Yesterday, after years of setbacks and heated debate, Whole Foods got a green light from the city to build its first grocery store in Brooklyn. By a 5-0 vote, the city’s Board of Standards and Appeals agreed to grant the upscale grocer an exception from zoning laws to build on the banks of the Gowanus Canal. At 52,000 square feet, the store will be more than five times larger than the 10,000-square-foot cap established for the site. In its unanimous decision, the Board rejected arguments by community advocates that the store would change the character of the neighborhood.
The decision led us to ask: What powers does the Board of Standards and Appeals have to override zoning laws, and how broadly has it used them? We asked Raju Mann, director of planning at the Municipal Art Society, to explain. –Sasha Chavkin
New York City established the Board of Standards and Appeals to grant economic relief from the zoning code when property owners could show zoning rules caused unnecessary hardship. By providing relief through the grant of variances, a city reduces its exposure to constitutional challenges to its zoning resolution under the fifth and fourteenth amendments of the U.S. Constitution – and counterpart provisions in the New York State Constitution – which forbid the government from taking private property or depriving the owner of its reasonable economic use.
The Board of Standards and Appeals (BSA) consists of five commissioners appointed by the mayor, who review applications for variances. The application for a Whole Foods store in the Gowanus is one such application, filed to construct a food store larger than what is permitted by the existing M2-1 zoning district. As-of-right, meaning without any additional approvals, the New York City Zoning Resolution only allows Whole Foods to build a 10,000-square-foot store on the site. Whole Foods, however, is seeking to build an approximately 60,000 square foot store with a 20,000 square foot rooftop greenhouse, parking for 248 vehicles, and a public walkway along the Gowanus Canal.
Essentially, Whole Foods argues that because of the particular conditions of the site it cannot realize a reasonable economic return on its property under the existing zoning rules. Among the specific site conditions they note are:
1) the soil conditions on the property require extensive pile foundations and special drilled piles are needed near a landmarked building on the site. These foundations make construction more difficult and add to the project cost.
2) the property is in a flood zone and has a high water table, which requires extensive waterproofing, which again will add to the cost of the project.
3) the property is subject to the state Brownfields Cleanup Program, which entails environmental remediation costs.
Most variance applications are renewed. In 2004, the Municipal Art Society published a paper that found the board signed off on 93 percent of variance applications. This number is somewhat misleading because many nonviable applications are weeded out in staff review prior to official submission to the board.
The report identified a number of concrete steps to help strengthen the BSA process to ensure that it doesn’t become a land use loophole. Many of these issues continue to be a concern today and include adding additional financial expertise to the BSA staff to evaluate these economic hardship claims and more careful coordination between the Department of City Planning and the BSA to ensure variances approvals do not begin to set land use policy.