Avella: DOB’s New Development Challenge Process is a Farce

City Council Member Tony Avella, a candidate challenging Michael Bloomberg for mayor, released this statement: 

Avella: DOB’s New Development Challenge Process is a Farce
February 05th, 2009

Today, Tony Avella criticized the Department of Buildings (DOB) new development challenge process, which creates a 30-day formal challenge period for the public to contest new developments.

“While I believe that the posting of online diagrams for proposed new developments on DOB’s website is definitely a step in the right direction and leads to greater transparency, I completely disagree with the new development challenge process. Despite being touted by Mayor Mike Bloomberg as empowering the public with greater oversight over new developments, the truth is that this 30-day comment period is actually diminishing the ability of residents to contest new construction by creating a defacto statute of limitations. This procedure will, in effect, actually benefit unscrupulous developers who will simply wait out the clock to avoid community challenges,” stated Avella.

“Furthermore it is extremely inappropriate for the final appeal in the public review process to be brought before the Board of Standards and Appeals (BSA), which, throughout its existence, has essentially been a rubber stamp for developers.

“This is just the latest example of the Bloomberg administration’s failed attempts to reform this agency. In order to have true reform, DOB needs to be held accountable for their actions and must also allow greater community involvement. Avella added, “We cannot let Mike Bloomberg and DOB get away with this blatant attempt to silence the public when it comes to reporting building violations and unsafe construction.”

Avella has been the leading critic of DOB since taking office in 2002 and has made overdevelopment and DOB reform top issues in his Mayoral campaign.

Mayor's Order Encourages Developers to Violate the Law

The following is by Rob Hollander:

On Feb. 2, Mayor Bloomberg, without any legislative process, ordered a time limit on challenges to developments. Ordinary citizens will now have only and exactly 30 days to challenge the legality of a development once a permit has been issued.

Prior to the mayor's order, there was no time limit on challenges. Since the city allows developers to self-certify their plans (yes, approve their pans themselves), the only oversight lies in citizen challenges.

This time limit sends a clear message to developers:

• Plan developments without regard for the law.
• The thirty-day window severely decreases the chance of any challenge being brought at all, and if challenged, the development will be only at most thirty days into construction. At worst, the developer will merely have to alter plans (and borrow less money).

So developers will never have to remove a story — or thirty stories — of construction no matter how egregiously those stories violate the zoning and violate the neighborhood.

It's a call to any unscrupulous developer to submit self-certified illegal plans.
Here's the mayor's press release. Notice the headline, spun as procedural improvement. Scroll down to the last two paragraphs before the bullets to learn the underlying motivation: to streamline illegal development. Think about it: as long as the plans are legal, developers have no worries about challenges at any point in the process of construction. Challenges are only a burden to development if the developer is banking on illegal plans.

This is government administrative sponsorship of activity in violation of government legislation; government sponsoring criminality. It's a deft brushing aside of the laws that protect this city and its neighborhoods, and handing the city itself to developers for their fastest buck, no urban planning, no community voice, no legislative process. Just thirty days. Let's close the city council down and let Boss Bloomberg rule in the great tradition of Mussolini and Tweed. (That's an insult to Tweed. Tweed, for all his corruption, responded to his voting base, the Irish working class.)

If developers generally submitted legal plans, this order would never have been. The mayor's order is a response to a problem of excess illegality. His response: make it easier to commit fraudulent and illegal activity and increase the likely profit. Forgive me, it's just so unbelievably outrageous.

Mayor's Order Encourages Developers to Violate the Law (addendum)

The following is an addendum to this response (both by Monte Schapiro) to Bloomberg's recent DOB announcement:

Making plans available online is the least the DOB could do considering its current tacit policy of obfuscation. These are, after all, public records. But, establishing policy without any legitimate rule-making procedure or better still legislation strikes me as an overstriding act by an overweening Mayor.

There is also the issue of First and Fourteenth Amendment rights. Even if this were the result of legislation it might place an untoward burden on citizens seeking redress.

The press release claims that the newly announced procedure would "increase transparency and raise accountability" by establishing a "formal timeframe" and reduce "confusion and unnecessary and unintended costs for development in New York City." That is debatable and a very biased perspective. Anyway, a formal timeframe has never been the problem from the point of view of citizens seeking information on mostly self-certified projects. Instead, it has been the DOB's view that interested parties other than the developers are an annoyance to be stonewalled if at all possible.

