Rewriting the zoning book

Proposed changes allow extra height in flood areas, roof decks

At its upcoming meeting on Wednesday, June 17, the Hoboken City Council is scheduled to vote on the first substantive updates to the city zoning code in several years. Many issues with the code remain outstanding, and the administration of Mayor Dawn Zimmer says it is working on a more comprehensive update for later this year.
The changes before the City Council this week have been billed as common sense tweaks that will help reduce the overwhelming backlog of applications faced by the Zoning Board of Adjustment, and bring the city zoning book in line with the flood damage prevention ordinance passed after Superstorm Sandy.
At a Planning Board meeting two weeks ago, the board approved the zoning update ordinance 7-1, saying it was in agreement with the city master plan. However, some members of the public expressed fears that the changes would lead to taller buildings in town and create an incentive to knock down historic rowhouses.

Building over flood elevation

The most substantive and debated change in the proposed ordinance clarifies the rules regarding building heights in residential zones and brings them into agreement with the 2013 flood damage prevention ordinance.
Previously, the city used two alternating yardsticks for permitted height in residential zones, 40 feet and three stories. The proposed law sets a single standard. Homeowners can build 40 feet above their lot’s “design flood elevation” with no need for a variance from the Zoning Board.

“Even if you call two of the floors…a duplex, you’re still adding to the number of people that are in the town.”—Dan Tumpson
The design flood elevation of a given property is the estimated height that a 100-year flood would reach, according to the Federal Emergency Management Agency, plus an extra foot of freeboard.
According to a city memo, approximately 80 percent of Hoboken has a design flood elevation above ground level. For the few elevated neighborhoods in town with no design flood elevation, like Castle Point, homeowners can continue to build 40 feet above the ground under the new zoning ordinance.
The change in permitted height is meant to account for the fact that, under the 2013 flood prevention ordinance, residential uses are no longer permitted on floors at or below design flood elevation. Existing garden apartments in flood zones are grandfathered in, though they must pay astronomical flood insurance rates, but new ones can’t be built without a variance.
Because that makes the bottom floor unusable for anything besides storage in most residential zones, the zoning update would allow property owners to add height equivalent to their design flood elevation on top of their buildings.
However, the increase in height does not entail an increase in density, defined in land use terms as the number of units a building can have. If the design flood elevation of a townhouse is 10 feet, the homeowner would have the right to build an extra floor on top of his building, but not to turn into a new separate apartment without permission from the zoning board.
Despite this, Hoboken development activist Dan Tumpson said he remained concerned that the zoning changes would lead to an increase in Hoboken’s population.
“Even if you call two of the floors one unit and it’s a duplex, you’re still adding to the number of people that are in the town, the number of services that are required, the stress on the infrastructure,” he said.
Several residents at the Planning Board meeting argued that allowing 40 feet of construction above design flood elevation without a variance would create an incentive to knock down historic rowhouses, many of which are only three stories or roughly 30 feet high, and build new glass monstrosities.
“It’s pretty obvious to me that we are throwing our historic character out the window as fast as we can because we want to tear everything down so we can get cheaper insurance,” said Mary Ondrejka, who frequently comments on development issues.
Jim Vance, the president of the Fund for a Better Waterfront, a local open space advocacy group, said he was okay with adding height to accommodate flood elevation, but asked that any additional height over 40 feet above ground level be set back so that it is not visible from the street. The planning board approved a recommendation asking the City Council to consider the legal and potential ramifications of such a change.

Normalizing nonconformity

Besides the flood damage prevention ordinance, the proposed zoning changes are informed by one main document, the annual report prepared by the Zoning Board at the end of 2014. In recent years, the zoning board has managed a consistent backlog of around 30 to 40 applications at a time, and the report identified reoccurring requests that account for many of the applications.
One commonality is applications that involve nonconforming lots, which are smaller or larger than the standard lot size for their zone. An estimated 55 percent of the city’s lots are nonconforming, and under current law, each of them is required to seek a variance from the Zoning Board in order to make any alterations to their structure, even if the changes meet every other zoning stipulation regarding height, bulk, density and lot coverage.
Under the new law, owners of nonconforming lots would have the same basic land use rights as owners of conforming lots, and would only have to seek a variance if their proposed alteration violates a different zoning rule.
The changes in the zoning ordinance would not apply to nonconforming structures, however, which would still require a variance if a proposed alteration increases their bulk, and thus their degree of nonconformity.
According to some on the Planning Board, normalizing nonconforming lots would do more than just decrease the amount of applications before the zoning board. It could also decrease the number of variances that individual applicants ask for within an application.
Planning Board Attorney Dennis Galvan, who also represents the zoning board, gave the example of a recent zoning board application for a property that needed a variance to be elevated in order to comply with the flood ordinance.
“In the process of doing that,” said Galvan, “not only did they ask to elevate the building, they also asked to add an addition onto the back of the building…If we just allowed them to elevate it, it would have been a real pain in the neck to go to the zoning board just to ask for the [addition].”

Roof decks

The proposed zoning ordinance also finally sets rules for the construction of roof decks, which have become increasingly popular in the city. Under the new guidelines, roof decks can occupy 30 percent of a roof and must be set back 10 feet from the street frontage and 3 feet from every other roof edge.
Property owners can unlock bonus area for a roof deck if they make at least half of their roof ‘green’ by installing a layer of plants and dirt that will absorb rainwater, preventing it from entering the storm sewers. Outside of adding a green roof, building a roof deck exceeding 30 percent surface area will require a variance from the Zoning Board.

Carlo Davis may be reached at

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