Despite Criticism, Mayoral Board Grants Nearly All Appeals To Zoning Variances

By Jessica Glazer and Nicholas Wells

The Board of Standards and Appeals. (Photo: Jessica Glazer)

Since Mayor Michael Bloomberg took office in 2002, the Department of City Planning has rezoned more than a third of the city—over 11,000 blocks—in one of the greatest renovations in the city’s history. In this time, one board of five mayoral appointees has approved almost all applications it has received for variances to the zoning code. These variances, which ask for permission to build larger than allowed or erect a residence in a manufacturing district for example, were previously denied by other city agencies like City Planning and the Department of Buildings.

Critics complain that by waving through a high percentage of variances, the board has an outsized impact on the city’s development.

“They are destroying the whole character of neighborhoods around the city and undermining the zoning code,” said State Senator Tony Avella, who recently proposed legislation to amend the City Charter to reorganize the way the commission operates. “They almost never turn down an application no matter how bad it is.”

In 2010 and 2011, the BSA approved about 96 percent of variances it decided upon, not counting those withdrawn or dismissed, and denied about 4 percent.

In 2004, the Municipal Art Society issued a report pointing to what it called “clear problems” with the variance process. Since 2004, the numbers are just gotten worse. The 2004 report questioned the rigor of the Board’s process, pointing to high approval rates, particularly variances clustered in certain neighborhoods, like parts of lower Manhattan and Williamsburg, Brooklyn. The report suggests that this practice negatively impacts community character.

The Municipal Art Society’s report analyzed the number of variance applications heard by the board in 2001 and 2002. The study found that of 137 decided applications, 93 percent were granted. It suggested more board oversight and the inclusion of a financial advisor to the board.

At the time, the board clarified that not all applications heard by the board are decided upon—some are “dismissed” or “withdrawn,” because the applicant chooses not to continue after submitting the application. In 2001 and 2002, 79 percent of all—not just decided—variance applications were granted; in 2010 and 2011, the figure was 85 percent.

After the Municipal Art Society’s report directed focus to the BSA, the percentage of granted variances did drop for a couple years, to an average of 64 percent, before popping back up again. In 2006 the board granted 84 percent of variances. The following years showed a similar rate of approval.

This is not reflective of a lack of rigor, said the board’s Vice Chair, Christopher Collins. Instead, he maintains that the reputation of the board has affected what applications developers decide to file.

“If you ask the practitioners, the lawyers that appear before the board, I think they would tell you that they are very cautious with what they bring,” said Collins. “They only bring cases that have merits before the board.”

Although the numbers of variances fluctuates from year to year, applications have been declining since 2004, when there were 153 applications. In 2011, there were 51. This decline is partly attributable to the slump in the construction market after 2008, but it also reflects the role of the board members, Collins said.

“The law is exactly the same as it was in the past and I think that the only difference is the composition of the board,” he said. Collins and the board’s chair, architect Meenakshi Srinivasan, were both appointed in 2003. Their terms expired in October of 2009, but the mayor has not appointed successors.

The BSA was formed in 1916 to “grant relief” from the city’s zoning code. Variances permit property owners and developers to build beyond the limits set by the Department of City Planning. This could be anything from adding a floor to a private residence, to building a school in a manufacturing district.

Applicants must meet five requirements to get an exception to the zoning code: the lot must have unique physical conditions that cause practical difficulties or unnecessary hardship; the physical conditions prevent reasonable return; the difficulties or hardship cannot have been created by the owner; the variance will not alter the essential character of the neighborhood; and only the minimum variance to provide relief will be granted. The BSA also notes that simply buying property that is not zoned for what an owner wants to build does not count as self-created hardship, as per Section 72-21(d) of the Zoning Resolution.

Often, “practical difficulties and unnecessary hardship” amount to financial strain on owners. The board operates under the assumption that property owners are entitled to “reasonable economic return.”

However, among those required by law to sit on the board – one planner, one architect and one engineer – there is no financial planner. In response, Senator Avella, has introduced a number bills to address these issues.

One bill would require a financial analyst with at least 10 years of experience to sit on the board. Another proposes expanding board membership to include 13 members instead of five. This would add to the board one member appointed by each of the borough presidents, the public advocate, the comptroller, and the City Council.

“This would at least give elected officials representation on the board,” he said. “The mayor right now controls the whole process.”