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.
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.
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.
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.