Example of an enlargement pursuant to a BSA-approved special permit in Brooklyn Community District 10 (original residence shown on the left). Click Photo to enlarge. Image credit: Brooklyn Community Board 10
Special Permit was meant to allow growing families to expand their familial residences, but Brooklyn Community Board 10 argues that its usage has been abused. On June 20, 2016, a proposal was presented to the City Planning Commission to amend the New York City zoning text relating to the Board of Standards and Appeals Special Permit provisions under Section 73-622, which provides for the enlargement of one- and two-family detached and semi-detached residences. Currently, Section 73-622 only applies to four Community Districts, and it permits additions to the perimeter wall height, and extensions into the requisite rear yards and side yards of the residences located within those Community Districts.
Under Section 73-622 of the Zoning Resolution, homeowners of one- and two-family detached and semi-detached residences, located within Brooklyn Community Districts 10, 11, 15 and select portions of 14, are permitted to submit an application to the Board of Standards and Appeals for authorization to increase the floor area and height of their existing homes, encroach up to 10 feet into required 30-foot rear yards, and encroach into required side yards only to the extent necessary to create vertical, straight-line extensions. Applicants seeking zoning-related special permits must provide copies of their Special Permit application to the local community board, the Borough President, the local City Council member, and the Department of City Planning. Substantially complete applications are then scheduled for a public hearing. The applicant, who will be notified of the public hearing at least 30 days in advance, must then provide notice of the public hearing at least 20 days in advance to the local community board, Borough President, City Council member, and the Department of City Planning. Zoning-related special permit applicants must also notify the owners of all property located within a 400-foot radius of the site seeking the Special Permit. In considering whether to grant a Special Permit Section 73-622, the Board of Standards and Appeals is limited by Section 73-622 restrictions—it does not permit encroachments into front yards nor does it permit any alterations that will impair future development. Further, Section 73-622 mandates that alterations made pursuant to the Special Permit must be in line with the character and nature of the surrounding area.
At the June 20th public review session, Richard Jacobs, project planner at the Department of City Planning’s Brooklyn office, presented the proposed zoning text amendment. According to Jacobs, the Department of City Planning approved Special Permit Section 73-622 in 1997 for the purpose of enabling growing families—who would otherwise want to leave the City for a more spacious living arrangement—to remain in their existing homes by building additions to their homes, such as adding a new bathroom or incorporating a larger kitchen. Further, Jacobs testified that Section 73-622 was submitted initially to the Department of City Planning as applicable Citywide, but during the course of the public review process, the applicability was limited to seven zoning districts—Brooklyn Community Districts 10, 11, 15, select portions of Brooklyn Community Districts 12 and 14, and Staten Island Community Districts 1 and 2. At the conclusion of the public review process, the New York City Council removed Staten Island Community Districts 1 and 2 from applicability under Section 73-622. Then, in 2000, the City Planning Commission approved the removal of Brooklyn Community District 12 from applicability under Section 73-622.
Richard Jacobs explained that, since the City Council adopted Section 73-622 in February of 1998, only 21 Special Permit applications have been submitted to facilitate residential enlargements in Community District 10. Of those 21 Special Permit applications, ten were recommended for disapproval by Community Board 10, yet all 21 were approved by the New York City Board of Standards and Appeals. Today, Brooklyn Community Board 10 members have come to believe that the applicability has been used predominantly to “legalize existing illegal conditions or build luxury housing for speculative sale or purchase.”
City Planning Commission Vice Chair Kenneth Knuckles asked Jacobs if approving the removal of Brooklyn Community District 10 from applicability under Section 73-622 would render residents of the District incapable of seeking approval from the Board of Standards and Appeals to modify their residences beyond what is available as-of-right. Jacobs testified that homeowners of residences located within Community District 10 would still be able to modify their residences by seeking a variance under Section 73-21 or by filing an application for a Special Permit under Section 73-621, but that such enlargements will be limited to additions no larger than ten percent.
Vice Chair Knuckles inquired further into whether there exists a special permit with Citywide applicability that is similar to the one authorized under Section 73-622. Jacobs testified that the Special Permit authorized under Section 73-621 has Citywide applicability.
Commissioner Anna Hayes Levin noted that while Brooklyn Community District 10 has been the subject of 21 Special Permit applications, other Community Districts have been affected by hundreds of applications. Commissioner Levin questioned whether the issues presented by the Special Permit provisions under Section 73-622 are larger than just in Community District 10, warranting the consideration of possibly nixing the Special Permit Section 73-622 entirely. Jacobs testified that while Brooklyn Community District 14 has seen 232 applications and Brooklyn Community District 15 has seen 217 applications, he could not testify as to whether their corresponding community boards are unanimous like Brooklyn Community Board 10 is in its desire to be removed from the applicability under Section 73-622.
“Repealing Special Permit 73-622 in Community Board 10 is a result of its misuse over the years,” said City Council Member Vincent Gentile, the representative for Brooklyn Community District 10. “Intended to allow existing residents to ‘grow in place,’ it rather has been used by investors and developers to purchase property with the full intent of enlarging it from the start via the special permit. This abuse has been done over and over without regard to the impact on the neighborhood or to its contextual nature we achieved a decade ago through downzoning.”
District Manager Josephine Beckmann stated, “Community Board Ten has found over the years that ZR 73-622 Special Permit applications have resulted in development that does not reflect the initial intent to allow modest expansions for families who want to remain in Bay Ridge, Dyker Heights or Fort Hamilton. After many years of study, we found that many enlargement applications made under this special permit were being made for luxury expansions, were speculative purchases or legalizations. In fact, the Board of Standards approved all applications despite instances where Community Board Ten members raised objections that the expansion projects did not conform to the intentions of the statute and adversely affected community character.”
Brooklyn Community Board 10 approved the application and promptly sent it to Brooklyn Borough President Eric Adams for review.
CPC: 160477-ZRK (June 20, 2016).
By: Jessica Soultanian-Braunstein (Jessica is the CityLaw Fellow and a New York Law School Graduate, Class of 2015)