Owner sought to convert cellar space on St. Marks Place to retail. The owner of an East Village residential building sought to amend an existing variance to allow retail use in a vacant cellar space. The space, a 1,000-square-foot portion of a cellar located at 8 St. Marks Place, is currently under a 1970 variance which allows office use, but prohibits any business signs on the exterior of the building other than a small, non-illuminated nameplate.

The owner claimed that expiration of the 1967 Multiple Dwelling Law, which outlawed residential occupancy of cellar space, necessitated the original variance. According to the owner, the original variance must be amended to reflect market changes, which eliminated any demand for office space in the area.

The owner cited the cellar’s 26- year vacancy and the conversion of two pre-existing offices on the same block to retail and restaurant uses as evidence of the lack of office space demand. The owner also pointed out that in 2005 it received no inquiries from potential office tenants after it exerted four-months’ worth of “substantial efforts” to lease the space, which consisted of a sign on the building’s exterior and a web posting.

Manhattan Community Board 3 recommended disapproval of the application, citing the owner’s failure to demonstrate an inability to rent the cellar for office use. The board also accused the owner of prior attempts to rent the cellar illegally for retail use. Local residents and representatives of local elected officials also testified in opposition.

BSA rejected the owner’s market demand claims, finding the two prior conversions and the owner’s marketing efforts as not dispositive. BSA also rejected the owner’s claim of economic hardship. It noted that the basis for relief underlying the original variance was to allow the cellar’s rent revenues to offset the limited return from rent-controlled units on the above-floors. BSA further noted that the building currently included a mix of rent-stabilized and market-rate apartments, and that the market-rate units relieved the owner of the original hardship.

BSA: 8 St. Marks Pl. (142-70-BZ) (Oct. 16, 2007) (Barbara Hair, Esq., for owners). CITYADMIN