Introduction 1392-2016 Board of Standards and Appeals (BSA) Application Requirements

Date of Introduction: 
12/06/2016
Legislative Status: 
Plain English Summary: 

This bill would codify minimum evidentiary requirements for zoning variance applications with respect to establishing physical uniqueness of a zoning lot and the applicant’s inability to obtain a reasonable rate of return under the existing zoning. A person who makes a materially false statement or causes a materially false statement to be made in connection with a zoning application would be subject to a $25,000 fine for every such false statement.

Legislative Text: 

A Local Law to amend the New York city charter, in relation to requirements for applications before the board of standards and appeals

Be it enacted by the Council as follows:

Section 1. Section 668 of the New York city charter is amended to read as follows:

§ 668. Variances and special permits. a. Each application to vary the zoning resolution or for a special permit within the jurisdiction of the board of standards and appeals shall be filed with the board of standards and appeals with notarized certifications by the applicant, the property owner, and the preparer of any document accompanying the application, executed under penalty of perjury, that the statements made in the application and accompanying papers are true.

b. If the application requests a variance from the zoning resolution, it shall include the following:

1. In addition to any evidence submitted in support of a claim of uniqueness of physical conditions, a description of the character of the properties within a 400 foot radius of the project site boundaries, an analysis of such properties pursuant to guidelines promulgated by the board of standards and appeals, and the following information about each zoning lot in the analyzed area to the extent such information is publicly available in the decisions, city environmental quality review documents, or websites of the office of environmental remediation, the board of standards and appeals, the mayor’s office of environmental coordination, the department of city planning, the department of housing preservation and development, or the mayor’s office of housing recovery: the dimensions of such lot; descriptions of any non-complying buildings or structures on such lot; a description of any environmental hazards on such lot, including but not limited to the presence of hazardous materials or vapors, soil contamination or groundwater contamination; a description of any geotechnical issues on such lot, including but not limited to, ground water, shallowness, subway structures, soil conditions or bedrock irregularities; and any prior decisions of the board of standards and appeals in connection with such lot.

2. In addition to any evidence submitted in support of a claim that there is no reasonable possibility that a development, enlargement, extension, alteration or change of use on the zoning lot in strict conformity with the provisions of the zoning resolution will bring a reasonable return, the following information: the marketbased acquisition costs for the property based on the market value of similarly situated properties subject to the same size and usage restrictions under the zoning resolution; hard and soft costs associated with developing the property in conformance with the existing size and usage restrictions under the zoning resolution; total development costs associated with developing the property in conformance with the existing size and usage restrictions under the zoning resolution; and the amount of any construction or rehabilitation financing obtained. If the applicant asserts that the project cannot obtain construction or rehabilitation financing because of the existing zoning requirements, the applicant shall provide proof of all attempts to obtain such financing.

3. For rental properties, the application shall include the following information based on the existing size and usage restrictions under the zoning resolution, accompanied by similar information about comparable properties with narrative adjustments for time, location, age, zoning and physical characteristics: a breakdown of rental income by floor and square footage; gross income; vacancy/collection loss percentage and estimate; effective income; operating expenses; real estate taxes; water and sewer charges; net operating income; and a calculation of the overall return obtained by dividing the net operating income by the total development cost.

4. For cooperatives and condominium properties, in addition to any evidence submitted in support of a claim that there is no reasonable possibility that a development, enlargement, extension, alteration or change of use on the zoning lot in strict conformity with the provisions of the zoning resolution will bring a reasonable return, the application shall include the following information based on the existing size and usage restrictions under the zoning resolution, accompanied by comparable information about similar properties with narrative adjustments for time, location, age, zoning and physical characteristics: a breakdown of projected sellout value by square footage, floor and unit mix; sales and marketing expenses; capitalized value of leased portions; net sellout value; a calculation of net profit obtained by deducting the total development costs from the net sellout value; and a calculation of return percentage obtained by dividing the net profit the total development cost.

c. Community boards and borough boards shall review applications to vary the zoning resolution and applications for special permits within the jurisdiction of the board of standards and appeals under the zoning resolution pursuant to the following procedure:

1. Each proposal or application shall be filed with the board of standards and appeals, which shall forward a copy within five days to the community board for each community district in which the land involved, or any part thereof, is located, and to the borough board if the proposal or application involves land located in two or more districts in a borough.

