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Memo of Analysis Regarding Local Laws to amend the New York City Charter, in relation to actions and procedures for the Board of Standards and Appeals
December 14, 2016
M E M O R A N D U M O F A N A L Y S I S
BILLS: 282, 418, 514, 691, 1200, 1390, 1391, 1392, 1393, 1393
SUBJECT: Local Laws to amend the New York City Charter, in relation to actions and procedures for the Board of Standards and Appeals
PRIME SPONSORS: James G. Van Bramer, Karen Koslowitz, Steven Matteo, Rosie Mendez, Donovan J. Richards, Ben Kallos
The Real Estate Board of New York (REBNY) is a trade association with 17,000 members including builders, owners, residential and commercial brokers and managers and other real estate professionals active in the real estate industry in New York.
We would like to state our concerns with the 10 bills relating to the Board of Standards and Appeals under consideration by the City Council Committee on Governmental Operations. In particular, we are concerned that a number of these bills have only recently been introduced. As a result, there has been insufficient time to consult with our members about the merits of the bills. In these cases, holding a public hearing with such short notice limits meaningful public participation and comments. We at least request that the comment period be kept open to submit additional testimony.
CONTACT: Carl Hum
Senior Vice President of Management Services & Gov. Affairs
Int. 418, 1392: These proposed bills are unnecessarily prescriptive and could undermine the flexibility that is essential to the BSA’s review of individual variance applications. The BSA was established as an independent board to grant “relief” from zoning regulations. Zoning is generally applicable to large areas or many sites and does not account for unique individual parcels of land that can be unduly restricted by regulations. The ability of property owners to apply for a zoning variance reduces the risk of claims of the taking of private property, thereby helping to ensure that zoning regulations are upheld. Intro. 1392 would codify minimum evidentiary requirements for variance applications and create a $25,000 fine for a materially false statement in connection with a variance application. Intro. 282 would require the BSA to promulgate rules in order to establish a formal procedure by which it will consider arguments and evidence submitted by any such party. In its review of applications, the BSA is guided by relevant case law and decades of its own decision making. A review of the BSA’s decisions/resolutions over the last 10 years shows a careful deliberation of arguments and evidence submitted by applicants, community boards, elected officials and community groups, and the rationale for the BSA’s final decision. Mandating evidentiary standards, and requiring procedures for the consideration of arguments and evidence is unnecessary given the BSA’s well-established practices and record of decisions – decisions that, when challenged, are routinely upheld by the courts. A list of evidentiary requirements also ignores the inherent need for flexibility in variance applications, where the request for zoning relief is based on a property’s own unique set of conditions. The BSA is also required by Charter to have a professional engineer, architect and planner, and its staff includes attorneys and planners. Therefore, the BSA and its staff contain the relevant, professional expertise required to determine what information and evidence is necessary for it to render decisions on variance applications.
Int. 282: Requiring the BSA to provide a written explanation when it rules contrary to the recommendation of a community or borough board is not necessary. As noted above, the BSA already provides resolutions that identify the recommendations of the community or borough board and provide detailed rationale of the BSA’s decisions.
Into 691: We also oppose Intro. 691, which would increase the limitation period for commencement of a proceeding to challenge a BSA decision from 30 days to four months. The 30-day limitation period for such challenges has existed for decades and is consistent with the limitation period applicable to zoning boards of appeal throughout New York State pursuant to the State’s Town Law (§ 267-c) and the State’s Village Law (§ 7-712C).
It therefore is clear that the long-established 30-day rule represents a carefully considered and widely applied appropriate balancing of the respective interests of property owners who seek a variance and neighbors who oppose the variance.
From the point of view of a property owner who successfully obtains a variance, the owner will have completed a lengthy public review process. For the owner to actually commence construction usually will require the owner to arrange financing – which may come from multiple sources in the case of a complex project – and to contract with a construction manager or general contractor who in turn will need to assemble and negotiate pricing and other terms with a team of subcontractors and suppliers. Timing is extremely important, and can affect pricing and the availability of personnel with appropriate skills, specialized equipment and materials that must be custom-fabricated for the job. Given these extreme complexities, it is unfair to a property owner (and to investors, lenders, contractors and other persons involved in the project) to require that the owner remain in limbo for up to four months without even knowing whether litigation will be brought to challenge its approvals.
From the point of view of a neighbor who opposes a variance – and equally from the point of view of an owner who wishes to challenge the denial of a variance – 30 days should be sufficient time to commence a legal proceeding with a petition that sets forth the litigant’s basic grounds for attacking the BSA’s decision, and which can be expanded upon at later stages of the lawsuit. Anyone who wishes to commence such a legal proceeding will necessarily have participated in the prior proceedings before the BSA. In fact, a person who did not participate in those BSA proceedings will not have standing to bring a lawsuit to challenge the BSA’s decision. Therefore, any potential litigant will have had a full opportunity to familiarize itself with the issues before the BSA, with the arguments on both sides, and with the evidence before the BSA. The potential litigant also will have had substantial prior warning of when the BSA’s decision can be expected, and what the result is likely to be.
Int. 514: The BSA fee structure already includes an additional charge for applications for an extension of term of a variance that has already expired. The proposed bill to further penalize property owners is unnecessary. The requirement that the BSA send notices to all property owners prior to the expiration of a variance will also be extremely burdensome on the BSA’s small staff, especially considering the thousands of variances that have been issued over the last 100 years.
Int. 1390 and 1392: These bills require the Department of City Planning and the BSA to hire staff with specific qualifications to perform specific functions. Telling agencies how to allocate personnel, even for the best of intentions, can be a harmful constraint on an agency’s ability to allocate staff based on its specific and often changing needs.
Int. 1200: This bill to require the BSA to forward a copy of a variance or special permit application to the local council member is duplicative: Section 1-05.4 of the BSA Rules already require applicants to provide the local council member with a copy of a variance or special permit application within three business days after filing with the BSA.