Board of Standards and Appeals Reform Legislation Passes New York City Council

05/24/2017
City Hall – Today, the New York City Council passed a package of legislation aimed at reforming the New York City Board of Standards and Appeals (BSA). In the past developers have been able to circumvent city zoning laws restricting building forms, use, height, density, through the BSA even though local Community Boards and elected officials objected to their decisions. This legislation aims to reform applications, decisions, notifications, staffing and transparency around the BSA to be more accountable to the public. The BSA is a five-member body tasked with reviewing requests for variances and special permits related to affordable housing and city planning in the zoning law. The package includes nine bills and featured bipartisan support from sponsors including Governmental Operations Chair Ben Kallos, Majority Leader Jimmy Van Bramer, Minority Leader Steven Matteo and Council Members Karen Koslowitz (D-29) and Donovan Richards (D-31).
 
Application Reform:
 
Introduction 1392-A, by Kallos – Sets minimum application requirements for developers to show why zoning laws should not apply to them including key financial disclosures with analysis by real estate professionals, neighborhood studies showing unique conditions, and affirmations under penalties of perjury with fines for knowing violations of up to $15,000.
 
Decision Reforms:
 
Introduction 418-A, by Koslowitz – The BSA will be required to write decisions with responses to recommendations from Community Boards and Borough Boards.
Introduction 282-A, by Van Bramer - The BSA will be required to write decisions that respond to any relevant evidence and arguments submitted by the City Planning Commission, Community Boards, Borough Boards, lessees and tenants as well as owners.
 
Notification Reforms:
 
Introduction 1200-A, by Richards – Proof of service will be required for applications and materials mailed to Council Members, Borough Presidents, Community Boards and other city agencies, with verification of receipt to be posted online.
Introduction 514-A, by Matteo - Notifies property owners when variances are expiring and penalties will be incurred in the coming six months. 
  
City Staffing Reforms:
 
Introduction 1390-A, by Kallos -The Department of City Planning will appoint a BSA coordinator to appear before the BSA to submit testimony in defense of the zoning resolution, and such testimony would be available online.
Introduction 1391-A, by Kallos - A state certified real estate appraiser with no less than 5 years’ experience will be available to work for or consult with the BSA to review and analyze real estate financials provided by developers.
 
Transparency Reforms:
 
Introduction 1393-A, by Kallos - The number of pre-application meeting requests, number of applications, number approved or denied, and an average length of time until a decision would be reported biannually.
Introduction 1394-A, by Kallos – The location of all variances and special permit applications acted upon by the Board since 1998 would be available as a list and a layer on an interactive map of the city.
 
“We are taking away the rubber stamp from a government agency that used it far too often over the objections of residents. Developers will have, to be honest in applications that include the truth, the whole truth, and nothing but the truth. The Board of Standards and Appeals will have to consider community objections and write decisions outlining why they disagree. The City Planning Commission will have to watch over our zoning laws,” said Council Member Ben Kallos, Chair of the Committee on Governmental Operations, which has oversight of the Board of Standards and Appeals. “Thank you to the Municipal Art Society and Citizens Union for their reports and guidance, Borough President Brewer, as well as Council Members Koslowitz, Matteo, Richards, and Majority Leader Van Bramer for their long-standing leadership on this issue, and our Community Boards who fight the Board of Standards and Appeals on behalf of all New Yorkers every day.”
 
“The five commissioners of the Board of Standards and Appeals wield enormous power and make consequential decisions that affect neighborhood character and affordability,” said Majority Leader Jimmy Van Bramer. “When a developer in pursuit of higher profits requests an exemption from a zoning law by submitting an appeal to the Board, concerns from members of the community often arise. The bill being voted on today would add a new layer of transparency and public accountability by requiring that the Board reference and address concerns and dissent from the public, community boards, and elected officials in their final decision. If the Board ever votes against the wants and needs of a neighborhood, I believe that the members of the community who will ultimately live with the consequences of the Board’s decision deserve to know why.”
 
“Currently, developers are able to work on structures that do not conform to zoning regulations and despite racking up fines for variances that have long expired, and there is no system to notify them that they must re-apply for these variances. Legislation I introduced will fix that problem, and, along with this package of BSA reform legislation, will help bring better oversight and a stronger enforcement to a process that often circumvents the public will,” said Minority Leader Steven Matteo.
 
“Introduction 1200-A will ensure that the Board of Standards and Appeals does its fair share of accountability when it comes to developers notifying communities and elected officials about applications in their neighborhoods,” said Subcommittee on Zoning and Franchises Chair Donovan Richards. “It was shocking to hear that the BSA does not track these instances where developers do not follow through on this required step in the process. This requirement will ensure that the BSA is working with communities and elected officials and not against us. I’d like to thank Speaker Mark-Viverito and Government Operations Chair Kallos for all of their work on improving accountability at the BSA.”
 
“Community and borough boards spend significant time and effort on special permit applications brought before them for review,” said Council Member Karen Koslowitz. “Public hearings, community outreach, special committees and full board review are common when considering special permits. Community and borough boards should not feel that their recommendation on a matter was cavalierly discarded by the BSA.  Intro 418-a would require the Board of Standards and Appeals, in granting or denying an application before them, to respond to any relevant recommendation filed by a community or borough board regarding such application.”
 
"The Board of Standards and Appeals used to be known as a rubber stamp letting developers get around city laws, but I am pleased that under the administration, it has taken a more balanced approach," said Manhattan Borough President Gale A. Brewer. "I support these bills because this little-known board makes crucial decisions with major effects on our neighborhoods, what gets built, and whether our zoning and preservation laws are truly enforceable. Future incarnations of the BSA must have the right ground rules in place to keep up this Board's good work."

