20-story hotel may be built based on 1963 variance

Court found zoning lot merger to be a technical amendment to prior BSA resolution granting variance; new variance not required, nor is environmental impact statement. BSA granted the College of St. Francis Xavier a variance in 1963 on the condition that Xavier’s proposed development conform to the site plan submitted with the original application. In 2008, Xavier agreed to merge its zoning lot with an adjacent lot owned by Clothing Workers Center Incorporated. Clothing Workers would then purchase the unused development rights on Xavier’s tax lot and sell its tax lot along with the development rights to a developer who intended to construct a 20-story hotel within the merged zoning lot. Xavier and Clothing Workers applied to BSA for an amendment to the 1963 resolution so that the approved site plan would be updated to reflect the zoning lot merger. BSA approved the application, finding that the new site plan did not affect the findings made in the 1963 resolution. BSA concluded that the amendment was technical and findings for a new variance were not required.

Neighbors and a community organization filed an article 78 petition, claiming that BSA should have made findings necessary for a new variance and directed the applicants to produce an environmental impact statement. Justice Walter B. Tolub denied the petition, finding that BSA’s determination that the application did not disturb any of the findings made in 1963 was rational. Tolub reasoned that since the amendment was merely technical, a new variance was not necessary.

Fisher v. NYC Bd. of Standards and Appeals, 2008 N.Y. Slip Op. 52345U (N.Y.Cty.Sup.Ct. Nov. 21, 2008).

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