BSA granted use, area, and parking variances to permit construction of 13-story residential, commercial, and community facility building. Nicholas Parking Corporation and Ladera, LLC, owners of adjacent properties at 223-237 St. Nicholas Avenue, applied for building permits to develop a 169,192-square-foot, mixed-use building on St. Nicholas Avenue between West 121st and West 122nd Streets in Harlem. The project would include a FRESH program food store on the first floor and cellar, a preschool facility on the second floor, and 164 residential units on the remaining floors. Manhattan Community Board 10 disapproved of the project based upon the proposal’s lack of affordable housing.
On February 23, 2012, the Department of Buildings (DOB) denied the permit to build the project because the site sits partially within an R7A and an R8A/C2-4 zoning district. Part of the proposed FRESH program food store would extend 970 sq.ft. into the R7A district, which does not allow for commercial use. In addition, the proposal calls for only 30 of the 66 accessory parking spaces required by the Zoning Resolution to be off-site at a property one block away instead of on the site itself. Finally, the proposed lot coverage exceeds the maximum amount allowed by the Zoning Resolution by 689 sq.ft. on the corner lot.
The applicants appealed DOB’s denial to the Board of Standards & Appeals (BSA) on March 20, 2012. At BSA, the applicant argued that the project site suffers from unique physical characteristics that limit the site’s economic feasibility under current district regulations. The unique characteristics include the irregular shape of the corner lot, the split zoning of the site, the proximity of the Eighth Avenue subway, and the existence of hazardous materials due to a gas station that previously occupied the site. The applicant asserted that St. Nicholas Avenue runs at a 45 degree angle through an otherwise rectilinear street grid. The street angle and irregular angles of the lots made it impossible to design a building that is symmetrical to the street line and lots. The irregular shape of the lot also creates a practical difficulty in complying with the Zoning Resolution’s lot coverage and use regulations. In addition, the applicant also asserted that the close proximity of the subway made it impossible to use the cellar for on-site parking. The applicant argued that 30 off-site parking spaces were more than sufficient for this project due to the close proximity of the Eighth Avenue subway lines, and 15 nearby off-street parking facilities. With regard to the potential for hazardous substances on the site, the applicant filed an application with the New York State Department of Environmental Conservation for inclusion in the New York State Brownfield Cleanup Program. If accepted, the owner would incur premium construction costs associated with the remediation of the site. Inclusion in the Brownfield program would make the applicant eligible for a Brownfield Tax Credit of $2,331,000 in after-tax credits.
In light of the non-conformity of the applicant’s plan, and the availability of tax credits, BSA asked the applicant for a study of alternative development scenarios that could still produce a reasonable economic return for the owner. The study considered a zoning-compliant development as well as a lesser variance building with non-complying lot coverage but with the required parking spaces and less floor area for the food store. The feasibility study concluded that alternative developments would not result in a reasonable economic return. Further, the applicant maintained that even the Brownfield tax credits did not allow for a reasonable rate of return for a completely as-of-right proposal.
On October 23, 2012, BSA granted the applicants use, area, and parking variances. BSA found that the action would not alter the essential character of the surrounding neighborhood nor impair the use or development of adjacent properties, nor will it be detrimental to public welfare. BSA further agreed that there are unique physical conditions on the site, a hardship not created by the owner, and the applicant’s proposal is the minimum necessary to afford relief. BSA was also satisfied that the proposed building is located in an area with multiple mass transit options, further limiting the need for the required amount of residential parking.
BSA: 223-237 St. Nicholas Avenue, Manhattan (66-12-BZ) (August 14, 2012) (Bryan Cave, LLP/Frank E. Chaney, Esq., for Nicholas Parking Corp. and Ladera, LLC).