Volume 16 • Issue 48 | APRIL 23-29, 2004

Council looks to check power of variance granting board

By Albert Amateau

Elected officials and community activists who have long-standing grievances with the Board of Standards and Appeals for granting variances that allow projects to exceed height limits welcomed a proposal on Monday to give the City Council an option to review B.S.A. decisions.

Community board members from Manhattan and Queens and preservation advocates from Lower Manhattan and the Village gave their wholehearted support to the proposal by City Councilmember Tony Avella of Queens to change the City Charter to allow council review of the B.S.A.

Most of the witnesses at the April 19 hearing said B.S.A. rulings were often an abuse of power and amounted to rezoning outside of the required City Planning Department process.

“Community Board 1 takes oversight of land use seriously,” said Paul Goldstein, C.B.1 district manager. “We support development but a clear example of abuses by the B.S.A. is the hardship variance granted for 408 Greenwich St. in Tribeca. Hardship and Tribeca don’t even belong in the same sentence,” Goldstein said, referring to a variance the B.S.A. granted March 30 for a nine-story building on a site zoned for a six-story building in a neighborhood where property value is soaring.

Carole De Saram, a founder of the Tribeca Community Association and a C.B.1 member, also cited the variance granted Samuel Ramirez and Co., a bond dealer, for 408 Greenwich St., calling it an abuse of power. “They’re pushing through variances after three hearings or less. It’s like a candy store. De facto zoning by the B.S.A. is destroying the fabric of neighborhoods,” said De Saram.

Howard Weiss, attorney for the developer of 408 Greenwich St., said in a phone interview later that 408 Greenwich St. was approved by 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.

Avella, chairperson of the Zoning Subcommittee of the Council Land Use Committee, declared that the B.S.A., whose five commissioners are appointed by the mayor, is itself a political body. “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.

Mayor Mike Bloomberg, however, also opposes City Council review of B.S.A. rulings. “This proposal is the antithesis of the purpose of the Board of Standards and Appeals and we don’t feel it’s necessary,” Jennifer Falk, a mayoral spokesperson, said on Wednesday.

Charter changes require voter approval by referendum and Avella acknowledged later that the mayor controls access to the ballot through his appointments to the City Charter Revision Commission. Avella said the use of the Charter Revision Commission to keep referenda such as class size off the ballot was itself an abuse of power.“We intend to get Intro 170 [the B.S.A. proposal] passed by the City Council and then petition the Charter Revision Commission,” Avella said. “No government body comprised solely of appointed positions should wield this kind of power, power which should be vested in elected officials who are responsive to the desires and opinions of those they represent,” he added.

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

Zack Winestine, co-chairperson of the Greenwich Village Community Task Force said, “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.”

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) there is an economic hardship that wasn’t 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.

Doris Diether, a zoning consultant and a member of Community Board 2 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.

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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