For more than a year now, a war has raged over the fate of a former warehouse in Red Hook. The developers of 160 Imlay Street have sought to transform the six-story building into apartments. They enlisted a team of lawyers, consultants, real estate agents and architects to convince the city’s Board of Standards and Appeals (BSA) to grant them the zoning variance necessary to convert an industrial site into a residential one.
The Red Hook/Gowanus Chamber of Commerce responded by hiring its own lawyer, who argued the conversion would cost the neighborhood desperately needed jobs. The developers had civic leaders testify before the BSA that they wanted fewer trucks clogging up their streets. The Red Hook group and its members, many of them industrial companies, argued that the neighborhood needed jobs above all else. Each side gave the BSA hundreds of pages of documents to back up their case.
Two days before Christmas, the board voted 3 to 1 to approve the variance.
For opponents of the variance, the result was disappointing but not surprising. For decades, leaders of community organizations have decried BSA decisions, saying the board almost always sides with developers when it comes to special permit requests and appeals on zoning laws.
With the city in the midst of a development boom, neighborhood opposition has swelled into something of a citywide movement against the BSA. In Brooklyn, community leaders say the BSA’s decisions are killing off what remains of industry. In Queens, civic groups believe the agency is bringing overdevelopment to low-rise neighborhoods. And in Manhattan, residents accuse the board of allowing high-rise buildings in the few small-scale areas left on the island. Some have developed such a strong disdain for the BSA that they talk about the agency as if it were an instrument of the devil. (It doesn’t help matters that the BSA is listed under Section 666 of the City Charter).
As residents citywide have become more aware of the impact of the agency’s decisions, politicians have been paying attention, too. Bayside Councilmember Tony Avella has gone the furthest, introducing legislation that would allow the City Council to override the BSA’s decisions. “The BSA has become a power unto itself with no oversight of any sort,” says Avella, who chairs the Council’s Zoning and Franchises Committee. “They have been issuing very questionable decisions that in many cases vary from their own requirements. This type of power should only be invested in elected officials and not appointed bureaucrats.”
But while making the BSA more publicly accountable for its decisions could help communities better control their own destinies, Avella is facing a steep uphill battle. The BSA’s powers are deeply rooted in property law–in centuries-old, constitutionally supported protections for the rights of landowners to do what they wish with their real estate. And to give the City Council authority over BSA decisions, Avella doesn’t need just the Council’s approval, and most likely the mayor’s–he’ll also have to convince the public to vote for a change to the City Charter.
Be careful what you wish for, scholars of city planning history might tell Avella and his supporters. When New York City established its pioneering zoning code back in 1916, which limited building height and required “setbacks” to preserve light and air, property owners challenged the laws in court. The result was a legal compromise: The city could keep its zoning code if it also provided a forum where landowners could plead for exemptions, or “variances.” New York’s zoning code, including the BSA and its variances, became a model for cities across the country. Says Professor Jerold Kayden, an attorney and professor of Urban Planning and Design at Harvard who has authored books on New York City zoning, variances exist “to further a higher ideal, a sense of fairness.”
To the uninitiated, the BSA looks like a rubber- stamp agency. To receive a variance, an applicant must meet a series of findings, outlined in the city’s zoning code. Most significantly, there must be “practical difficulties or unnecessary hardship” in developing according to the city’s zoning code, which would prevent the owner from making a decent profit. Variances cannot “alter the essential character of the neighborhood” or “be detrimental to the public welfare,” and the hardship cannot be self-created. Often, an applicant must provide a financial analysis and environmental assessment to back up his or her case.
Last year, the board voted 198 times on whether or not to grant new variances or special permits. It rejected only seven items, making for an approval rate of 96.5 percent.
But this number is somewhat misleading. Applications can take a year or more to be approved, and proposals are constantly altered as applicants try to comply with the BSA’s wishes. Sometimes, an applicant’s attorney realizes a case cannot be won and drops it. In 2003, 31 applications were withdrawn or dismissed. When the dropped cases are considered, the BSA’s approval rate comes down to 83.4 percent.
Many prospective variances do not even make it to the BSA. Almost all applicants consult a small clique of land use attorneys, engineers and consultants who know the ins and outs of the BSA like no one else. While the commissioners on the five-member board are limited to one six-year term, many attorneys have been practicing for decades. They know exactly which cases can be won and which cannot, and will reject the more outlandish attempts at getting around zoning laws. “I get one request a week, and I only take 20 a year,” says Harold Weinberg, an engineer who has specialized in BSA applications since 1962.
Other applicants get cold feet when they realize the time and money involved. Weinberg charges a minimum of $15,000 a case, and expenses for some attorneys can run even higher. Application fees range from $275 to hundreds of thousands of dollars. Wellington Chen, a former BSA commissioner who now works for a Queens developer, claims it is “far easier to launch an intercontinental ballistic missile than it is to launch a variance.”
“No one wants to go through a variance process,” Chen says. “It’s a public humiliation process. You have so many hurdles to go through–attorneys, financial experts, cartographers–before you even get there.”
Most applications before the BSA are relatively simple–like the homeowner who wants to add an extension. Others are for health clubs and gas stations seeking the proper permits. These arouse little controversy.
