For years now, community boards and other civic groups have decried the rampant use of zoning variances to allow for big-scale real estate development projects that would otherwise be illegal. Now, they may have too much of a good thing: two very different proposals to fix the Board of Standards and Appeals.
On April 19, Councilmember Tony Avella formally introduced a plan to the City Council Land Use Committee that would give the council the power to review all of the BSA’s decisions. Meanwhile, the Municipal Art Society began looking for a councilmember to sponsor the reform ideas they introduced in March, which involve changing the operations of the BSA itself.
While these two tracks are not in direct conflict, as both Avella and the Society hastened to point out, neither have they endorsed each other’s plans.
The BSA’s main job is to review requests from landowners for “variances,” permits to build contrary to the zoning code. Lately, many observers, including Avella and the Municipal Art Society, have concluded that the Board is far too permissive.
According to a two-year study conducted by the Society, 93 percent of the variance applications the BSA ruled on between 2001 and 2002 were approved. “It’s ridiculous,” Avella said. “The BSA is absolutely a power unto itself. They are out of control.” The danger, he and others agree, in allowing so many variances is that the character of entire neighborhoods are being transformed piecemeal rather than by plan—and without the community input required by a formal rezoning.
In the Municipal Art Society report, the authors made several recommendations for reform of the BSA: strengthening the guidelines for reviewing and granting variances, putting finance and real estate experts on the board and improving communication between the board and City Planning. “These immediate legislative changes would vastly improve the process,” said lead author Christopher Rizzo.
Avella says they don’t go far enough. “I’m happy they did their report,” he said, “because it points to the need for reform.” The problem, he asserts, is not with the guidelines themselves, but with the BSA’s casual approach to enforcing them.
“The real solution here is oversight,” Avella said. He has proposed giving the City Council essentially appellate review over the BSA’s decisions. He argues that if the council can overturn insupportable variances, then the board will be more cognizant of community concerns.
Not everyone agrees that the City Council is the best body to provide oversight. Sylvia Deutsch, former chair of the BSA and the City Planning Commission, expressed concerns that council review would introduce provincial politics into variance decisions without really addressing the problems. “If there is something wrong with the BSA, then one should look at its marching orders, rather than imposing another layer of review.”
Some even consider the idea a threat to the separation of powers. Sheldon Lobel, a land-use lawyer for 35 years, said, “It’s not proper for a legislative body to have the authority to review a quasi-judicial body.” He argued that council members already get to review mayoral appointments to the BSA and should not also get to review their independent decisions.
Until Speaker Gifford Miller weighs in on this proposal, its future remains uncertain. And even if the speaker is supportive, Avella’s plan will face a long battle because it requires a change to the city charter that must be approved by voters. The Society’s proposals, because they are legislative, could be enacted by a simple vote of the council.