“In 1976 and 2004, MAS released landmark studies on New York City’s arcane zoning variance rules. The bills passed today by the City Council will help rationalize the process for neighborhoods seeking to preserve their unique identity and character: strengthening staffing requirements at both the Department of City Planning and the Board of Standards and Appeals (BSA), and requiring the BSA to publish critical information on its website, including data about the number and location of zoning variances. MAS has long advocated for efficiency and transparency across the land use process and we applaud these sensible pieces of legislation.” said Elizabeth Goldstein, President of The Municipal Art Society of New York (MAS).
  
"Generally, CIVITAS supports legislation that enables greater communication and dissemination of information between the BSA, City Council Members, community boards, and the Department of City Planning. Legislation mandating explanations of BSA decisions, improving notification and penalties for expiring variances, as well as legislation regulating the quality and veracity of applications received by the BSA are all common sense changes that will improve the Board’s work and enable interested parties to better understand its conclusions," said Jameson Mitchell, Executive Director of CIVITAS.  
 
“The Board of Standards & Appeals has long been considered a closed door which only opens to issue damaging decisions. Hopefully, these long-sought reforms will begin to open up the agency and make it more transparent and responsive to community concerns,” said Simeon Bankoff Executive Director of the Historic Districts Council.
 
“This suite of bills brings a renewed level of accountability to a City Agency captured by well-versed lobbyists and lawyers performing exclusively in developer interests.  LANDMARK WEST! sees these new measures of transparency as a means of beginning to level the field for all New Yorkers, and hopes this legislation will more closely hold the BSA to its mandate of offering the minimal zoning relief to affected landowners,” said Kate Wood, President, LANDMARK WEST.

“The BSA holds tremendous sway over what gets built in our city and is where you go to seek exceptions from our city’s zoning restrictions and regulations. For too long, these exemptions have been given out without a firm basis in fact or the law, based upon spurious claims by developers and institutions.  We welcome these efforts to make the BSA more transparent and responsive and hope these will be first steps towards ensuring that everyone in our city must play by the same rules, and neighborhood zoning protections and character are respected and upheld,” said Andrew Berman, Executive Director of the Greenwich Village Society for Historic Preservation.
 
“We welcome these bills as an attempt to start reform at the BSA—the agency responsible for changing the character of numerous blocks at my southern end of Brooklyn via special permits (73-622), variances, and even legalizing what started as illegal construction work.  Notably, I am pleased with Intro 1392-2016, which institutes penalties for ‘false statements’ to the BSA, a not unusual occurrence, and Intro 1394-2016, which calls for mapping special permits and variances, a recommendation made by the Municipal Arts Society more than a dozen years ago,” said Ed Jaworski President of  Madison-Marine-Homecrest Civic Association.
 
"The Auburndale Improvement Association, representing approximately 500 families in Auburndale, Flushing and western Bayside, Queens County, supports the passage of the common sense nine bills that will make the Board of Standards and Appeals more accountable and transparent to city residents, community boards and elected officials.  Thank you to Governmental Operations Committee Chair Ben Kallos and all of the Council Members who are sponsoring or co-sponsoring these nine important bills, said Henry Euler, First Vice President Auburndale Improvement Association, Inc."

“Today there is landmark legislation that will become law to ensure long overdue public accountability of the BSA. Residents can take comfort in knowing the BSA can no longer disregard quality-of-life issues surrounding construction that the BSA has ignored in many of its decisions. This is the first step toward ensuring this agency represents all city residents - not just developers - and we look forward to seeing these changes implemented,” said Lisa Paule Co-founder, Serene Green.
 
Created in 1916, the BSA is a five-member board that hears cases from developers and property owners seeking variances from the City’s Zoning Resolution. Under Zoning Resolution §72-21, variances may only be granted when all five of the following findings have been met:

(a) that there are unique physical conditions …. inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise;
(b) that because of such physical conditions there is no reasonable possibility that the development of the zoning lot will bring a reasonable return … this finding shall not be required for the granting of a variance to a non-profit organization;
(c) that the variance, if granted, will not alter the essential character of the neighborhood;
(d) that the practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner;
(e) …the variance, if granted, is the minimum variance necessary to afford relief.

In March 2004, The Municipal Arts Society (MAS) released a study “Zoning Variances and the New York City Board of Standards and Appeals” that followed a previous study in 1976. The subcommittee that produced the report included Vicki Been who is now the Commissioner for Housing Preservation and Development, Ross Sandler of New York Law School, as well as Eve Baron who is now Chair for Center for Planning and the Environment at Pratt Institute and was drafted by Chris Rizzo who was then a fellow for MAS and now Partner at Carter Ledyard & Milburn. The 2004 report suggested the following changes:

A. Improve the Application of the Five Findings Through Rule-Making.
B. Provide Better Oversight of the BSA and the Variance Process.
C. Add Expertise to the BSA.
D. Strengthen the Variance Application Process.
E. Create a Commission to Study the Creation of a Zoning Administrator Position and New Standards for Area Variances.
These recommendations from these two reports by the Municipal Arts Society were the inspiration for this package of legislation introduced by Kallos.
 
In 2010, Citizens Union included reforms to the BSA in there 2010 City Charter Revision Recommendations “Increasing Avenues for Participation in Governing and Elections in New York City,” that were ultimately not included in the city’s charter revision.
 
The City Council Committee on Governmental Operations chaired by Gale Brewer heard legislation to reform the BSA on April 27, 2012, During the hearing Citizens Union revealed that the BSA granted 97% of variances in 2011 (102 of 105) with community boards only supporting 79% of the variances that they acted on (81 of 103).
 
Under Mandatory Inclusionary Housing (MIH), developers are able to seek a waiver from the Board of Standards and Appeals to avoid building the required affordable housing in neighborhoods that have been rezoned.