2. Each such community board shall, not later than sixty days after the receipt of the proposal or application, either notify the public of the proposal or application, in the manner specified by the city planning commission pursuant to subdivision i of section one hundred ninety-seven-c, conduct a public hearing thereon and prepare and submit a written recommendation thereon directly to the board of standards and appeals, or waive the conduct of such public hearing and the preparation of such written recommendation.

3. A copy of a recommendation or waiver by a community board pursuant to paragraph two of this subdivision that involves land located within two or more community districts in a borough shall also be filed with the borough board within the same time period specified in that paragraph. Not later than thirty days after the filing of such a recommendation or waiver with the borough board by every community board in which the land involved is located or after the expiration of the time allowed for such community boards to act, the borough board may hold a public hearing on the proposal or application and any such recommendation and may submit a written recommendation or a waiver thereof to the board of standards and appeals.

4. The receipt of such a recommendation or waiver from every community or borough board involved, or the expiration of the time allowed for such boards to act, shall constitute an authorization to the board of standards and appeals to review the application and to make a decision.

5. If after the receipt of such a recommendation or waiver from every community or borough board involved, or the expiration of the time allowed for such boards to act, the applicant for a special permit or variance submits to the board of standards and appeals any additional documents or plans, he or she shall at the same time forward copies of such documents or plans to the city planning commission, the council member involved and to the community or borough board involved.

6. Copies of any written information submitted by an applicant for purposes of determining whether an environmental impact statement will be required by law in connection with an application under this section, and any documents or records intended to define or substantially redefine the overall scope of issues to be addressed in any such draft environmental impact statement shall be delivered to all affected community boards and borough boards.

7. If a meeting involving a city agency and an applicant is convened to define or substantially redefine the overall scope of issues to be addressed in any draft environmental impact statement required by law for an application subject to review under this section, each community board involved and each borough president involved shall receive advance notice of such meeting, and each shall have the right to send one representative to the meeting.

[b]d. The recommendation of a community board or borough board pursuant to subdivision [a]c of this section shall be filed with the board of standards and appeals and a copy sent to the city planning commission. The board of standards and appeals shall conduct a public hearing and act on the proposed application. All testimony delivered at such hearing shall be sworn under oath. A decision of the board shall indicate whether each of the specific requirements of the zoning resolution for the granting of variances has been met and shall include findings of fact with regard to each such requirement.

[c]e. Copies of a decision of the board of standards and appeals and copies of any recommendation of the affected community board or borough board shall be filed with the city planning commission. Copies of the decision shall also be filed with the affected community or borough boards.

[d]f. Any decision of the board of standards and appeals pursuant to this section may be reviewed as provided by law.

[e]g. The board of standards and appeals shall make publicly available on its website each application submitted pursuant to this section and all written testimony and materials submitted in connection with a public hearing conducted pursuant to subdivision d of this section. Such information shall be made available online within five days of each such submission.

h. The city planning commission shall be a party to any proceeding to determine and vary the application of the zoning resolution. The commission may appear and be heard on any application pursuant to this section before the board of standards and appeals if, in the judgment of the city planning commission, the granting of relief requested in such application would violate the requirements of the zoning resolution relating to the granting of variances. The commission shall have standing to challenge the granting or denial of a variance in a proceeding brought pursuant to article seventy-eight of the civil practice law and rules, or in any similar proceeding.

i. The board of standards and appeals may promulgate such rules and prescribe such forms as are necessary to carry out the provisions of this section. § 2. Chapter 27 of the New York city charter is amended by adding a new section 670 to read as follows:

§ 670 False statements.

a. It shall be unlawful for any person to knowingly or negligently make or allow to be made a material false statement in any certificate, professional certification, form, signed statement, application or report that is either submitted directly to the board of standards and appeals or that is generated with the intent that the board rely on its assertions.

b. A person who has been found, after a hearing at the environmental control board or before any authorized tribunal of the office administrative trials and hearings, to have made or allowed to be made a material false statement in violation of subdivision a of this section shall be subject to a $25,000 fine each such false statement.

§ 3. This local law takes effect 90 days after enactment.

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