BSA variance overturned

Court finds record insufficient to allow commercial use on a Staten Island residential street. After purchasing a single-family house at the intersection of Otis Avenue and Hylan Boulevard in Staten Island, GAC Catering Inc. demolished the house and applied to BSA for a variance to construct a two-story photography and video studio to serve couples having weddings at its nearby catering hall. Despite the lot’s residential zoning, GAC claimed that commercial uses predominated the area and its broker’s attempts to sell or lease the property as a residence failed due to the heavy traffic on Hylan Boulevard. GAC also submitted financial studies showing that residential uses permitted without a variance would not be economically feasible.

After BSA granted the variance, Edward J. Vomero, GAC’s next-door neighbor on Otis Avenue, challenged the decision in court, claiming that GAC’s hardship was selfcreated since it knew when it purchased the lot that it was a residential property. Vomero explained that GAC purchased the property for $275,500, its current value was $384,000 and Vomero found a buyer willing to pay $415,000. Vomero added that he never witnessed a “for sale” sign on GAC’s lot.

Justice Thomas P. Aliotta agreed with Vomero, finding GAC’s hardship self-created since it knew of the residential limitation when it purchased the lot. Nothing in the record supported BSA’s finding that the 5,800-square-foot lot differed from adjacent residentially-developed lots, which were similarly sized. The neighborhood’s mix of commercial and residential uses may make the current zoning unreasonable, the court added, but it does not prove that the lot is unique. The court then cautioned BSA on granting successive variances that effectively erode an area’s zoning district and negate the existing zoning.

In re Vomero v. City of New York, N.Y.L.J. Aug. 23, 2006 at 23 (Rich.Cty.Sup.Ct.) (Michael A. Cardozo, Kerri A. Devine, for BSA; Samuel L. Scollar, for Vomero; Passarello & Larosa, for GAC).

CITYLAND Comment: The City has not yet decided whether to appeal the decision.

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