Tuesday, November 25, 2008

BSA Madness for Carroll Gardens

We are sorry to report that the BSA granted Mr. Stein the variance today to build Oliver House seven stories high as opposed to the mandates of the new text amendment which would have allowed only 5 stories.

The vote was unanimous on both applications: On the BZY application: the completion of the foundation which was only 20 per cent complete according to the DOB

and the A application which claimed the developer would suffer substantial economic financial loss.

Below we have copied an article from www.gowanuslounge.com about learning more about the BSA.

From GL: WTF is the BSA? Here’s a Chance to Find Out

"Do you know what the Board of Standards and Appeals (BSA) is and what it does? Well, here’s a chance to learn, via a session called “Navigating the BSA that will take place on Monday, December 1. Per an email":

"In New York City, one body has the power to grant exceptions to certain local building laws and regulations on a case-by-case basis: the Board of Standards and Appeals (BSA). Once granted, such special permissions, known as variances, provide building owners and developers with legal, alternative approaches to the city’s Zoning Resolution, Building and Fire Codes, and Multiple Dwelling and LaborLaws. The BSA also hears appeals made by property owners, community groups, elected officials and the like who believe that a given commissioner or agency head has issued a ruling that is illegal.

"Comprised of five mayoral-appointed commissioners, the BSA is considered to be one of the most obscure but powerful bodies in city government. Yet many neighborhood advocates who have opposed or closely monitored construction projects in their neighborhoods have had to appeal to the BSA at one time or another. BSA Vice-Chair Christopher Collins will explain the basic steps of presenting to the Board, from how to navigate their procedures and requirements to how the most effective approach to formulating arguments.

"The Coffee Talk begins at 8:30am and is held at the Neighborhood Preservation Center, 232 East 11th Street, between Second & Third Avenues in Manhattan. All Coffee Talk events are free of charge.
Reservations required. To RSVP, email hdc@hdc.org or call (212) 614-9107.

"Go forth and learn a lot." GL

We could not agree more. CORD

Also from GL a reminder of our Councilman's implicit support for the BSA:

Councilman’s Letter Avoids Pro or Con Stand on 360 Smith

September 16th, 2008 · www.gowanuslounge.blogspot.com

"City Council Member Bill de Blasio has been involved in the debate over 360 Smith Street since it became a community issue in Carroll Gardens. He has been involved in most public forums over the issue and his office has practically become the official go-between with the community and the developer. Recently, the neigbhborhood group CORD has been challenging him to take a stand against the developer’s effort to build the condo to its full 70 feet rather than 55 feet allowed under altered zoning. A letter from one of CORD’s founders said":

Where are you Councilman DeBlasio?”, we ask, as residents of Carroll Gardens who fought long and hard along with you to pass the zoning text amendment . This amendment which limits building height to 55 ft. will have no value, non, nada, if we allow even one new development to be absolved from its mandate. The claims of loss at the 360 site which is barely started, are incidental, and we need our Councilman to stand by our side at the BSA hearing to show his support. Our efforts through the past year will be futile if we let this go. You have been a strong force in our arduous endeavor to save our neighborhood and we appreciate all that you have done. It is vital that all our Politicians who were proponents of the amendment show their courage and determination by supporting their constituents at the BSA hearing. Where are you Councilman DeBlasio? Can we count on you to be there?

"The Councilman wrote a letter to the powerful board a week ago. In it, he does not recommend either approval or disapproval of the developers applications. He simply asks that the board “take the facts of each individual case and neighborhood preservation” into account in making a decision. " GL



Dateline : Thursday, August 07, 2008
Abolish the Board of Standards and Appeals!
By City Council Member Tony Avella

If the framers of the Constitution/Declaration of
Independence were still alive today, I am confident
they would cite the operation and existence of the
City’s Board of Standards and Appeals (BSA) as a
perfect example of unrepresentative government.

It is time for this unresponsive, undemocratic bureaucratic
body to go!

For many New Yorkers, BSA is a totally unknown entity,
yet its impact is being felt in every neighborhood in this City.
A quasi-judicial agency, BSA is comprised of five
commissioners appointed by the mayor for six-year terms
to, in large part, issue variances to the zoning code.

It is the implementation of this responsibility that has
irked, frustrated and outright angered elected officials,
community boards and residents.

The original mission of BSA was to provide a relief valve
for property owners in those rare circumstances where
existing zoning regulations would prohibit them from
reasonably developing their property. I stress the
word “rare.”

Unfortunately, BSA has been allowed to mushroom into a
huge loophole for developers who want to circumvent
the law. For far too long developers have used BSA as
“an old boys network” where a handful of law firms
represent hundreds of clients/developers trying to
build in excess of existing building and zoning code

While the borough presidents and community boards
routinely submit comments on variance applications,
their opinions are only advisory and often dismissed by BSA.

Despite BSA’s assertions to the contrary, borough
president and community board recommendations
are generally only successful in achieving very minor
changes to original plans. It is fascinating to note that
City Council members have no official role in the
process other than to receive a copy of the application.

When reviewing applications, BSA must evaluate the
request in terms of the following five criteria:

* Does the unique condition of the property prevent
reasonable development?
* Would unique property conditions prevent an owner
from obtaining a reasonable financial return?
* Does the variance, if granted, alter the essential
character of the neighborhood?
* Is the situation the result of a self-imposed hardship?
(In other words – you cannot buy a property knowing
the restrictions and then claim hardship.)
* Is the variance requested the minimum necessary
to afford relief?

Unfortunately, BSA routinely disregards these guidelines.
The self-imposed hardship restriction is rarely enforced.
The BSA requirement that the variance will not alter the
character of the neighborhood is a joke! It is never really

And why does the city, through BSA, reward developers
for making a bad financial decision. If you own any other
type of business in this city and make a bad investment
or your business fails, the city does not bail you out. But,
BSA will grant a financial hardship variance for developers
who make poor judgments or risky investments.

