What is the Board of Standards and Appeals?

Want to build higher than you are allowed under existing rezoning?  Or operate a gas station where only residences are allowed?  Or deviate at all from what the zoning of the location allows?  Then you, or your lawyer, will likely have to apply for a variance at NYC Board of Standards and Appeals (BSA).  Though known by few New Yorkers, this body has a profound affect upon how our neighborhoods looks and function, and today we thought we’d offer a little insight into what this city agency does and how they do it.

Construction undergoing on Block Lot , where they er also seeking a variance to build 45 higher than allowed under current zoning.

Heavy equipment activity already undergoing on Block 441 Lot 23 , where the developer is now seeking a variance to build 44′ higher than allowed under current zoning, and without a setback, on East 14th Street.

The BSA is run by five Commissioners, appointed by the Mayor for six-year terms.

The City Charter mandates that the board’s members must include a planner with professional qualifications, a licensed professional engineer, and a registered architect, each with at least ten years of experience.  Although the BSA evaluates complex financial data and analysis (and in fact, most of their decisions are contingent upon such analysis), and uses a staff with a variety of backgrounds and skills, there is not a requirement that any of the board’s Commissioners themselves have any such financial analysis experience.

One of the key functions of the BSA is to provide a process for property owners in those uncommon circumstances where existing zoning regulations would prohibit them from reasonably developing their property, in which case they can seek a zoning variance. But there is no hard and fast rule as to what constitutes a reasonable return, and numbers are very malleable.

Residents at July Community Board # 3 land use committee meeting holding up signs asserting knowlingly buying a property with potential conditions is a self-imposed burden.

Residents at July Community Board # 3 land use committee meeting holding up signs addressing what they assert is a self-imposed burden.

Community Boards can hold their own hearing and submit comments on variance applications, but their opinions are only advisory.  The local Council Member in an impacted district has no official role in this important process, except that they must be provided a copy of the BSA application in advance of the hearing.

“My experience, my community’s experience, with BSA has been painful and it is riddled with numerous instances of an entire community being disregarded while it approved development that flies in the face of what is best for our community,” Council Member Jimmy Van Bramer is quoted as saying.

But community voices and advocacy efforts can make a difference.  Landmark West recently spearheaded a community mobilization to achieve a victory. Thanks to their efforts, the BSA rejected a variance request to build 34 luxury condominiums inside a former church on Central Park West.

When considering applications, the BSA is supposed to use five criteria in their evaluation, often referred to as “the five findings:”

1      Is there a unique condition of the site that impacts as of right development?

2      Does such a unique property condition prohibit an applicant from achieving a reasonable financial return?

3      Would the variance alter the essential character of the neighborhood if it was granted?

4      Did this situation arise as result of a self-imposed hardship?

5      Is the requested variance the minimum necessary to provide some relief?

A unique condition may be a subway tunnel running underneath the property, which legally and logistically requires extra precautions be taken in construction.  Sometimes an owner will claim that the soil on site is unusually soft, requiring extraordinary measures to allow building to take place.  Any such claims need to be backed up by engineers (generally hired by the applicant).  Arguably, however, the precedent of such a claim, as well as whether any similar developments required such a variance to make a reasonable return, should also be considered.

A case in point is a recent proposal to allow an increase in allowable height for a new development development at 14th Street and 8th Avenue.  The developer’s request for a zoning variance allowing a height increase was predicated on the existence of an MTA subway tunnel under a portion of the project site.  GVSHP opposed the height increase variance and pushed back on the developer’s claims before the BSA about a hardship and the lack of adequate return that would come from a more conforming development.  The BSA rejected the requested variance for an increase in height.

When considering whether an applicant will be able to achieve a reasonable financial return, the BSA asks that they provide comparable examples, or “comps”,  in the area.  This is supposed to indicate an estimate of the revenues that can be derived from ground floor rental of commercial space, or apartments, or condominium sales, for example.

What was presented as an example of comparable retail space as part of application for new development with ground floor retail at West 14th Street and 8th Avenue.

What was presented as an example of comparable retail space as part of application for new development with ground floor retail at West 14th Street and 8th Avenue.  Is this comparable to a new storefront on a corner with heavy foot traffic?

Looking at whether a variance would alter the essential character of a neighborhood if it was granted, the BSA must consider the context within which it is proposed.  For a requested variance for a development that stretches from East 13th Street to East 14th Street and Avenue A, the applicant is using Stuyvesant Town to the north as a basis for comparison, and not the lower-rise adjacent and neighboring properties that were rezoned as part of the East Village rezoning in 2008 to protect that neighborhood’s scale and character.

As for what constitutes a self-imposed hardship, an example would be a developer having their zoning lots made smaller, and then applying for a variance saying their building footprint is too small to build within the allowable zoning and still make a reasonable return.

And finally, the BSA considers whether a requested variance is the minimum necessary.  Is the applicant asking to build four stories higher when they really only need two to make a “reasonable return?”

Citizens Union reviewed  108 decisions made by the BSA in 2011 and 2012, and found that they ruled in favor of the applicant 97 percent of the time, often over the objections of local community boards.  Needless to say, there is not always agreement about whether or not the BSA makes the right decisions regarding these variance applications.  In fact, over the years there have been a few efforts aimed at reforming the BSA.

One would re-establish a review process over variance and special permits decisions by the City Council (until 1989, this power was held by the old Board of Estimate).

Another piece of proposed legislation would expand the number of BSA Commissioners from five to thirteen, with the eight additional members to be appointed, one each, by the Borough examplePresidents, Public Advocate, Comptroller and City Council. Another city entity that operates out of the public limelight, the Franchise Concession and Review Committee, is comprised of six members: four appointed by the Mayor, one by the City Comptroller, and representatives of the five Borough Presidents who share one vote, which is allocated according to the location of the franchise or concession at hand.

Some time ago the Municipal Art Society issued an informative report Zoning Variances And the New York City Board of Standards and Appeals.  The report continues to have relevance, including recommendations like “give greater importance to testimony and evidence from parties opposing the variance”.

For now, the only way to appeal a BSA decision is by filing an Article 78 proceeding, a potentially onerous and costly route available to few within the current 30 day time-frame allowed to bring such a case before the New York State Supreme Court.

Want to find out more about what the BSA is doing and how?  You can follow-them on YouTube to see their hearings, decisions, and executive sessions, or check the BSA agenda here that identifies the addresses of proposals they are reviewing.  Generally, if you own a business or property, or live within 400′ feet of such a site you are supposed to be notified directly any such application.  The Community Board is informed of all such proposals in their geographic area.  Currently the BSA does not have an email notification list for the public to receive updates, so those are the best ways to stay tuned to the machinations of the BSA.

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Harry Bubbins