But there are always cases that touch a nerve in communities. Avella cites two examples in his district. In Bayside, the BSA approved plans for the 8,789-square-foot Chabad of Northeast Queens, a synagogue that neighbors fear will loom over homes on the block. Another decision allowed the construction of a Walgreens in College Point–without a required parking lot.
While Queens residents want to maintain the suburban character of their neighborhoods, advocates in northern Brooklyn want the opposite: to halt the conversion of old factories into apartments, and preserve what industrial jobs are left. Assemblymember Vito Lopez has sought to legislate additional hurdles for developers who want to convert industrial buildings. “Light manufacturing jobs, which are entry-level jobs, are very significant and important for the economic development of my community,” explains Lopez. In much of Williamsburg, it’s already too late: A slew of variances in the 1990s helped change industrial buildings to residential ones, and real estate prices for commercial buildings soon rose beyond manufacturers’ reach. With much of the neighborhood already converted, the Bloomberg administration is now working to rezone the Williamsburg waterfront into a largely residential area.
When critics charge that the BSA is a tool of mayors beholden to real estate interests, they have some justification. Traditionally, real estate is the biggest contributor to mayoral campaigns, and mayors appoint the BSA’s commissioners. Mayors Giuliani and Bloomberg have both called for new development throughout the city, including, under Bloomberg, a plan to build tens of thousands of units of new housing. And many of the commissioners have worked for developers in the past or have close ties to the real estate industry.
Historically, BSA commissioners have bowed to political pressure from city officials. Robert Moses supposedly ordered the board to approve Frank Lloyd Wright’s plan for the Guggenheim Museum, angering Manhattan civic groups. In the past, attorneys with strong political connections were known to have their way with the BSA.
Those days are over, assert lawyers who now deal with the board. With his personal fortune, Bloomberg does not rely on real estate contributions. He recently appointed Meenakshi Srinivasan, a planner with the Department of City Planning, as chair of the BSA, and some expect Srinivasan to be tougher on developers. “This administration remains aloof,” Weinberg says.
Most cases simply boil down to the details of zoning laws, and those details favor developers. In Flushing, for example, residents felt that a church that had torn down historic homes to build a parking lot should not then be granted a permit for the lot. But zoning law for parking lots doesn’t address the character or history of an applicant–it’s all about traffic flow. When the commissioners concluded the new lot would not have a negative impact on traffic, they approved it.
Pat Pacifico, executive director of the BSA, is well aware that his agency’s decisions are often controversial. But he is firm in his belief that all of those decisions are grounded in law. “The law is the law,” Pacifico said. “Look at the [cases], and show me where this board has been wrong. We act within the law, and we stand up within the law. That’s our job. That’s our mandate.”
But many community and industrial advocates are convinced the board remains too lenient, particularly when it comes to developers’ claims that they cannot find suitable industrial tenants. And not everyone is convinced that political pressure remains absent from the BSA’s decisions.
In the case of 160 Imlay Street, which adjoins a port area that the city’s economic development agency is assessing for redevelopment, the developers attempted to prove that they could not make money off the building without a variance. The opposition noted that industry was on the rebound in Red Hook, and the New York Industrial Retention Network provided the BSA with a list of 15 companies that were looking for more space in the area. The developers, however, informed the board that they had tried and failed to market the building for telecommunications. They also said that the building, constructed in 1913, was obsolete and needed repairs.
At first, the board grilled the applicants. Then-chair James Chin, noting the developers were well aware of the condition of the building when they bought it two years earlier, declared that it was “not the purpose of the board” to insure that developers made a profit off a real estate “gamble.” Commissioner Peter Caliendo criticized the developers for not marketing the building for other uses. “There is a whole host of permitted uses that were not analyzed,” he said. The authors of the developer’s analysis, Freeman Frazier & Associates, later responded by saying other uses were not “financially viable.” Freeman Frazier also argued that their clients would make only a 1.5 percent profit by renovating the building for industrial use. Their figure, however, was based on renovation costs of $5.5 million, an estimate that Mark Pomykacz, a real estate appraiser hired by the opposition, found to be $2.5 million too high.
But despite the board’s initial doubts, only Chin voted against the variance.
Community observers were mystified about why the board ultimately accepted the developers’ claim of financial hardship as legitimate. “Initially, we were encouraged by the reception [the developers] received at the board,” says Craig Hammerman, district manager of Brooklyn’s Community Board 6. “We thought that [the commissioners] were skeptical and we felt that they were taking up all the right points. Somewhere in the process, something happened.”
The Red Hook/Gowanus Chamber of Commerce has filed a challenge in State Supreme Court. The courts generally defer to the BSA, but do overturn the agency’s decisions if they go against legal precedent.
Court review may help community opponents halt the Imlay Street conversion. But typically, according to former commissioner Wellington Chen, the threat of court interference makes commissioners reluctant to let community sentiment sway them. “I am not happy with all the decisions I made, but the public doesn’t understand that sometimes, my hands are tied,” Chen says. “Just because the community reaction is stronger in one area, you can’t deny a case. In the Constitution, you cannot take anybody’s property without just compensation. There is a fundamental right for the owner to do something with his property.”
Alexander Dworkowitz is a reporter for theHartford Advocate.