History and Purpose
An integral part of the City's system for regulation of land use, development and construction, the Board of Standards and Appeals was established as an independent board to grant “relief” from the zoning code. When New York City’s zoning was first established in 1916, it was intended to be generally applicable to large areas or many sites. However, it was anticipated that certain individual parcels of land could be unduly restricted by the regulations, and that the City would be subject to increased claims of unconstitutional taking of private property. Historically, appeals boards were created all over the country when municipalities established land use regulations. By providing relief through the Board, the possibility is significantly reduced for broad constitutional challenges to the overall zoning. The existence of the Board, in fact, protects the ability of the city’s government to regulate development of private property.
The Board, pursuant to the 1991 City Charter, contains five full-time, Mayoral-appointed commissioners.
Authority and Composition
The Board is empowered by the City Charter to interpret the meaning or applicability of the Zoning Resolution, Building and Fire Codes, Multiple Dwelling Law, and Labor Law. This power includes the ability to vary in certain instances the provisions of these regulations.
The majority of the Board’s activity involves reviewing and deciding applications for variances and special permits, as empowered by the Zoning Resolution, and applications for appeals from property owners whose proposals have been denied by the City’s Departments of Buildings, Fire or Business Services. The Board also reviews and decides applications from the Departments of Buildings and Fire to modify or revoke certificates of occupancy.
The Board can only act upon specific applications brought by landowners or interested parties who have received prior determinations from one of the enforcement agencies noted above. The Board cannot offer opinions or interpretations generally and it cannot grant a variance or a special permit to any property owner who has not first sought a proper permit or approval from an enforcement agency. Further, in reaching its determinations, the Board is limited to specific findings and remedies as set forth in state and local laws, codes, and the Zoning Resolution, including, where required by law, an assessment of the proposals' environmental impacts.
By law, the Board must comprise one planner, one registered architect, and one professional engineer. No more than two commissioners may reside in any one borough.
The Board meets regularly in public review session and public hearings.
View the Calendar (in PDF) for the most recent or upcoming Board meeting.
Applications that come before the Board
Section 72-21 of the Zoning Resolution authorizes the Board to modify or waive zoning regulations. In applying for a variance, property owners typically claim that full compliance with zoning regulations is not possible in order to realize a reasonable economic return on their property. The Board must determine, in granting a variance, that each and every one of five findings identified in Section 72-21 are met. The five findings are excerpted from the Zoning Resolution below:
(a) that there are unique physical conditions …. inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise;
(b) that because of such physical conditions there is no reasonable possibility that the development of the zoning lot will bring a reasonable return … this finding shall not be required for the granting of a variance to a non-profit organization;
(c) that the variance, if granted, will not alter the essential character of the neighborhood;
(d) that the practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner;
(e) …the variance, if granted, is the minimum variance necessary to afford relief.
Section 73-01 of the Zoning Resolution authorizes the Board to grant special permits for specified uses, or for the modification of use and bulk in appropriate cases.
Special permit applications that affect use regulations include auto service stations in designated commercial districts, eating and drinking establishments with entertainment in designated commercial and manufacturing districts, physical culture establishments (i.e., “health clubs”) in designated commercial and manufacturing districts, cellular phone towers, and modification of zoning lots divided by zoning district boundaries and parking requirements.
Special permit applications that affect bulk regulations include the enlargement of single- and two-family residences in designated areas of Brooklyn, enlargement of non-residential buildings, and modification of community facility uses.
Rights to Continue Construction/Vested Rights
Section 11-331 of the Zoning Resolution authorizes the Board to renew (or “vest”) building permits that have lapsed due to zoning changes. In order for the permits to be renewed, the Board must determine that, on the date that the permits lapsed, excavation of the site had been completed and substantial progress made on completion of the foundations.
The Board can also renew permits if an applicant files to vest under the common law doctrine. Based on case law, the Board can make a vesting determination if it is determined that work was commenced under validly-issued permits, tangible change to the property occurred, and economic loss would result due to significant expenditure or irrevocable financial commitment.
Extensions and Modifications to Previous BSA Grants
The Board reviews applications to extend the term of previously approved variances and special permits (if a term was imposed on the approval) and/or to modify previous approvals for both before and after 1961, under Sections 11-411, 11-412, and 11-413 of the Zoning Resolution. The Board also hears applications to extend the time to complete work and/or obtain a Certificate of Occupancy.
General City Law Waivers
Under specific circumstances, the Board may grant an administrative appeal to both Sections 35 and 36 of the NYS General City Law.
Section 35 generally prohibits building in the bed of any street identified on an official map. The Board may grant an appeal to allow issuance of a building permit when a property owner can establish that the land within the mapped street is not yielding a fair return, or when the proposed street extension has been mapped for 10 years but the City has yet to acquire title.
Section 36 generally prohibits the issuance of a certificate of occupancy for buildings that do not front on a mapped street. The Board may grant an appeal if compliance with Section 36 would result in a practical difficulty or unnecessary hardship.
Prior to making its determination, the Board forwards applications for waivers from the General City Law to the Departments of Transportation, Fire and Environmental Protection for review and comment.
Section 72-11 authorizes the Board to hear and decide appeals to decisions rendered by the Department of Buildings or any City agency which, under the provisions of the Charter, has jurisdiction over the use of land or use or bulk of buildings or other structures. The Board is authorized to reverse, affirm (in whole or in part), or modify such decision. All appeals to the Board must be made within 30 days of the agency determination.
Upon filing, an application is assigned a calendar number and is forwarded to a staff examiner for review. For applications on the Zoning (“BZ”) and Special Order Calendars (“SOC”), applicants are required to provide copies of the filed applications to the local community board, borough president, councilmember and the Department of City Planning. When the examiner determines that the application is substantially complete, the application is scheduled for a public hearing. Applicants are notified by the Board of the hearing date at least 30 days in advance of the date.
Notification of Public Hearings
At least 20 days in advance of the public hearing, applicants must provide notice of the hearing to the local community board, borough president, councilmember and Department of City Planning for applications on the BZ and SOC calendars. Applicants with projects on the BZ calendar are also required to notify property owners within a 400 foot radius of the subject site (200 foot radius for applications that involve one- to three-family homes, or for special permit applications for lots of less than 40,000 square feet).
Review Sessions and Public Hearings
Public hearings are held on Tuesdays at 10 a.m. and 1:30 p.m. Occasionally, the Board holds special hearings on Wednesdays for items that may generate significant public testimony.
The SOC and the “Appeals” calendar are heard in the morning. The SOC is devoted to applications to extend the term and/or modify previous grants and the “Appeals” calendar is devoted to applications for waivers to the General City Law and Appeals to decisions from the enforcement agencies, such as the Department of Buildings.
The BZ calendar is heard in the afternoon. Applications for variances and special permits are heard at this time.
The Board holds its review session at 10 a.m. on the Monday before the public hearing. The public is encouraged to attend these meetings to hear the Board’s discussion on the items to be heard the following day. However, no public participation is allowed at these sessions.
View the Calendar (in PDF) for the most recent or upcoming Board meeting.
View the Board’s Guidelines for Hearing Attendees prior to attending one of the Board’s public hearings.
Local Law 40 of 2011 requires agencies to post certain memoranda of understanding and similar agreements ("MOUs") entered into among governmental agencies. The Board of Standards and Appeals has not identified any covered MOUs or similar agreements to date. Please check back for future updates.