This practice clearly demonstrates the huge political
influence that the real estate industry enjoys in this city.
It is a foolproof system that rescues developers from
their own incompetence and investment mistakes.

To justify their favorable actions towards developers,
BSA will frequently rely on their “quasi-judicial” status
as a defense. This convenient excuse provides political
cover for their lack of common sense and failure to
adhere to the five variance criteria. Yet, the
qualifications for appointment to the board say
nothing about being an attorney.

The only qualifications mentioned in the City Charter
are that one commissioner shall be a registered
architect with at least 10 years’ experience as an
engineer and one shall be a planner with professional
qualifications and with at least 10 years’ experience
as a planner.

Why is there no requirement that the Commissioners
have legal experience? Because it was never meant to
be the final legal arbiter of these land use issues.

Ever since the old Board of Estimate was eliminated, the
only recourse for New Yorkers to appeal BSA decisions is
to file an Article 78 lawsuit against the city – a time consuming
and expensive proposition. Good luck in trying to get
satisfaction by that route!

When the Board of Estimate was in existence, BSA decisions
could be appealed to that legislative body. Under that
system, at least New Yorkers had the opportunity to
press their case for justice before officials elected by the
people as opposed to the appointed bureaucrats on BSA.

Since taking office in January of 2002, I have authored
several pieces of legislation in an attempt to reform this
agency. Unfortunately, all of them are languishing in
the City Council as a direct result of the pressure
exerted by the real estate industry and the opposition
from the Mayor’s Administration.

In order to address the lack of oversight and an
appeal process, I introduced Intro. 261/2006. This
legislation would re-establish the review process over
variance and special permits decisions, previously
held by the former Board of Estimate, under the
auspices of the City Council.

The City Council already has jurisdiction in land use
matters under the Uniform Land Use Review
Procedure (ULURP). Adding this review process
would strengthen the ULURP procedure and add
balance to this area of land use decision-making.

I authored two other bills in a further attempt to
address the total control of the mayor in appointing
members to the board.

Intro. 263/2006, if enacted, would expand the
number of BSA commissioners from five to thirteen,
with the eight additional members to be appointed,
one each, by the borough presidents, public advocate,
comptroller and City Council.

The five mayoral appointees would remain; but their
voices would be tempered by those of the eight additional
members. Obviously, this would enable elected officials to
better serve their constituents by having direct
representation on the board.

As a companion bill to Intro. 263, I introduced Intro.
262/2006, which would require that all variance and
special permit decisions by BSA be made by a
two-thirds majority of the quorum present and voting.
Once the membership of BSA is expanded to 13 members,
requiring a two-thirds majority vote would ensure that
decisions of such magnitude are addressed by a
substantial majority of the board.

This past February, I introduced Intro. 695/2008,
which would require one of the members of BSA to
be a financial analyst with professional qualifications.
Since one of the five variance criteria involves the
review of an alleged financial hardship, it only makes
sense to have a member of the Board who has the
financial background to determine the legitimacy of
any such claim by a developer.

I am also in the process of writing legislation that
would change the statute of limitations for filing
an Article 78 proceeding challenging BSA decisions,
from thirty days to four months.

The current 30-day time frame presents an unnecessarily
harsh procedural hurdle. The very short time frame within
which an Article 78 petition must be filed makes such challenges extremely difficult to execute due to the cost and extensive preparation that is required in bringing these actions before the Supreme Court.

The majority of Article 78 BSA cases are brought by
aggrieved citizens who need a significant amount of
time to come up with funds to retain counsel, and for
counsel to properly prepare the necessary petitions and
accompanying documents that must be filed. Making this
change in the law would provide residents and community
groups the necessary time to properly develop and file an
Article 78.

The passage of any of these bills would make a
significant impact on how BSA operates and allow for
additional community input and a more balanced
decision making process.
Having said that, I have come to believe that BSA
decisions are so skewed in favor of developers that
the entire system must be scrapped.

After personally testifying before the board on
numerous variance applications on behalf of the community,
not only those within my City Council district, but other neighborhoods/boroughs as well, I have come to realize
that the entire process is a charade.

It is extremely disheartening to watch neighborhood
residents travel to the BSA office in lower Manhattan
for hearing after hearing to contest a variance application,
only to see the commissioners vote in unison to approve the application.

It has become a BSA routine; whereby multiple hearings are
held on an item until; it would appear, the community is
simply worn down. It is almost impossible for the average
person to continuously take time off from work or other
duties to fight the developers.

In the final analysis, while most people do not know
agency even exists, it has had and continues to have
dramatic and damaging effect on the residential
character of neighborhoods throughout our city by
allowing developers to circumvent the zoning – in many
cases ruining the quality of
life for millions of New Yorkers. It is time to end
this sham and close what is the biggest loophole for

Abolish the Board of Standards and Appeals!

“Abolish the Board of Standards and Appeals!”
pub. in the Queens
Ledger by Tony Avella 8/7/2008.


With the "Protect Our Homes" petition, CORD was formed in May, 2007. This petition arose as an overwhelmingly negative response to the coming of the over-sized 360 Smith Street Development at the corner of Smith Street and Second Place (Aka Oliver House; aka 131 Second Place). This petition, which had well over three thousand signatures, led to a new zoning text amendment in summer of 2008.

To: Our Elected Officials, Community Leaders, The MTA:
(MAY, 2007)

We the undersigned Carroll Gardens homeowners and residents, are appalled by the "as of right" ruling which allows owners and developers to erect buildings in our neighborhood with no regard to the impact they will present to our quality of life and the value of our homes........