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BSA: Hardship Safety Valve or Alternative Zoning Forum?

The BSA has existed since New York City’s Zoning Resolution was created in 1916. It was created to vary the zoning laws “where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the provisions of” the law. From its very inception however, those seeking to build nonconforming structures exploited the BSA’s vague mandate. Drafters of the 1961 Zoning Resolution recognized the problem and set about crafting a provision that would provide more guidance for the BSA and the Courts. The resulting “five findings” contained in Section 72-21 of the Zoning Resolution require applicants to demonstrate unique physical conditions, inability to realize a reasonable investment return, minimum negative impact on the essential character of the neighborhood, that the hardship was not self-created and that the relief requested is the minimum required to offset the harm.

Unfortunately, the problem has persisted. An unofficial mapping of variances in manufacturing areas by the New York Industrial Retention Network shows the clustering of variances in communities that are the focus of real estate development. The implication is, of course, that the variance process is being used to site lucrative residential development in neighborhoods where the underlying zoning would otherwise prevent it.

Two on-going matters, in the Lower East Side and the Meat Packing District, illustrate the problem of discerning true hardship from real estate speculation. The first, a “bulk” variance application, is for a twenty-three story residential building located at 848 Washington Street. The variance in this case would be for “use,” permitting residential dwellings in what the developers call a dying manufacturing district. A study by the Municipal Art Society’s Planning Center found an existing and still vibrant manufacturing presence. In both cases the Society has joined communities in opposing the variances.