Matter of Enopac Holding, LLC v New York City Bd. of Stds. & Appeals
Annotate this CaseDecided on October 5, 2004
Supreme Court, New York County
In the Matter of the Application of ENOPAC HOLDING, LLC, Petitioner,
against
NEW YORK CITY BOARD OF STANDARDS AND APPEALS, Respondent.
108194/04
Edward H. Lehner, J.
In this proceeding petitioner seeks to have the court i) vacate the decision of respondent New York City Board of Standards and Appeals ("BSA") that denied petitioner's application for a zoning use variance to permit the construction of a mini-storage facility on its property located at 6055-6065 Strickland Avenue in Brooklyn (the "Property"), and ii) direct the BSA to grant the variance.
The background facts relating to the 1996 rezoning of the area in which the Property is located only for residential use are set forth in my prior decision dated October 3, 2003 (NYLJ, Oct. 20, 2003, p 18, c. 1) in which I remanded to BSA for reconsideration a prior resolution denying the variance. I further directed, pursuant to order dated January 8, 2004, that future BSA hearings on remand "be limited to the issues to be determined pursuant to paragraphs (c), (d) and (e) of" Zoning Resolution ("ZR") §72-21. The BSA had previously determined that petitioner had satisfied the requirements of paragraphs "(a)" and "(b)" of said section (unique physical condition and inability to obtain a reasonable return if used in conformity with the rezoning).
Thereafter BSA conducted additional hearings and, at a meeting held on April 27, 2004, adopted a resolution again denying petitioner's application (the "Resolution"). Therein BSA gave great reliance to the prospective development of neighboring property (the "Copolla Property") for the construction of 52 units of conforming detached and semi-detached residential units. The Resolution noted that a committee of BSA had met with the owners of the Copolla Property (the "Developer") who indicated that they intended to seek permits from the Department of Buildings for as of right development of said residential units. The Resolution stated that the BSA had before it an application by the Developer for a waiver of the requirements of General City Law §36 to permit construction although there is no mapped street fronting the proposed buildings, observing that a "significant filing fee" had been paid to the City in connection with such waiver application, and that "a significant majority" of developers who obtain such a waiver "rarely return to the Board for [*2]further discretionary relief, but instead proceed with conforming development".
While noting that the grant of the waiver requires approval of the Fire Department and that, because of prior uses of the property, remediation of the soil of the Copolla Property requires approval of the Department of Environmental Protection, BSA determined that it could proceed with its decision on the application even though these other City approvals were required before the Developer could obtain a building permit.
On petitioner's contention that the construction of mini-storage units on the Property would have a less offensive impact on the proposed residential use than the retention of the current use as a parking lot for approximately 150 - 180 school buses, the BSA determined that such argument was not relevant and that "what is relevant is whether the proposed variance use will substantially impair the appropriate use of adjacent property", and "that the purpose of regulations governing non-conforming uses is, in part, to restrict further investment in such uses, which would make them more permanent establishments in inappropriate locations", and that "it is the proposed mini-storage facility's permanency which makes its negative impact more far-reaching in time and thus more objectionable than the existing non-conforming use".
The Resolution concluded that the grant of the requested variance "would lower the price that a prospective purchaser might pay to live in homes planned for the Copolla Property, which, in turn, could diminish the viability of the Copolla development such that it could not proceed as of right", and consequently "would substantially impair the appropriate development of the adjacent property". Hence, the BSA determined that petitioner had failed to satisfy the necessary requirement of paragraph "(c)" of ZR §72-21, which provides: "that the variance, if granted, will not alter the essential character of the neighborhood or district in which the zoning lot is located; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental to the public welfare."
The principles governing judicial review of decisions of the BSA were set forth in Soho Alliance v. New York City Board of Standards and Appeals, 264 AD2d 59 (1st Dept. 2000), aff'd. 95 NY2d 437 (2000), as follows (pp. 62-63):
"... local zoning boards have wide discretion in considering applications for variances and the judicial function in reviewing a zoning board's determination is limited .... A zoning board determination should not be set aside unless there is a showing of illegality, arbitrariness or abuse of discretion.... That is to say, the determination of [the zoning board] will be sustained if it has a rational basis and is supported by substantial evidence .... The board's determination is entitled to substantial judicial deference ... and, even where a contrary determination would be reasonable and sustainable, a reviewing court may not substitute its judgment for that of the agency if the determination is supported by substantial evidence .... Substantial evidence has been defined as 'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact' ...."[*3]
See also, Ifrah v. Utschig, 98 NY2d 304, 308 (2002); Conley v. Town of Brookhaven Zoning Board of Appeals, 40 NY2d 309, 314 (1976).
