The Problem With Home-Grown Services

We've had home-grown services.  We've had several of them.  We have some of them now.

Apart from the Commissioners, who must be BP residents, we have had and still have functionaries and decision-makers who are BP residents.  When I moved here in '05, the person in charge of the Recreation Department was a BP resident.  So was the Code officer.  I didn't know the person in charge of Recreation, but I heard she had..."issues."  I knew and liked the Code officer.  But I heard from a number of people that she had favorites, whom she protected by perhaps not citing them for violations, and others whom she more aggressively cited, even if the alleged infraction was not clear. 

Years ago, before my time, there was a police chief who was also a resident here.  I haven't heard enough to know if that created problems, like the problem described about the Code officer.  During my time, we've had two BP police officers who lived here.  One does now.  I haven't heard about any problems.

And then, of course, there was the drama about BP running its own sanitation function.  In theory, this is no more problematic than BP running any other internal function.  But there were several or many BP residents who very strongly opposed outsourcing, and many of them were in the longstanding habit of tipping, or otherwise rewarding, our dedicated sanitation workers for, shall we call it, extra special service.  It could have been special pick-ups, special placement of receptacles, or other such gestures and favors. And if someone else's garbage didn't get picked up, that wasn't the complaint of the favored residents.  One of the complaints from some of those people is that they don't like an outsourced contractor, because they're treated like -- no better than -- everyone else.

That's a little background and perspective, but it's not what I most wanted to discuss in this post.  We have several BP boards.  They are manned by volunteers who are all BP residents.  And some of those boards are comparatively powerful.  Two of them are categorized as "quasi-judicial."  They have a lot to say about what happens in BP, and to whom it happens.  If you don't like their rulings, you can hire a lawyer, and appeal to the district court.  

There are municipalities that don't rely on locals for functions like that.  There's just too much room for favoritism, conflict of interest, and imposition of personal interpretation.  And we've had accusations like those.

A big example of a possible problem is the "quasi-judicial" Code Compliance Board.  That board is made up of BP residents who have to pass judgment on the complaints of other BP residents -- their friends, enemies, neighbors, various other BP property-owners -- regarding Code citations, and the fines those property-owners are expected to pay.  There's loads of room for trouble with an arrangement like that.  And we -- BP and its Commissions -- have been very attentive to that room for trouble.  We've been vigilant and as open-minded as possible.  Over decades, we have been able to reassure ourselves that no possible trouble has happened.  For one thing, there has reportedly never been anyone who has challenged a Code Compliance Board ruling, by taking the board or the Village to court.  Perhaps the board itself is aware of and concerned about the possibility of trouble, or even the appearance of trouble, because one of the biggest complaints about the board is that it is too deferential, regarding things like excusing or reducing fines.

The other "quasi-judicial" board is Planning and Zoning.  And again, there's loads of room for trouble.  P&Z receives applications for work someone wants to do on a property, and the board has to approve, or deny, the proposal.  Much of the time, the indicators are very clear to everyone, and they include things like how many feet of setback were included.  If the proposal respects Code requirements like those, then the plan is approved.  If it doesn't, then the plan is either denied or adjusted.  If the proposal is a good idea, but the Codes don't permit it, then the board can encourage the property-owner to apply for a variance, and the board can offer support for the variance.  Or, the board can say the proposal is not consistent with the Codes, and violation of the Codes is not necessary, but the property-owner can apply for a variance anyway, and the board will discourage the Commission from granting the variance.  It is only the Commission that can grant variances.  (In "full disclosure," I was a member of P&Z for some years, and I know very well how this board works.)

The problem with P&Z comes with the Code requirement, if you can call it a requirement, that proposals, apart from complying with objective things like measurable set-backs, be "harmonious" with the Village, or with the block in which the proposal is proposed.  This is 100% subjective.  The Village is an almost uniquely heterogeneous place, and the concept of harmony is extremely tenuous.  We have a range of architectural styles, lots of colors, and there's little meaning to the idea of harmony.  But P&Z can and does use this theory to deny certain proposals.

