Rezoning of Neighborhoods without Public Review Targeted for Reform by New York City Council

Rezoning of Neighborhoods without Public Review 
Targeted for Reform by New York City Council 

Zoning Variances at Board of Standards and Appeals Subject of Council Reforms

New York, NY – Over the objections of local Community Boards and elected officials developers have been able to circumvent city zoning laws restricting building forms, use, height, density and more, through the Board of Standards and Appeals (BSA). The little agency, mostly known as a “rubber stamp” for developers, has been criticized for ignoring objections of community and elected officials, difficulty in appealing determinations without any written decision and short time frame, and ultimately “rezoning by variance” without public review.
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) according to Citizen’s Union.
The Board of Standards and Appeals (BSA), which grants variances from the City’s zoning laws, is proposed for reform by Governmental Operations Chair Ben Kallos with Majority Leader Jimmy Van Bramer, Minority Leader Steven Matteo, Zoning Chair Donovan Richards, Council Member Karen Koslowitz and Council Member Rosie Mendez. The package of bills will be heard in the Committee on Governmental Operations on December 14, 2016.
The legislative package is slated to include:

  • Int. 1392-2016 by Kallos - would impose rigorous requirements on developers to prove why the zoning laws should not apply to them and impose severe penalties on professionals for falsifications.
  • Int. 418-2014 by Koslowitz – Requires written decision with explanations of findings when decisions contravene community boards.
  • Int. 282-3014 by Van Bramer – Creates formal rules to consider submitted arguments and evidence submitted by elected officials and community members.
  • Int. 691-2015 by Rosie Mendez – Extends time to appeal a variance from 30 days to four months as is the standard for an Article 78.
  • Int. 514-2014 by Matteo – Requires notifications to building owners for when variances expire with penalties for continued use after expiration date.
  • Int. 1200-2016 by Richards – Requires notifications for the council member when an application to vary the zoning resolution or an application for special permit is received by the board.
  • Int. 1393-2016 by Kallos – reporting on hearing, approval, denial, and time for applications and appeals.
  • Int. 1394-2016 by Kallos – requires mapping of all variances online.
  • Int. 1391-2016 by Kallos - requires the BSA to have a state certified general appraiser and a member of the Appraisal Institute who can review and analyze real estate financials provided by developers.
  • Int. 1390-2016 by Kallos - City Planning Commission would also be required to appoint a BSA coordinator who would have to attend BSA meetings and post their testimony online.

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, but did not pass any of the legislation. 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 the Mayor’s Mandatory Inclusionary Housing (MIH) plan, developers are able to seek a waiver to avoid building the required affordable housing in neighborhoods that have been rezoned. This provision of the plan greatly expands the Board’s power and without additional oversight may threaten to undermine the City’s ability to ensure affordable housing is built in exchange for taller buildings.
“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 of Governmental Operations with 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 Van Bramer, Koslowitz and Mendez 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.”
“Developers should not be able to circumvent the necessary and democratic public review process,” said Majority Leader Jimmy Van Bramer. “Unfortunately, the BSA allows them to do just that, resulting in buildings that do not serve local residents. For years, I’ve been working to reform the BSA and require greater community input. I’m thrilled that today, we’re finally hearing legislation that will bring greater transparency and responsiveness to the opaque and un-democratic agency.”
“Community Boards and elected officials have stood by watching the Board of Standards and Appeals ignore their input and favor developers for too long,” said Council Member Donovan Richards, chair of the Subcommittee on Zoning and Franchises. “I look forward to working with my colleagues to see these bills move forward to improve transparency from the BSA and developers, along with an increased emphasis on local voices weighing in on a plan for a variance. I’d like to thank Chair Kallos, and all of my colleagues who are working to see that the BSA serves not only developers, but also the residents of New York City.”  
“Community and Borough Boards make a serious investment in time and effort in reviewing BSA applications before making a recommendation. Those recommendations need to be treated by the BSA with the respect that they deserve,” said Council Member Karen Koslowitz. 
“I am looking forward to positive reform coming to the Board of Standards and Appeals (“BSA”). Intro 691 is common sense and brings uniformity to the BSA with other legal matters in the City and State of New York. My proposed legislation would extend the statute of limitations for appealing a BSA decision from the existing 30 days to 120 days, which is identical to the general statute of limitations period for Article 78 proceedings. This would bring consistency to the administrative procedures within the City of New York, as well as allow an adequate amount of time to review a decision that could drastically impact a local community,” said Council Member Rosie Mendez.
 “My bill to fix the broken practice that allows developers to work despite expired variances, along with these nine other bills,  will help bring better oversight and a stronger enforcement to a system that often circumvents the public will.  I look forward to working with my colleagues to ensure this legislation provides the necessary reform to make the BSA process work better for all involved,” said Council Member Steven Matteo.

"Recently, the Board of Standards and Appeals has taken a balanced approach and produced prudent decisions, acting as the safety valve the body was meant to be instead of the rubber-stamp for developers it became in the past," said Manhattan Borough President Gale A. Brewer. "I thank the current Board for its service and many of its recent decisions, and support these bills because I want to make sure future incarnations of the BSA have the ground rules and policies they need to keep up this Board's good work."
 “In 1976 and 2004, MAS released landmark studies about the New York City zoning variance process, which has been a persistent concern for neighborhoods trying to preserve their unique identity and character.  Bills recently drafted by the New York City Council begin to address the problem by requiring the Board of Standards and Appeals to regularly publish data about the number and location of zoning variances. MAS has long advocated for transparency across the land use process and we look forward to the introduction of these sensible pieces of legislation,”
Gina Pollara, President, The Municipal Art Society of New York.
“The BSA is the essential escape and moderating agency for zoning. It is good that the City Council is examining its role and procedures and we welcome the Council’s review of this important public process,” said Ross Sandler, Professor & Director of the Center for New York City Law at New York Law School.