Matter of Vomero v City of New York
Annotate this CaseDecided on August 7, 2006
Supreme Court, Richmond County
In the Matter of the Application of Edward J. Vomero, Petitioner, For an Order and Judgment pursuant to Article 78 of the CPLR
against
City of New York, BOARD OF STANDARDS AND APPEALS OF THE CITY OF NEW YORK, DEPARTMENT OF BUILDINGS OF THE CITY OF NEW YORK and GAC CATERING, INC., Respondents.
080315/05
Thomas P. Aliotta, J.
the petition to annul the determination of respondent BOARD OF STANDARDS AND APPEALS OF THE CITY OF NEW YORK, dated August 9, 2005, which granted respondent GAC CATERING, INC. a use variance authorizing the erection of a commercial establishment in an area of residential zoning is granted, and the determination is annulled.
On September 9, 2003, respondent GAC CATERING, INC. (hereinafter GAC) purchased a one-family house located on the corner of Otis Avenue and Hylan Boulevard in Staten Island, New York for $275,500. It is undisputed that the property was located in an area designated for residential use only. Shortly thereafter, GAC demolished the house and applied to respondent DEPARTMENT OF BUILDINGS OF THE CITY OF NEW YORK (hereinafter DOB) for a permit [*2]to construct a two-story commercial building to be operated as a photography and video studio in conjunction with a catering hall located across the street. The catering establishment is owned by GAC. The DOB denied the application on the ground that a commercial building is not permitted in this residentially-zoned area.
GAC subsequently applied to the BOARD OF STANDARDS AND APPEALS OF THE CITY OF NEW YORK (hereinafter BSA) for a use variance pursuant to the New York City Zoning Resolution §72-21 on the ground, inter alia, that the unique physical condition of the site would create practical difficulties or unnecessary hardship to development in conformity with the existing zone regulations. In support of its application, GAC submitted, inter alia, a land use map which is claimed to demonstrate that the area of Hylan Boulevard between Otis Avenue and Bryant Avenue is one of the few remaining residential sections in that part of Staten Island, and that the surrounding area has been fully "built-out" with commercial uses. It is therefore argued that a commercial use of the subject property would be compatible with the surrounding area, and would not affect the essential character of the neighborhood.
GAC also submitted an economic feasibility study setting forth a number of uses to which the property might be put in conformity with the present zoning, including development of the parcel with (1) a medical office, (2) two detached two-family homes, (3) two one-family semi-detached homes and (4) a multiple dwelling. According to GAC, this study illustrates that the unique location of the property affords no reasonable possibility of development in strict conformity with the extant (residential) zoning that would yield a reasonable rate of return. GAC also submitted a letter from a real estate broker stating that the property was shown to a number of potential buyers and renters during May and October of 2003, and that heavy traffic in the area was a major drawback to consummating a deal. Finally, GAC revised its building plans to more nearly conform to the residential character of the adjacent homes.
Based upon this showing, the BSA determined that (1) the unique physical condition of the lot leaves no reasonable possibility of yielding a reasonable return if developed in strict conformity with the existing zoning, (2) that the proposed variance will not affect the character of the neighborhood, and (3) that commercial use of the site is compatible with the surrounding uses. In the current application, petitioner, who lives next door to the subject property, seeks to vacate and annul the BSA's determination to grant the variance. He alleges (1) that any hardship allegedly faced by GAC was self-created in that it knew that the premises was residentially-zoned when it purchased the property, and (2) that GAC has failed to prove unnecessary hardship. In this regard, petitioner observes that GAC purchased the property in September 2003 for $275,500, and that by April 2005, its market value has since risen to at least $384,000 according to The City of New York Department of Finance Assessment Roll, that was included in GAC's economic feasibility study and submitted to the BSA.
In response to GAC's claim that attempts to sell the property for residential uses were hindered by its location in a largely commercial setting, petitioner contends that he never observed a "For Sale" sign on the property during the time that it was allegedly being marketed, and that the foregoing negates any claim of a good faith attempt at selling the property. Moreover, petitioner submitted proof of an offer by a ready, willing and able buyer to purchase the property for $415,000, and argues that GAC has yet to prove that development of the property in conformity with its residential zoning will not yield a reasonable rate of return. Rather, petitioner claims that residential [*3]development simply would not be as profitable as GAC would like. Finally, petitioner contends that the BSA improperly considered the fact that GAC owns a catering hall directly across the street from the subject property when granting the variance.
In opposition, respondents GAC, the CITY OF NEW YORK, the BSA and the DOB have submitted virtually identical answers in which they (1) deny the material allegations in the petition, and (2) cite the relevant statutory provisions regarding, e.g., the creation and power of the BSA, to sustain its determination.
In addition, the CITY OF NEW YORK, the BSA and the DOB assert as affirmative defenses that the BSA properly exercised its discretion in granting the variance, since GAC was able to demonstrate (1) that the location of the property on the corner of a six-lane commercial thoroughfare in an area with multiple commercial uses constitutes a unique physical circumstance that would cause it unnecessary hardship if strict compliance with the extant zoning was required; (2) that the foregoing unique condition leaves it with no reasonable possibility for development in conformity with the present restrictions that would provide GAC a reasonable rate of return; (3) that the proposed commercial use would not alter the essential character of the neighborhood as it now exists; (4) that GAC had modified its original plans to ensure that its proposed use of the property would more nearly conform with, and present less of a disruption to its residential neighbors; [FN1] and (5) that the hardship claimed by GAC was not self-created, but rather the result of practical difficulties inherent in the site that are beyond its control. Considering all of these factors in the aggregate, it is claimed by the municipal respondents that GAC's purchase of the property with knowledge of the existing zoning restrictions, should not, by itself, constitute a self-created hardship.
