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Variances: How To Undermine Zoning and Make a Profit

by Tom Angotti, Oct 22, 2003
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"They're more concerned with profit than improving the neighborhood," snapped Georgina Bailey, a resident of Astor Row in Harlem.

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Bailey went with her neighbors and representatives of Manhattan's Community Board 10 to speak out against the proposal to build a 14-story building with 102 apartments on a site located at Astor Row and 130th Street. The Harlem residents testified at a recent meeting of the Board of Standards and Appeals (BSA), a little-known body that has the power to grant property owners exemptions from the city's zoning regulations.

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The Harlem contingent brightened up the board hearing room, a dark cave in an office building at 40 Rector Street in Manhattan, nestled in the protective shadows of Wall Street. The chambers are otherwise decorated with well- groomed lawyers in serious business suits.

The developer in this case, Uptown Partners, Inc., went to the board because they want to build a larger and taller building than would be otherwise allowed under the current zoning. They started out earlier this year asking to build a 24-story building with a total of 222,013 square feet. After meeting community opposition and several rounds of negotiations, they cut down their proposal to 19 stories, then 16, and now 14 stories. The local residents are still outraged because they think the new building will be entirely out of context with the surrounding blocks, where most buildings are no more than five stories high.

In their first proposal Uptown Partners claimed that they had to have at least 24 stories in order to make the project economically feasible. The residents look back at this claim and say that it was false because now the developer is willing to settle for 14 stories while at the same time saying they now need at least 14 stories to make the numbers work. This proves, they say, that the motive is more profit.

The developer also says that unique sub-soil conditions on the site make it necessary to have a bigger building in order to recover the high cost of site development. The neighbors say that soil conditions are no different than they are for most adjacent properties. And if every property owner in the area can exceed the zoning limits, then what good is zoning?

The Board of Standards And Appeals and Variances

The Board of Standards and Appeals has five members, all appointed by the mayor for terms of six years. One must be an engineer, one an architect, and one a city planner. No more than two can come from any one borough. But judging from the chummy banter among the guys in the bpard chambers, it would appear that testosterone level is a membership criterion. Women are permitted in this club, but apparently only men can call each other by their first names. See the board's own explanation of how it works.

The board grants exceptions to the zoning law know as variances. The property owner must show that they meet five conditions before they can get a variance. Briefly, they are: 1) that there are unique physical conditions on the site (for example, an odd-shaped lot); 2) the variance is needed so the property owner can get a "reasonable return" on their investment; 3) it won't alter the "essential character" of the neighborhood; 4) the economic hardship wasn't created by the owner; and 5) the change being requested is the minimum necessary to relieve the owner of their hardship. The board also grants special permits in a wide array of cases. The full powers of the board are set out in the city's Zoning Resolution (in pdf format).

Too Many Variances

Neighborhoods throughout the city have complained long and hard about variances and the ability of the Board of Standards and Appeals to hand them out as if they were free parking permits. Actually, they're hardly free. Lawyers charge clients dearly for their knowledge of the arcane language spoken at the board. The legal gurus know what to say as "proof" that each one of the five conditions set out in the law have been met.

The main problem is that there's no limit to the variances that the board can dole out in any neighborhood. As a result, entire neighborhoods have been developed in ways not allowed in the zoning.

For example, in the last decade speculators moved into the West Village, converting industrial buildings one-by-one with the blessing of the Board of Standards and Appeals. This speeded up the gentrification process. Industrial properties tend to restrain the rise in property values and rents and provide needed jobs for working people. When industry goes, so do the jobs and many options for affordable housing for workers. During this saga, the city's planning department dozed away and then, when it was too late, changed the zoning. But the zoning change only recognized the developers' windfall after the fact (can you call this planning?) and opened the way for even more development opportunities in the future.

More recently, speculators in Bedford-Stuyvesant (Brooklyn's Community Board 3), moved into an industrially-zoned area en masse, got a truckload of variances, and built apartments that are not allowed by zoning. The effect has been to push out businesses and jobs in a low-income neighborhood with relatively high levels of unemployment. By the time the community realized they needed to have a housing plan it was already too late. Once again, the City Planning Department moved in to mop up after the storm.

Community Planning versus Ad Hoc Planning

In the long run, the Board of Standards and Appeals engages in ad hoc planning, or planning by variance. That should not be its function. The board was created along with zoning regulations to address unique circumstances not anticipated by zoning that make it impossible for some individual property owners to actually do what the zoning intended them to do. The board is a quasi-judicial body that, if working properly, will resolve minor disputes without expensive and time-consuming court battles. But the Board of Standards and Appeals was not created as a planning body. That's the role of the City Planning Commission and its support agency, the Department of City Planning.

The more fundamental problem is that, with only a few exceptions, the city's official planning bodies don't have plans for neighborhoods. In the absence of community plans, it's not surprising that ad hoc planning easily takes over. The reliance of the Department of City Planning on zoning also lends itself to an ad hoc approach. Zoning rules get changed to accommodate development that is already taking place. It would be far better to have community plans that reflect a consensus about what the future neighborhood should look like. That way "neighborhood character" would be more clearly defined and could guide both the Board of Standards and Appeals on variances, and the City Planning Commission, which is charged with making decisions on land use in the city. If communities could be proactive and say what they do want, then they wouldn't always have to be reactive and say what they don't want.

Alas, neighborhoods are largely sidelined on land use decisions. The votes of community boards on land use issues are strictly advisory. At the BSA, community boards are notified about variance requests, but their input isn't required. The understaffed community boards sometimes don't respond or inform neighborhood groups, whose volunteer members are frequently no match for the three-piece suits in the board chambers.

Tom Angotti is Professor of Urban Affairs & Planning at Hunter College, Editor of Progressive Planning Magazine, and a member of the Task Force on Community- based Planning.


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