom manufacturing”?

      • I thought about that a bit when writing the post. It’s hard to say, but I think the answer is no, for two reasons. One is that I suspect there is also more traditional R&D going on, and the other is the definition of custom manufacturing:

        “Use Group 11 consists of a few types of essentially custom manufacturing activities that:
        (1) benefit from a central location and are appropriate in the central business district;
        (2) generally do not create any significant objectionable influences; and
        (3) involve products characterized by a high ratio of value to bulk, so that truck traffic is kept to a minimum. ”

        At first glance it seems like Stark’s activities might fit, but if you look at the examples of manufacturing establishments in the zoning regulation, they’re pretty far afield from what Stark does. That suggests that Stark’s R&D is not “appropriate in the central business district.” Here are some examples:

        *Art needlework, hand weaving or tapestries
        *Books, handbinding or tooling
        *Ceramic products, custom manufacturing
        *Clothing, custom manufacturing or altering for retail
        *Hair products, custom manufacturing
        *Jewelry manufacturing from precious metals
        *Medical, dental, drafting instruments, optical goods, or
        similar precision instruments
        *Musical instruments, except pianos and organs
        *Orthopedic or medical appliances, custom manufacturing
        *Watchmaking

        The closest ones are “similar precision instruments” and “medical appliances,” which might cover some parts of the suit and—in some sense—his personal arc reactor. But I think it’s a stretch to cover everything he’s involved in, especially the explodey parts.

      • Can’t reply to James’ reply, but what if he made the top part of the building a hotel, then rented the rooms of the top X floors more or less permanently (some sort of auto-revolving lease, I’m sure an accountant could find a way), and install the R&D labs as a sort of service for this very special hotel, as a gym or pool might be?

        Would the hotel then be able to get away with this? Are there limits on the type of amenity a hotel could offer its guests?

      • Things like a gym or pool are “accessory uses” to the permitted use of the building as a hotel. I haven’t looked up the specifics, but I doubt an R&D lab is a permitted accessory use for a hotel.

      • Couldn’t he simply declare 10 floors his own residence?
        He could argue that labs are what he is used to living in. His father raised him in one, half of his California residence is a huge lab.
        Open another small lab in a district where he can, in the city, and people just come over to help out the boss with the project, they arent really working there.

    • Bribery when your legally dubious combat suit is already landing you in hot water is just asking the F.B.I. to arrest you. Seeking that variance legally is a lot safer for both the company and yourself.

      • James Pollock

        “Seeking that variance legally is a lot safer for both the company and yourself.”

        Sure, but does Stark care? He’s got more than a little bit of a self-destructive streak…

  3. Given the purpose of Stark Tower as a showcase piece for what would, if he could sell it to the right people, be considered a “green energy” initiative, he could get a TON of leeway out of the right political buzzwords.

    The rezoning would not be at all unreasonable given the nature of Stark Enterprises and the stated intent to make Stark Tower the companies “flagship” building. (It’s not SAID that’s what it is, but I don’t think it much of a stretch to guess that is what it is.) A “flagship” building could reasonably be expected to a) be in a central, showy location, b) have all the major components of the company’s fame present, and c) have unique requirements to be able to do its job as the nerve center of the company.

    Thus, the C-6 rezoning is likely to work out even with all the complication. Especially with bribery, which while illegal would merely be greasing the wheels rather than actively requiring any officials to look the other way for obviously fallacious claims (as would likely be needed for the variance).

    As for the arc reactor, if he can get the C-6 rezoning and the special permissions for the R&D facilities, he could likely call it part of his R&D projects. Failing that, I THINK buildings can have independent power generation for their own use as a “backup.” I know hospitals can (though they likely have their own zoning rules). As long as he’s only powering Stark Tower, he probably can get away with justifying it as owning a “backup generator.” I mean, it seems a bit dodgy to establish laws that require you to buy a service from a government-approved private company or not have it at all. It might happen, but I think it’d be a fight that most cities wouldn’t want to get into without solid reason. Again, a little bribery and pointing out that there’s nothing in it for the city, he can avoid anybody bringing charges.

    I mean, Hammer might try, I suppose? But would he have standing?

