2012-03-09 / Columnists

East End Matters...

BSA Rulings Favor Developers, Not Communities
Commentary By Miriam Rosenberg

So it has happened again. A community fights to have its zoning changed to preserve the character of its neighborhood. The downzoning is passed and residents believe their neighborhood is now safe from overdevelopment. But developers bring their case to the city’s Board of Standards and Appeals. It is there that residents explain how the proposed building would hurt their area. It is also there that the BSA and developers play a game of let’s make a deal. In hearing after hearing BSA board members ask developers to make changes in their plans and in the end, the BSA votes to give the builders the OK to go ahead with their projects.

The Bayswater Civic Association just went through a fight to keep a Yeshiva with a dormitory from being built in Bayswater, but the BSA ruled for the developer. This, however, is not a new story for Rockaway. The residents of Mott Creek, in 2006, finally won the downzone they so desperately needed to stop the overdevelopment in their area. But one developer took his case to the BSA and won the right to keep building under the common law doctrine of vested rights. In other words, he proved that so much was invested into the project that he would lose money if he was denied. The BSA agreed that substantial work had already been done at the time of the downzone and granted him the right to continue.

The story in Bayswater is a bit different. One thing that helped the developer is that concerns about the character of a neighborhood are not high on the list of BSA priorities when it comes to educational facilities.

Part of the BSA decision reads: “WHEREAS, specifically, as held in Cornell University v. Bagnardi, 68 N.Y.2d 583 (1986), an educational institution’s application is to be permitted unless it can be shown to have an adverse effect upon the health, safety, or welfare of the community, and general concerns about traffic, and disruption of the residential character of a neighborhood are insufficient grounds for the denial of an application.”

The decision also says, “…the Board finds that the limitations of the existing zoning, when considered in conjunction with the programmatic needs of the Yeshiva, creates unnecessary hardship and practical difficulty in developing the site in compliance with the applicable zoning regulations …”

The whereas’s go on, and most of them refer to the builder and not the community.

Let me make it clear I am not beating up on the Yeshiva. I am using that and the Mott Creek case to point out what most people who know anything about the BSA will tell you – if you are not a developer you probably should just pack it up and go home.

Don’t believe me? Using the BSA website I pulled up calendars for the last six months, from September through February. On those calendars were the results of 139 decisions made by the BSA – 134 in favor of developers and only 5 denied. It should be no surprise that the BSA bends over backwards for developers. According to its website the BSA “was established as an independent board to grant ‘relief’ from the zoning code [established in 1916],” and protect against the fear that “the City would be subject to increased claims of unconstitutional taking of private property.”

So it seems the BSA graduated from protecting the city from claims against it to helping developers find ways to get around zoning laws, some of which communities worked hard to get passed. The data proves that the BSA will more often than not rule in favor of developers.

Enid Glabman, the president of the Bayswater Civic Association, was right when she said, “[The developer] had it wrapped up from day one.” Why? Residents put their faith in things that had no bearing on the case like traffic and character of the neighborhood.

They were not on equal footing with the lawyers who make their living representing developers and knew the Cornell University case before they set foot in the BSA hearing room.

If future communities have a hope of turning BSA decisions their way then they need to put up the money and hire someone who is specialized in such cases and knows what to expect when appearing before the BSA. Otherwise the results will continue to be the same – developers will win and residents will be left wondering what went wrong?

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