In discussing the "grudging tolerance" of nonconforming uses, the Court of Appeals wrote in Toys "R" Us v. Silva, 89 NY2d 411, 417 (1996): "A use of property that is no longer authorized due to rezoning, but lawfully existed prior to the enactment of the existing zoning ordinance, is a nonconforming use .... Nonconforming uses are necessarily inconsistent with the land-use pattern established by an existing zoning scheme. "Due to constitutional and fairness concerns regarding the undue financial hardship that immediate elimination of nonconforming uses would cause to property owners, however, courts and municipal legislators have adopted a grudging tolerance of such uses .... The law nevertheless generally views nonconforming uses as detrimental to a zoning scheme, and the overriding public policy of zoning in New York State and elsewhere is aimed at their reasonable restriction and eventual elimination ...."
If the matter at issue were before me on a de novo basis, I would, based on the record, conclude that the existence of a parking lot, with ensuing traffic from 150-180 school buses departing and entering the area at least twice each school day, would have a more deleterious impact on the development of housing on the adjacent property than the erection of the mini-storage facility desired by petitioner. Such facility might well be employed by the new residents and, in any event, would certainly result in less traffic than the continuation of the existing use.
However, as stated above, a reviewing court may not substitute its judgment for that of the BSA, which has certain expertise on this type of issue, when there is substantial evidence to support its conclusion, even though a contrary determination (such as referred to above) would also be sustainable. Thus, the application to set aside the determination of the BSA that the grant of a variance to permit the erection of a mini-storage facility would substantially impair the development of the Copolla property for residential use is denied as it cannot be said that the BSA was arbitrary or capricious in concluding that petitioner failed to satisfy the requirement of paragraph "(c)" of ZR §72-21 that the grant of the variance "will not substantially impair the appropriate use or development of adjacent property".
Presently the eventual development of the Copolla Property for residential purposes can be said to be somewhat speculative in that it has been estimated that it will cost approximately $10,000,000 for environmental remediation as a consequence of a prior use for petroleum storage, and it is not clear that the Developer has the financing to complete the proposed project. Nevertheless the conclusion of the BSA that there is "no reason to disbelieve the developer's apparent conclusion that it could support conforming development sufficient to make a reasonable financial return" cannot be said to lack a rational basis.
It is noted that the Developer did not testify before the BSA or in any manner express an opinion on the present issue. It would perhaps be a more difficult legal question if the Developer, apparently the only party proposing construction for residential use in the area since the 1996 rezoning, came to a contrary conclusion and opined that the sale of residential housing would be made difficult by continuation of the use of the Property as a bus parking lot. [*4]
Regarding the issue of whether the BSA properly considered the residential property across Strickland Avenue (a six-lane, 100 foot wide street) from the Property in determining whether petitioner complied with the provision of said paragraph "(c)", which mandates that "the variance, if granted, will not alter the essential character of the neighborhood or district in which the zoning lot is located", it has been held "that it was not irrational or erroneous as a matter of law for the BSA to have considered comparables from outside the zoning district" [Soho Alliance v. New York City Board of Standards and Appeals, 95 NY2d 437, 442 (2000)]. See also, Francis Development and Management Co., Inc. V. Town of Clarence, 306 AD2d 880 (4th Dept. 2003).
Lastly, it is noted that granting the variance, although no less a "permanent" use than the existing use as a parking lot, would not be in conformity with the public policy enunciated in Toys "R" Us v. Silva, supra, of seeking the "eventual elimination" of nonconforming uses.
In light of my conclusion that the determination of the BSA that petitioner has not satisfied the requirements of paragraph "(c)" of §72-21 should be sustained, there is no need to examine the additional finding that petitioner also did not meet the requirements of paragraph "(e)".
Accordingly, the petition is dismissed without prejudice to the resubmission of an application to the BSA should development of the Copolla Property for residential use not proceed in a diligent manner.
This decision constitutes the judgment of the court.
Date: October 5, 2004__________________
J.S.C.
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