Senate Bill S318

                                BILL NUMBER:S318

TITLE OF BILL:              REVISED 12/10/12

An act
to amend the
New York city charter, in relation to requiring that one of the members
of the board of standards and appeals be a financial analyst with
professional qualifications and at least ten years experience as a
financial analyst

SUMMARY OF PROVISIONS:

Section 1 of the bill amends subdivision b of section 659 of the New
York city charter, as added by local law number 49 of the city of New
York for the year 1991, by requiring that one of the board members
must be a financial analyst with professional qualifications and at
least ten years experience as a financial analyst.

Section 2 provides for this act to take effect immediately.

JUSTIFICATION:

Currently, the New York city charter requires the Board of Standards
and Appeals ("BSA") to have at least one member who is a planner with
professional qualifications, one member who is a registered architect
              

and one member who is licensed professional engineer, all of whom
must have at least 10 years' experience in their respective
professional field.

Given the particular jurisdiction of BSA on various land use and
buildings issues, it is obvious why the Charter requires there to be
a planner, architect and a professional engineer. However, given the
broad powers of BSA in granting variances based in large part on
economic and financial factors it should also be obvious that there
is an important need for one member of BSA to be a financial analyst.

One of the primary functions of BSA is to review variance
applications. As part of the variance review process, BSA must make
five findings prior to issuing a variance, which in part illustrates
the "practical difficulties" or "unnecessary hardship" alleged to
exist if the applicant was subject to strict compliance with the
Zoning Resolution. See Zoning Resolution, Art. VII, §72-21

If BSA confirms the existence of a "unique physical condition"(1), they
are then required to determine if "because of such physical
conditions there is no reasonable possibility that the development of
the zoning lot in strict conformity with" the applicable zoning "will
bring a reasonable return, and that the grant of the variance is
therefore necessary to enable the owner to realize a reasonable
return from such zoning lot." §72-21 (b)(emphasis added).

The term "reasonable return", although somewhat vague and certainly
open to interpretation.
clearly involves consideration of economic and financial factors in
the assessment of whether granting a variance is necessary. The


Zoning Resolution also requires that each of the five findings be
"supported by substantial evidence or other data considered by the
Board in reaching its decision", which in this case should mean
"substantial" financial and economic evidence of "reasonable return".

Therefore, it is important that BSA have a member with significant
expertise in providing reasoned, fact-based financial analyses in the
same way that the inclusion of a planner, architect and engineer
provides particular expertise of those professionals in order to
assist their member colleagues with a well reasoned and thorough
understanding of the issues upon which BSA must render its decisions.

PRIOR LEGISLATIVE HISTORY:

2011-2012:  S.6103/A.9511 (Braunstein)

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

EFFECTIVE DATE:

This act shall take effect immediately.

FOOTNOTE:

(1) This finding requires the existence of "unique physical
conditions" ... which result in "practical difficulties or
unnecessary hardship arise in complying strictly with the use
or bulk provisions of the Resolution; and that the alleged
practical difficulties or unnecessary hardship are not due
to circumstances created generally by the strict application
of such provisions in the neighborhood or
district in which the zoning lot is located." §72-21 (a).