Providing diagrams online may add to transparency but does not guarantee it, nor would it increase accountability. These issues might be better served by rules requiring all permits to be issued only 30 days after the plans have been posted on the website with a one year deadline for objections. Citizens would then have an opportunity to evaluate proposed projects and voice opposition before the work actually begins plus it would allow them to obtain other crucial documents from the DOB. After all, the other side of the coin, of equal importance, is challenging work done contrary to approved plans. That requires constant monitoring and research and this is what most often leads to delays in formal objections. The DOB must be instructed to cease withholding all public documents, i.e. the other contents of job folders, as well. Indeed, full stop work orders and comprehensive audits should be compulsory immediately upon any potentially legitimate objection to plans or disparities between these and the actual work. That would prevent illegal work from being done while the DOB looks in to the matter and conducts audits of plans. These audits should then be concomitant with thorough physical inspections of the site in order to expose incongruities.

Actually, the proposals made my Bloomberg and LiMandri do not even touch on the problems plaguing that department and certainly do nothing or very little to tangibly improve transparency or accountability. One of the best measures of the DOB's effectiveness is to be found in the recent Comptroller's audit report on outstanding DOB/ECB fines. That report, available online, concludes that there are over $200 million in unpaid ECB fines originating from DOB violations. It exposes the folly of using a fine structure as a deterrent, especially when there is no enforcement power behind it, or at least, none which the Department of Finance is willing to pursue. Worst of all, it confirms that the outstanding fines are merely a by-product of a greater problem, that is, that DOB violations habitually remain uncorrected.

Mayor's Order Encourages Developers to Violate the Law

The following is the first part of a response by Monte Schapiro to Bloomberg's recent DOB announcement:

For those of you who have not seen this, the Mayor is now issuing edicts by fiat in the form of press releases.

Perhaps in response to too much prying and resistance by tenants and community advocates the Mayor announced on Feb. 2, 2009 that along with the posting of zoning diagrams on the DOB website there will now be a completely arbitrary statute of limitations restricting community interference with what is being called "[T]he current crisis, which has no formal timeframe, produces confusion and unnecessary and unintended costs for development in New York City."

Potentially aggrieved residents and neighbors, community advocates, and elected officials are now being put on notice that once the zoning diagrams appear on the DOB BIS website the clock will start ticking. Those who might disagree with the Mayor's assessment of "development" will have 30 days to object and be funneled into what will surely be an even greater bureaucratic and capricious morass than now exists. That might be hard to believe for those of you familiar with the complacency/hostility now posing as DOB policy toward development-hating citizens.

Even in the worst of times the monarch would have to sign his/her name to an edict of this sort. In fact, without the issuance of a Policy and Procedure Notice from the DOB this "announcement" has questionable legal foundation. No doubt, but the head honchos aren't distracted by such nuisances. They know that a lawsuit challenging such a "policy" would drain any group of much needed resources.

By the way, what about the DOB's responsibility to enforce the Multiple Dwelling Law (MDL), state law which has something to say about building plans as well?

Concerning the proposed ultimate exhaustion of remedies, in the form of an appeal to the Board of Standards and Appeals (BSA), it might be instructive to know that in order to get that far one must satisfy nearly insurmountable requirements. The greatest of these is obtaining a Letter of Final Determination on the issues in question from the Building Commissioner. Without it no appeal may be heard by the BSA. If you are a nobody, a building or neighborhood resident, you might as well forget about getting such a letter. We know from experience that it takes political support to get the DOB to respond having now successfully brought two appeals before the BSA, one zoning related and the other having to do with the MDL.

They are apparently trying to sneak this one by us hoping we would not notice. This is an affront to our basic First Amendment rights to be informed and seek redress and must be vigorously opposed.

I think it’s great that the DOB will finally be uploading diagrams of zoning plans to their feted website. That would surely be an improvement over the current situation, one in which plans and microfiche mysteriously vanish or the Dept. simply refuses to provide copies to interested parties. It should not, however, be part of some insidious quid pro quo in which citizens give up their right to oppose illegal building plans for the privilege of seeing diagrams online. What are we supposed to do? Should we be monitoring building permits 24/7 in order to prevent illegal construction just because the Mayor and his hand-picked crony LiMandri want to throw ad hoc administrative obstacles in our path? That would be ridiculous!

The Mayor and the new Building Commissioner like to talk about "streamlining" as if they are running a company. This term, so overused in this administration, is code talk for rushing things through before any opposition might develop. They must be reminded that we have a polity, dysfunctional as it is, which requires respect for the rule of law.