Variances: How To Undermine Zoning and Make a Profit

Gotham Gazette

The Place for New York Policy and politics

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

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.

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.

  Gotham Gazette: Searchlight: Council's Budget Response JUMP TO YOUR DISTRICT


The New York City Council proposed a city budget that would spend $350 million more than the fiscal plan Mayor Michael Bloomberg outlined in January. It would also offer more tax breaks to businesses, renters, and low-income New Yorkers.

The council's response to the mayor's $45 billion budget is a usual part of the budget process. However, this year, it was more elaborate and detailed than in the past. For the last two years, the mayor and the City Council have been faced with enormous $5 billion deficits. This year, there is a projected $1.4 billion surplus, and Mayor Bloomberg and City Council Speaker Gifford Miller are battling over how to spend it.

The mayor and the council will continue negotiations in upcoming months and both sides must agree on a budget before the next fiscal year in July.

Money for Schools, Youth, and Firehouses
The council argues that the city is in a better financial situation than the mayor admits and that more money should go to senior centers, libraries, summer youth jobs, and college scholarships and to help low-income New Yorkers.

The main component in the council's spending plan is a $37.5 million effort to reduce class size. The plan aims to reduce class size from 25 to 20 students in 567 kindergarten through third grade classrooms. The council's plan for smaller classrooms is a direct response to Mayor Bloomberg's policy of holding back third-graders who do not meet education standards.

"Fixing our schools is first about making a real commitment to early intervention to give kids the tools they need to succeed from the start," Miller said.

In addition, the council proposes spending an additional:
-$145 million to guarantee private bus service.
-$30 million to restore six and seven day library service.
-$12 million for senior citizen centers.
-$11 million for summer youth job programs.
-$10 million to create more day care slots.
-$8 million to reopen six firehouses that the mayor closed last year.
-$6 million for special education teacher development.
-$5.5 million in AIDS/HIV programs.
-$2 million for a pre-kindergarten pilot program.
-$2 million for district attorneys.

Spreading the Tax Cuts Around
In 2002, when the city faced a deficit, the mayor and the City Council agreed to raise the property tax 18.5 percent to help balance the budget. Now the two sides are battling over how to give back.

Mayor Bloomberg's tax cut plan would give a $400 annual tax rebate to owners of houses, condos, and co-ops regardless of the value of the property. Business owners and landlords of large buildings, however, would not be eligible.

Miller proposes cutting property taxes by two percent for all residents, businesses and property owners. A single-family homeowner with a $400,000 house would get about $50, an owner of a condo of the same value would get about $125 and the average retail store would receive a $520 rebate.

Miller argues that Bloomberg's rebate would only apply to 20 percent of the property owners in the city. By cutting property taxes for landlords, the speaker contends, even those who rent their apartments could see their rent decrease by about $45 a year.

The council also wants to eliminate the entire 18.5 percent property tax increase for 140,000 senior citizens on fixed incomes. And the council wants to create a version of the earned income tax credit for low-income New Yorkers. Under the plan, a family of four making $25,000 a year would get $150 back from the city.

Bloomberg has called Miller's plan a tax break for "big corporations and big landlords." Miller has called Bloomberg's plan "a gimmick straight out of the Bush playbook."

Bars, Trees, and Parking Tickets
In addition to reducing property taxes, the council also proposed several programs to reduce fines and lower costs for New Yorkers.

The council wants to give $11 million in tax breaks to bars and restaurants that may have seen a decline in business after the smoking ban was instituted.

Another program would give $50 for homeowners who may have to pay for pruning trees near sidewalks. It would cost the city $5 million.

And the council wants to reduce parking tickets from $115 to $90.

Trying the Commuter Tax - Again
As in the past, the City Council called on the State Legislature in Albany to institute a commuter tax, which was repealed in 1999.

The council's commuter tax would impose a 1.1 percent income tax on the 800,000 people who live outside of the city, but commute in for work. The council estimates the tax would generate $1 billion in revenue, which it would use for building new schools and affordable housing.

Last year, Mayor Bloomberg called for a larger commuter tax, but lawmakers in Albany opposed it. The mayor did not include a commuter tax in this year's budget.

A Rainy Day Fund
The council also wants the State Legislature to approve a $100 million "rainy day" fund, which would allow the city to put away money for a time of extreme fiscal crisis. Currently state law prevents such an action.

This proposal - and all of the tax cuts - would require state approval.

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