Appellate Division reverses lower court in a three-two opinion. GAC Catering Inc. purchased a one-family home on the corner of Otis Avenue and Hylan Boulevard in Staten Island, across the street from its catering business. GAC demolished the house, and applied to BSA for a variance from residential zoning in order to construct a two-story commercial building to be used as a photography studio in conjunction with GAC’s catering hall. In support of its application, GAC claimed that commercial uses predominated the neighborhood, and that its broker was unable to sell or lease the property as a residence because of the heavy traffic on Hylan Boulevard. GAC also submitted an economic feasibility study indicating that development in strict conformity with the current residential zoning would not yield a reasonable rate of return.

BSA granted the variance, and Edward J. Vomero, a next door neighbor, filed an Article 78 petition seeking to annul BSA’s determination. Vomero argued that the hardship was self-created since GAC was aware of the residential zoning prior to purchasing the lot. Vomero submitted proof that a buyer had offered to buy the property for $415,000, and also claimed that because the property was bought for $275,500 and its market value had recently been appraised at $384,000, it was possible for GAC to receive a reasonable rate of return. (more…)

Applicant claimed that slope, location, and soil contamination necessitated variance. Northern LLC applied to BSA for a variance to build a five-story 40-unit residential building with 63 parking spaces at 241-15 Northern Boulevard, an irregularly-shaped vacant gasoline station in Douglaston, Queens. During the hearing process, Northern modified and reduced its proposal. Northern’s fourth version called for a three-story 24-unit residential building and partial subsurface parking lot with 34 accessory parking spaces and three reservoir spaces. The proposal still required a variance from BSA because the proposed development would exceed dwelling unit number, floor area, use, open space, front/rear yard, and sky exposure plane limitations.

The applicant claimed that because of the lot’s sloping condition, the front windows of a complying single-family residence would be nearly flush with the street level. The applicant further claimed that the expense of environmental monitoring and remediation due to the site’s soil contamination would increase construction costs and make as-of-right development that much more infeasible. The owner also argued that the site’s location, at the busy intersection of Douglaston Parkway and Northern Boulevard, was not a marketable location for a one-family as-of-right development. (more…)

Increased costs justified variance for mid-block site along Broadway. B & E 813 Broadway LLC applied to BSA for a variance to construct an 11- story mixed-use building on Broadway between East 11th and East 12th Streets. The 5,069-square-foot development site consists of two merged lots containing smaller two- and four-story buildings which the developer would demolish to make way for the new 129-foot tall building. The proposed development would exceed floor area, height, setback and dwelling count limits, and lack the required open space.

Community Board 2 and the Tenth Street Block Association both opposed, arguing that an as-of-right development was viable on the Broadway site. (more…)

Red Hook Chamber of Commerce sued BSA and City but failed to name owner. In 2003, BSA granted a use variance to 160 Imlay Real Estate LLC to convert a vacant six-story industrial building into 150 luxury condominiums. The Red Hook-Gowanus Chamber of Commerce then filed an Article 78 suit to annul the variance, but failed to include Imlay as a party within the allotted time.

The Supreme Court allowed the case to move forward without Imlay. 3 CityLand 97 (July 15, 2006). The court then ruled in favor of the Chamber, vacated the variance, and returned the matter to BSA to determine whether Imlay could earn a reasonable rate of return for the building under an M2-1 zoning designation. BSA appealed. (more…)

Developer sought to convert site formerly occupied by a gas station. The owner of a site located in an R3-2 zoning district sought a use variance to construct a one-story retail building. The site, located at 146-93 Guy R. Brewer Boulevard, is currently occupied by a former gas station/auto repair facility that was subject to a use variance that expired in 1997.

The owner argued that it could not develop the site for residential use because it is located on a busy intersection, has a history of commercial use, and once stored underground fuel tanks. Both Queens Community Board 13 and Borough President Helen Marshal, however, recommended that BSA disapprove the variance, citing their concerns over the impact the proposed retail establishment would have on adjacent homes to the east of the site. (more…)