Council Hears Testimony from BSA on New Oversight Legislation

01/06/2017

Executive Director of the Board of Standards and Appeals voices support for some proposed reforms, but states concern about financial and personnel burden to the agency. On December 14, 2016, the City Council’s Committee on Governmental Operations heard testimony on ten proposed bills designed to provide more oversight of the Board of Standards and Appeals. The BSA, which was originally created to be an independent board tasked with granting “relief” from the zoning code, is empowered by the Zoning Resolution and primarily reviews and decides applications for variances and special permits. Recently the BSA has come under fire from the City Council. For CityLand’s prior coverage of the topic, click here and here.

The genesis of the proposed legislation can be traced to a 2004 study by The Municipal Arts Society titled, “Zoning Variances and the New York City Board of Standards and Appeals.” Participants in the study included the now Commissioner for Housing Preservation and Development Vicki Been and Director of the Center for New York City Law at New York Law School Ross Sandler. The study’s committee recommended improving the application processes of the BSA through legislation, and providing better oversight of the BSA, adding expertise to the BSA.

At the December 14th hearing, Ryan Singer, Executive Director of the BSA, acknowledged the popular public perception that the BSA approved too many of the applications before it, but stated that denials by the BSA are “conspicuous in their absence.” He noted that the BSA engages in extensive pre-application reviews; in 2015 the BSA had 96 pre-application meetings, of which only 27 filed for a variance or special permit. Singer stated that the BSA therefore dissuaded 69 potential variance requests.

Singer expressed concerns that the proposed legislation would require the BSA to refer to every comment received during hearings and how the BSA considered. He likened BSA hearings to City Council hearings, in that they are open and can receive voluminous comments from anyone and are not required to be pertinent to the application.

Singer stated, regarding the proposed requirement that the BSA notify individuals upon the expiration of a variance, that the BSA was working with the Department of Buildings to include BSA variance information in its database. He argued though that to require the BSA to retroactively comb through a century worth of variances would be unduly burdensome for the small agency.

The legislation would also require the BSA to send notification of all applications to the relevant Council Member. Singer pointed out that BSA rules already require the applicants to do so. Proof of service is required to be sent to the BSA. Recently an applicant had failed to do, and that applicant was removed from the BSA’s calendar. Singer, however, testified that the BSA did not track when applicants failed to send notices.

Singer was supportive of the legislation’s application of the threat of perjury to BSA applications, but questioned how such a bill would be enforced. Regarding the additional requirements from applicants, Singer stated that one size does not fit all, and that the BSA already had a set of required information on its website. Singer was open to working with the Council to change some of those requirements outside of legislation.

The BSA did not support the portion of the bill to post all applications online and all testimony received for every application. Singer stated that for security reasons such information should not be publicly disclosed. Council Member Ben Kallos questioned the BSA’s objection to publicly disclosing all applications. “I think the Open Data Law already requires you to put this online. . . . If I can’t make the tenant black list illegal. If a landlord taking a tenant to court is public information. If divorce proceedings are public information. If criminal proceedings, even when the person is acquitted, are public information, I think that a [BSA] application is public information.” Singer responded, saying, “It is public information subject FOIL requests, but we don’t believe it should be posted on our website.”

The legislation would also require City Planning to have a representative at every BSA hearing and to post all testimony. City Planning opposed the requirement. Alison McCabe, Assistant Counsel at the Department of City Planning, testified that while her agency keeps tabs on the BSA, it has only intervenes when it was “warranted.” City Planning relies heavily on individual borough offices for determining when City Planning testimony was warranted. “The fact that DCP is involved is news to me,” retorted Kallos.

Council Member Reynoso was heavily critical of the BSA at the hearing. The Council Member placed responsibility for the gentrification and displacement of Williamsburg solely on the agency’s shoulders. Further, Reynoso stated that the Council had to create Industrial Business Zones specifically to combat the BSA. In response, Executive Director Singer acknowledged that the BSA did not have the best legacy, but also assured the Council that the current Board was aware of the Council Member’s concerns.

The BSA did support the hiring of one staff member that was a state certified general appraiser. Singer noted, however, that he did not believe there were enough applications needing financial analysis to keep a full-time appraiser occupied.

Regarding the extension of the appeal window of a BSA decision from 30 days to four months, Singer expressed concerns for small applicants who receive relief from the BSA, delaying the relief for a possible four months and being costly to the applicants.

The ten bills were laid over for the next scheduled committee meeting in early 2017.