Volume 73, Number 50 | April 21 - 27, 2004

Call for City Council review of appeals board’s variances

By Albert Amateau

Public officials and community representatives who have long-standing grievances with the Board of Standards and Appeals for granting variances that allow developers to build projects that exceed criteria mandated by the city zoning resolution welcomed a proposal on Monday that would give the City Council an option to review B.S.A. decisions.

Community board members from Manhattan and Queens and neighborhood preservation advocates from Lower Manhattan and the Village gave their wholehearted support at a Monday hearing to the proposal by City Councilmember Tony Avella of Queens for a City Charter change calling for City Council review of the B.S.A.

But lawyers who represent developers at the Board of Standards and Appeals denounced the proposal, saying it would politicize a process that was established to safeguard the 1916 zoning resolution. The lawyers also pointed out that civic groups that disagree with the B.S.A could challenge the rulings in court.

However, Avella, chairperson of the Zoning Subcommittee of the Council Land Use Committee, replied that B.S.A. is itself a political body whose five commissioners are appointed by the mayor. “Unfortunately, the B.S.A. continues to grant variances and special permits in direct contradiction to recommendations of community boards, civic groups and elected officials,” said Avella.

“No government body comprised solely of appointed positions should wield this kind of power, which should be vested in elected officials who are responsive to the desires and opinions of those they represent,” he said.

However, a City Charter change requires approval by voters in a referendum, Avella said the day after the hearing. He acknowledged that the mayor controls which issues are put to voters through his appointments to the City Charter Revision Commission. Avella said the use of the Charter Revision Commission to keep referendums such as class size off the ballot was itself an abuse of power.

“I asked the mayor’s liaison to our committee last week about support for the [B.S.A.] change but they hadn’t taken a position yet,” said Avella. Jennifer Falk, of Mayor Bloomberg’s press office who took a call from The Villager on Tuesday asking for the mayor’s position on the issue, did not call back with a response by press time.

Many at the Monday hearing agreed that B.S.A. rulings often amount to rezoning outside of the required City Planning process.

“They’ve become the primary port of entry for zoning changes, bypassing the City Planning Commission,” said David Gruber, a member of the South Village Landmark Association. “The B.S.A. has become a mini-state that’s run amok. It is not the quasi-judicial body that lawyers who practice before it claim,” he added.

Gruber was responding to Sheldon Lobell, a lawyer who specializes in B.S.A. cases, who said that allowing a legislative body like the Council to review rulings by an appeals board like the B.S.A. would violate the principle of separation of the legislative, executive and judicial powers of government. Lobell also said the B.S.A. is often very responsive to community concerns.

Nevertheless, supporters far outnumbered opponents of the proposal.

“What we are facing is an abuse of power,” said Zack Winestine, co-chairperson of the Greenwich Village Community Task Force. “The problem is wealthy developers coming to make a fast buck at the expense of the zoning process,” Winestine said. He cited a B.S.A. variance that resulted in the Morton Sq. residential complex on a former manufacturing block bounded by Morton, Leroy, Washington and West Sts. that “changed a manufacturing district into a residential district.”

Albert Bennett, of the Morton St. Block Association, also cited the decision that resulted in the Morton Sq. complex as devastating to a neighborhood that was a delicate balance of manufacturing, residential and commercial uses. “I look forward to your help in curbing these unwarranted variances,” Bennett said.

The B.S.A. is mandated to consider a variance request in the light of five findings; A) there are unique conditions in the property, its shape or underlying conditions like water or bedrock outcropping; B) there is no reasonable expectation of a fair return on investment; C) the variance must be compatible with the character of a community; D) the hardship must not be created by the developer seeking the variance, and E) the application must be for the minimum variance that would cure the hardship.

Richard Barrett, of the Canal West Coalition, said the argument that City Council oversight of the B.S.A. would politicize a semi-judicial process was false. “Even in 1916 when the B.S.A. was established it was a problematic board,” he said. The five findings necessary for a variance were part of a legislative amendment imposed because of loosely defined variance criteria, he said. In an interview later, Barrett questioned whether a City Charter change was the only way to impose a review of B.S.A. decisions.

Barrett also noted that testimony before the B.S.A. is not sworn testimony as it is in court or in boards like the B.S.A. in other cities.

“Developers tend to overestimate the cost of building and underestimate the end value of a project,” Barrett said. “If the B.S.A. went back to a project that was built under the variance granted, they’d see the discrepancies,” he added.

Going to court to challenge a B.S.A. ruling is not a good idea, according to Barrett. “The courts are not equipped to judge engineering decisions or financial analyses,” he said.

Assemblymember Deborah Glick submitted written testimony in favor of the proposal for Council oversight of the B.S.A. “As the assemblymember representing the neighborhoods of Union Sq., Noho, Soho, Tribeca and the Village, I have witnessed numerous instances of B.S.A.’s ineffectiveness, or perhaps unwillingness, to stop the intrusion of inappropriate buildings into our neighborhood,” Glick said. “In the case of 408 Greenwich St., the B.S.A. granted a bulk variance to allow a tower nearly twice the height of neighboring buildings. Rewarding cynical developers by permitting them to claim hardship for conditions known and existing at the time they purchase a property is a break of public trust,” she said.

However, Howard Weiss, attorney for the developer of 408 Greenwich St., said later that the project had the approval of the Landmarks Preservation Commission and was supported by the Lower Manhattan Development Corp. He called it an exemplary project that showed faith in the future of Tribeca and Lower Manhattan.

Doris Diether, a well-known zoning consultant and a member of Community Board 2 also submitted written testimony supporting Council oversight of the B.S.A. She likened the proposal to the City Council’s ability to choose to review City Planning zoning actions under the Uniform Land Use Review Procedure, a process that works very well, she said. “Many of the arguments used by applicants such as unique conditions are not always adequately challenged by the B.S.A.,” Diether said. She also said the B.S.A. spends a lot more time on findings about the unique conditions of a property and the likelihood of realizing a reasonable return on investment than on any of the other findings.

“The impact on the community is usually the least concern to the Board of Standards and Appeals,” Diether observed.

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