For its part, GAC claims in its answer that the existing one-family house located on the property suffered from an adverse location and the effects of economic obsolescence such that it would never be capable of producing a sufficient cashflow. GAC also claims that the irregular shape of the lot reduces its development potential, and that the commercial character of the surrounding areas constitute a unique circumstance precluding viable residential development. In addition, GAC claims that its land use study shows that there are only two other corner lots within 30 linear blocks of the subject property that retain a residential character, thereby demonstrating it's claim that the likelihood of producing a reasonable return from residential development is negligible. Finally, GAC claims that the BSA acted reasonably on the record before it, and considered all of the relevant factors before granting the variance.
It is well established that a zoning board determination should not be set aside unless there is a showing of illegality, arbitrariness or an abuse of discretion (see Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 313-314). Nevertheless, it is the opinion of this Court that the BSA's determination to grant GAC a variance to erect a two-story commercial building on this residentially-zoned parcel must be vacated and set aside as lacking a substantial basis on the evidence before it.
To begin, the BSA's conclusion that the hardship (if any) sustained by GAC was not self-created is contrary to both the evidence and well established case law holding that a prospective purchaser is chargeable with knowledge of the applicable zoning restrictions, and is bound by them [*4]and any other facts and circumstances which can be learned through the exercise of due diligence (see Matter of Tharp v. Zoning Bd of Appeals of City of Saratoga Springs, 138 AD2d 906)."Hardship in the context of zoning is self-imposed where the applicant for a variance acquired the property subject to the restrictions from which he or she now seeks relief" (Matter of First Natl. Bank of Downsville v. City of Albany Bd. Of Zoning Appeals, 216 AD2d 680, 681).
Here, GAC does not dispute the fact that it knew of the existing zoning restrictions when it purchased the subject property, nor is there proof of any subsequently-discovered problem or obstacle to its residential development (cf. Matter of Citizens Sav. Bank v. Board of Zoning Appeals of Vil of Lansing, 238 AD2d 874). Because GAC was aware of the applicable zoning restrictions at the time it purchased the property, the BSA's negative finding on the issue of self-created hardship finds no support in the record and is contrary to the evidence before it.
Similarly, the Court finds that so much of the BSA's determination as is predicated upon the supposed "uniqueness" of the lot finds no support in the proceedings before it. The lot itself is of a substantial size (approximately 5800 sq. ft) which, according to the land use map submitted by GAC , is approximately the same size as the other residential lots situated in the subject area, i.e., on the southeast side of Hylan Boulevard between Otis Avenue and Bryant Avenue. Pertinently, each of these others parcels is encumbered with a conforming use of the land. Thus, there is no proof that the size of the property was ever an issue making it unsuitable for residential development. In this context, while the limited potential for on-site parking may render the lot unsuitable for use as a medical office or a multiple dwelling, there are other permissible uses not so affected. The fact that such usage may not provide GAC with the rate of return which it expected is not a permissible basis for granting of a use variance (see infra).
As for the BSA's finding that the location of the property creates unnecessary hardship or practical difficulties to its development in conformity with the applicable zoning, it is well settled that the standard of unnecessary hardship requires an applicant to show (1) that the land cannot yield a reasonable return if used for a permitted purpose; (2) that the circumstances which caused the hardship are unique to the land and not to general neighborhood conditions, and (3) that the requested change in use will not alter the essential character of the locality (see Matter of Otto v. Steinhilber, 282 NY 71, 76). Here, there was no proof before the BSA demonstrating that the property is unique as compared to the rest of the block on which it is located; it is merely the corner lot. While the mixed character of the neighborhood "may reflect [upon] the reasonableness of the zoning ordinance itself," the foregoing is a legally insufficient basis upon which to predicate the finding of a unique hardship (Matter of Otto v. Steinhilber, 282 NY at 76). Moreover, there was no substantial evidence before the BSA that the proximity of the residential area to the commercial area rendered the use of the parcel in conformity with the existing zoning unfeasible, or the property unmarketable (id.; see also Matter of Wilcox v. Zoning Bd. of Appeals, 17 NY2d 249, 254). While not significantly altering the essential character of the larger neighborhood, the granting of a variance in this case can only produce a negative effect on the viability of the remaining residential uses. The amendment of a zoning regulation perceived by the BSA to be unwise may not be accomplished piecemeal by the issuance of successive use variances that effectively cancel the existing zoning through the process of erosion (see Matter of Otto v. Steinhilber, 282 NY at 76).
Finally, as regards the BSA's finding that GAC cannot recognize a reasonable return from any conforming use of the property, it must be emphasized that it has already been determined that [*5]GAC's claim of economic hardship is self-created. The mere fact that residential development of the property may not be as lucrative for GAC as commercial development is largely irrelevant to the question of whether its alleged "uniqueness" precludes GAC from realizing a reasonable rate of return (see Matter of Colonna v. Board of Stds. & Appeals, 166 AD2d 528; Matter of Marchese v. Koch, 120 AD2d 590). Moreover, the BSA had before it uncontroverted evidence that the assessed valuation of the property had increased substantially since the time of GAC's purchase, and that a contractor had offered to purchase the property for residential development at a sum that represented a 50% profit to GAC. In the face of this undisputed evidence, the BSA's contrary determination on this issue must be seen as lacking a substantial basis.Accordingly, it is
ORDERED that the petition is granted and the determination is annulled; and it is further
ORDERED that the Clerk enter judgment accordingly.
E N T E R,
Dated: August 7, 2006/s/
THOMAS P. ALIOTTA, J.S.C.
Footnotes
Footnote 1: These modifications included the removal of a second floor balcony and elimination of an outdoor wedding garden.
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