    • I work for a bank, and I know we have alternate power supplies (diesel generators) in our most important buildings, with server farms, and security systems for needed files, and such, as well as vaults. This is in Toronto, mind, but I would think there would be companies other than banks and hospitals who could demonstrate a need for backup power.

  4. I imagine that the tax implications of Stark Tower would have the city bending over backwards to accomodate Tony’s zoning amendment request. Corporations often hold cities over the coals to get what they want because they know cities want the extra tax base (though NYC probably has more clout than most cities).

  5. Christopher L. Bennett

    This article from io9 gives background for the film’s Stark Tower:

    http://io9.com/5906886/designing-the-avengers-the-art-of-marvels-most-ambitious-movie

    According to production designer nick Chinlund, “Tony Stark bought the iconic MetLife Building (formerly the PanAm Building) and ripped off the top adding his own piece of parasitic architecture to the top.” So Stark Tower isn’t just in place of the MetLife Building, it is the MLB with new floors and facade added. I wonder how that would affect the zoning issues.

  6. Given some of the other considerations mentioned as being in play here, I’m not sure that Stark would even need to consider bribery as an option.

  7. TimothyAWiseman

    “Rather than seek a blanket change to the C5-3 district, Stark could propose a zoning amendment to change 200 Park Ave to C6.”

    Wouldn’t changing the zoning for what amounts to a single business to benefit a single corporate entity constitute spot zoning? There is a decent chance no one would ever bother to challenge it, but if it was spot zoning and someone did challenge it there is a reasonable chance the courts would overturn it.

    • That’s certainly a possibility. New York defines spot zoning as

      [T]he process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners. … If … an ordinance is enacted in accordance with a comprehensive zoning plan, it is not ‘spot zoning,’ even though it (1) singles out and affects but one small plot or (2) creates in the center of a large zone small areas or districts devoted to a different use. Thus, the relevant inquiry is not whether the particular zoning under attack consists of areas fixed within larger areas of different use, but whether it was accomplished for the benefit of individual owners rather than pursuant to a comprehensive plan for the general welfare of the community.

      Rodgers v. Village of Tarrytown, 302 N.Y. 115, 123-24 (1951).

      The C5 zone that 200 Park Ave is in is adjacent to multiple C6 lots, so I think as long as the ULURP procedures were followed it would be hard to argue that it was “to the detriment of other owners” and inconsistent with the comprehensive zoning plan.

      • Someone above posted a link to an article whicch pointed out that in the film’s backstory, Stark simply bought the MetLife Building and retrofitted it to make Stark Tower. However, this post is written from the standpoint that Stark Tower is an entirely brand new building.

        Now what?

      • It doesn’t actually change much about the analysis, but I’ll update the post to explain why. Whether or not R&D was a permitted use when the MetLife building was constructed, the construction of Stark Tower was likely a “structural alteration” of the building that would disallow a grandfathered nonconforming use. It certainly exceeded the kind of “repair or incidental alteration” that would preserve the nonconforming use.

  8. First of all, the arc reactor at Stark Tower is supposd to be a secret. The more you discuss the possibility of such a thing the more likely the government is to start asking questions. As for the tower’s height, you assume that the relevant city employees, overworked and understaffed as they are, have actualy noticed the inconsistencies with existing the building codes. So shhh!

  9. “Custom manufacturing” night be exactly the kind of niche Stark could use under C5-3. He might argue that R&D is an inherent part of the custom manufacturing process. His ability to design and manufacture a complete suit of powered armor in one room can serve as proof of concept.

  10. Considering that Stark is a major player in the military-industrial complex, he could have a *lot* of lobbying power (the only problem being if the Financial Lords have a personal interest in the details of his building).

  11. Great – I HAVE to see the movie now. This is a strangely interesting post – kind of makes it show how deeply zoning affects some of us.

    I think the key is: Tony Stark is rich, famous, and like Barry said, CONNECTED. I imagine he just got an upzone to a TS-1 zone, which circles his lot, and allows for an FAR of 15^3, with a bonus for a public deatomizing plaza.

  12. Great movie, Awesome post!
    Though I absolutely agree with Barry, there is nothing money can’t buy you…especially if you are Tony Stark.

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