Sunday, March 26, 2017

Abolish the Board of Standards and Appeals/BSA! by City Councilman Tony Avella

Dateline : Thursday, August 07, 2008

Abolish the Board of Standards and Appeals!
By City Council Member Tony Avella

If the framers of the Constitution/Declaration of
Independence were still alive today, I am confident
they would cite the operation and existence of the
City’s Board of Standards and Appeals (BSA) as a
perfect example of unrepresentative government.

It is time for this unresponsive, undemocratic bureaucratic
body to go!

For many New Yorkers, BSA is a totally unknown entity,
yet its impact is being felt in every neighborhood in this City.
A quasi-judicial agency, BSA is comprised of five
commissioners appointed by the mayor for six-year terms
to, in large part, issue variances to the zoning code.

It is the implementation of this responsibility that has
irked, frustrated and outright angered elected officials,
community boards and residents.

The original mission of BSA was to provide a relief valve
for property owners in those rare circumstances where
existing zoning regulations would prohibit them from
reasonably developing their property. I stress the
word “rare.”

Unfortunately, BSA has been allowed to mushroom into a
huge loophole for developers who want to circumvent
the law. For far too long developers have used BSA as
“an old boys network” where a handful of law firms
represent hundreds of clients/developers trying to
build in excess of existing building and zoning code
requirements.

While the borough presidents and community boards
routinely submit comments on variance applications,
their opinions are only advisory and often dismissed by BSA.

Despite BSA’s assertions to the contrary, borough
president and community board recommendations
are generally only successful in achieving very minor
changes to original plans. It is fascinating to note that
City Council members have no official role in the
process other than to receive a copy of the application.

When reviewing applications, BSA must evaluate the
request in terms of the following five criteria:

* Does the unique condition of the property prevent
reasonable development?
* Would unique property conditions prevent an owner
from obtaining a reasonable financial return?
* Does the variance, if granted, alter the essential
character of the neighborhood?
* Is the situation the result of a self-imposed hardship?
(In other words – you cannot buy a property knowing
the restrictions and then claim hardship.)
* Is the variance requested the minimum necessary
to afford relief?

Unfortunately, BSA routinely disregards these guidelines.
The self-imposed hardship restriction is rarely enforced.
The BSA requirement that the variance will not alter the
character of the neighborhood is a joke! It is never really
considered.

And why does the city, through BSA, reward developers
for making a bad financial decision. If you own any other
type of business in this city and make a bad investment
or your business fails, the city does not bail you out. But,
BSA will grant a financial hardship variance for developers
who make poor judgments or risky investments.

This practice clearly demonstrates the huge political
influence that the real estate industry enjoys in this city.
It is a foolproof system that rescues developers from
their own incompetence and investment mistakes.

To justify their favorable actions towards developers,
BSA will frequently rely on their “quasi-judicial” status
as a defense. This convenient excuse provides political
cover for their lack of common sense and failure to
adhere to the five variance criteria. Yet, the
qualifications for appointment to the board say
nothing about being an attorney.

The only qualifications mentioned in the City Charter
are that one commissioner shall be a registered
architect with at least 10 years’ experience as an
engineer and one shall be a planner with professional
qualifications and with at least 10 years’ experience
as a planner.

Why is there no requirement that the Commissioners
have legal experience? Because it was never meant to
be the final legal arbiter of these land use issues.

Ever since the old Board of Estimate was eliminated, the
only recourse for New Yorkers to appeal BSA decisions is
to file an Article 78 lawsuit against the city – a time consuming
and expensive proposition. Good luck in trying to get
satisfaction by that route!

When the Board of Estimate was in existence, BSA decisions
could be appealed to that legislative body. Under that
system, at least New Yorkers had the opportunity to
press their case for justice before officials elected by the
people as opposed to the appointed bureaucrats on BSA.

Since taking office in January of 2002, I have authored
several pieces of legislation in an attempt to reform this
agency. Unfortunately, all of them are languishing in
the City Council as a direct result of the pressure
exerted by the real estate industry and the opposition
from the Mayor’s Administration.

In order to address the lack of oversight and an
appeal process, I introduced Intro. 261/2006. This
legislation would re-establish the review process over
variance and special permits decisions, previously
held by the former Board of Estimate, under the
auspices of the City Council.

The City Council already has jurisdiction in land use
matters under the Uniform Land Use Review
Procedure (ULURP). Adding this review process
would strengthen the ULURP procedure and add
balance to this area of land use decision-making.

I authored two other bills in a further attempt to
address the total control of the mayor in appointing
members to the board.

Intro. 263/2006, if enacted, would expand the
number of BSA commissioners from five to thirteen,
with the eight additional members to be appointed,
one each, by the borough presidents, public advocate,
comptroller and City Council.

The five mayoral appointees would remain; but their
voices would be tempered by those of the eight additional
members. Obviously, this would enable elected officials to
better serve their constituents by having direct
representation on the board.

As a companion bill to Intro. 263, I introduced Intro.
262/2006, which would require that all variance and
special permit decisions by BSA be made by a
two-thirds majority of the quorum present and voting.
Once the membership of BSA is expanded to 13 members,
requiring a two-thirds majority vote would ensure that
decisions of such magnitude are addressed by a
substantial majority of the board.

This past February, I introduced Intro. 695/2008,
which would require one of the members of BSA to
be a financial analyst with professional qualifications.
Since one of the five variance criteria involves the
review of an alleged financial hardship, it only makes
sense to have a member of the Board who has the
financial background to determine the legitimacy of
any such claim by a developer.

I am also in the process of writing legislation that
would change the statute of limitations for filing
an Article 78 proceeding challenging BSA decisions,
from thirty days to four months.

The current 30-day time frame presents an unnecessarily
harsh procedural hurdle. The very short time frame within
which an Article 78 petition must be filed makes such challenges extremely difficult to execute due to the cost and extensive preparation that is required in bringing these actions before the Supreme Court.

The majority of Article 78 BSA cases are brought by
aggrieved citizens who need a significant amount of
time to come up with funds to retain counsel, and for
counsel to properly prepare the necessary petitions and
accompanying documents that must be filed. Making this
change in the law would provide residents and community
groups the necessary time to properly develop and file an
Article 78.

The passage of any of these bills would make a
significant impact on how BSA operates and allow for
additional community input and a more balanced
decision making process.
Having said that, I have come to believe that BSA
decisions are so skewed in favor of developers that
the entire system must be scrapped.

After personally testifying before the board on
numerous variance applications on behalf of the community,
not only those within my City Council district, but other neighborhoods/boroughs as well, I have come to realize
that the entire process is a charade.

It is extremely disheartening to watch neighborhood
residents travel to the BSA office in lower Manhattan
for hearing after hearing to contest a variance application,
only to see the commissioners vote in unison to approve the application.

It has become a BSA routine; whereby multiple hearings are
held on an item until; it would appear, the community is
simply worn down. It is almost impossible for the average
person to continuously take time off from work or other
duties to fight the developers.

In the final analysis, while most people do not know
this
agency even exists, it has had and continues to have
a
dramatic and damaging effect on the residential
character of neighborhoods throughout our city by
allowing developers to circumvent the zoning – in many
cases ruining the quality of
life for millions of New Yorkers. It is time to end
this sham and close what is the biggest loophole for
developers.


Abolish the Board of Standards and Appeals!

“Abolish the Board of Standards and Appeals!”
pub. in the Queens
Ledger by Tony Avella 8/7/2008.