I have seen P&Z deny color palettes, for example, on the basis of some entirely subjective sense of the proposed color scheme's not somehow fitting in with the neighborhood, or with the other houses on the block in question.  It's not because the requested colors were not included in the Village's approved palette (they were), but because of some idea that the approved colors requested did not fit with the other surrounding houses.

That's an example of how a board like P&Z can in some sense abuse its authority, and go beyond the Codes, for purely subjective reasons.  And I'll add another kind of example that I know very well, because it was about my property.  I wanted solar panels, and I wanted some of them on the street-facing roof.  We don't have a Code about solar panels.  Because ours is an "inclusive" Code, if something is not mentioned in the Codes, then it's not allowed.  Solar panels are not mentioned in our Codes, so in theory, they're not allowed.  But we do allow them.  The Village, and its P&Z boards, have decided to allow them anyway.  But the P&Z board has arbitrarily imposed a restriction on solar panels.  We have a Code that limits ducting and AC installations that are roof-mounted to parts of the roof not visible from the street, so P&Z has commandeered the liberty to apply the same restriction to solar panels.  The board ignores the fact that it doesn't make any functional difference where ductwork or AC units are mounted, but it makes a tremendous functional difference where solar panels are mounted.  (The end of the story about my solar panels is that I was forced to apply for a variance, and the then Village attorney told the Commission that it could not block me from having street-facing panels, and my variance charge had to be refunded to me.  But all of this started because the P&Z board arrogated to itself more authority than it was entitled to have.)

So, those are examples of how P&Z can use entirely subjective factors to deny requests.  But what about the other possibility?  Can P&Z use subjective factors, or perhaps abdicate the use of them, to permit what is clearly disharmonious with the Village and its general range of styles and usages?  It can, and it did.  And it's not a good story.

There was a proposal for a house on 117th St, on the south side of the street, between 6th and 7th Avenues.  The proposal was for a two-story house, which is permitted by the Codes, and the "footprint" of the proposed house respected the setbacks.  But the house used up a very substantial proportion of the buildable part of the property, and it was entirely two stories.  The house now exists, because P&Z did not deny the application.  It did not choose to consider the proposed structure disharmonious with the Village or with block and street where the house was to be built.  What is on that lot now is a massive structure that provides visibility from the second floor to all other properties on that block.  No one who lives on that block has privacy any more.  And what makes this story more tragic than it would otherwise be is that the applicant for the permit, who is also a contractor, was also a Village resident, and was and perhaps still is also a member of P&Z.  There is no more overpowering conflict of interest than that.  And even if, as I assume happened, the applicant, who made this proposal to his own board, recused himself from the actual deliberation and vote, it was not lost on anyone who this person was to the board.  The contractor/builder/owner of the house will move away some day.  The house will be there for many decades.  It might be there for 100 years or more.  And if you want to add the maximum insult to the injuries, the builder/homeowner, who was on P&Z, has just resigned from P&Z.  He got what he wanted, and the rest of us pay for it, because P&Z couldn't tell its own member the proposal was disharmonious, which it very grossly is.

Not every municipality uses residents of the municipality as members of the P&Z board, like some don't use local residents as members of a Code Compliance board.  It's dicey.  There's lots of room for trouble, of the conflict of interest kind.  Funny enough, during the reign of Truppman, Tracy tried to replace our Code Compliance board with a paid magistrate.  But Tracy was on such a campaign of domination and control that it was not possible to assume she was replacing a group that could be subject to conflict of interest with someone who couldn't.  There had never been identifiable problems with our Code Compliance board, and the appearance was not that she was trying to replace a problem with a solution, but that she was trying to replace a solution with a problem.  And no one has given enough thought to the idea that it's problematic having a P&Z board made up of people who may very well have interests besides simply and dispassionately interpreting the Codes.  We ought to think about that.