SoHo Alliance v. New York City Board of Standards & Appeals

264 A.D.2d 59, 703 N.Y.S.2d 150, 2000 N.Y. App. Div. LEXIS 2041
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 24, 2000
StatusPublished
Cited by1 cases

This text of 264 A.D.2d 59 (SoHo Alliance v. New York City Board of Standards & Appeals) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SoHo Alliance v. New York City Board of Standards & Appeals, 264 A.D.2d 59, 703 N.Y.S.2d 150, 2000 N.Y. App. Div. LEXIS 2041 (N.Y. Ct. App. 2000).

Opinions

OPINION OF THE COURT

Friedman, J.

This appeal concerns the propriety of variances granted for two neighboring lots in Manhattan, one located at 19/35 West Houston Street and the other at 55 West Houston Street. From the early 1900’s until 1951, 19/35 West Houston Street was occupied by a four-story light industrial factory with retail space on the ground floor. The occupancy of 55 West Houston Street was similar. Prior to 1963, the buildings on these properties were demolished in order to widen West Houston Street. As a result, by 1976, 19/35 West Houston Street was improved by only a 35-car parking lot with a booth for an attendant. The use of 55 West Houston Street took the same course, and from the 1960’s to 1990 it was improved only by a gasoline service station, car wash, and parking lot. Today, like 19/35 West Houston Street, it is used solely as a parking lot.

As to the configurations of these properties, 19/35 West Houston Street occupies the entire 200-foot block front between Mercer and Greene Streets. It is L-shaped with a width of 50 feet on Mercer Street and only 25 feet on Greene Street. 55 West Houston Street, which is on the next block, occupies the entire 200 foot block front between Greene and Wooster Streets. It is also L-shaped with a width of 45 feet on Wooster Street and only 20 feet on Greene Street.

Both of these properties sit on the northernmost boundary of the SoHo Cast Iron Historic District, a district landmarked for its unique architectural character. The sites are also located in an M1-5A zoning district, which permits manufacturing and related uses. Pursuant to New York City Zoning Resolution (ZR) § 41-11, however, new residential development is not permitted in the zoning district except for joint living-work quarters for artists. Such quarters are defined as “one or more rooms in a non-residential building * * * with lawful cooking [61]*61space and sanitary facilities meeting the requirements of the Housing Maintenance Code” and occupied by a person certified by the Department of Cultural Affairs as an artist (see, ZR § 12-10).

The controversy before us has its beginnings in 1997, when respondents, owners of the two lots (the owners), sought to build on them. The owners proposed to construct two buildings that would house a total of 185 people, have retail space on the ground floor, and occupy the entirety of each respective lot.

Since the subject lots were within the historic district, the owners were required to seek approval from the Landmarks Preservation Commission (see, Administrative Code of City of NY § 25-307), which they did. After more than nine months of review, the Commission approved the project and issued a Certificate of Appropriateness, concluding that the design of the buildings was appropriate for the historic district.

In approving the project, the Landmarks Preservation Commission required that the project’s architects design two buildings that were substantially different from one another in design, massing, and size in order to avoid creating a visual gateway to SoHo or the impression of twin buildings. In addition, the Commission required higher than typical floor-to-floor heights, as well as extensive detailing of the facades, so that each of the buildings would be consistent with the cast iron facades that typify the historic district. The extensive review process culminated in a design in which one building would be nine stories (with portions of the building being only seven or eight stories) containing 60 apartments, and the other building would be six stories (with portions of the building reaching eight stories) containing 43 apartments.

The owners also applied to the New York City Department of Buildings for permits to construct the buildings. Since the proposed development would be in violation of M1-5A zoning requirements, their applications were denied. Accordingly, the owners applied to the Board of Standards and Appeals (BSA) for variances permitting them to construct the two buildings that the Landmarks Preservation Commission had determined were historically appropriate. Opposition to the project ensued.

Among the concerns raised by the opponents of the project were the circumstances that the proposed buildings would be occupied by non-artists and contain small apartments averaging approximately 770 square feet in size, instead of the minimum 1,200 square feet required by the zoning law for artist lofts (see, ZR § 43-17) or the large 2,500 to 3,500 square foot [62]*62lofts that are typical in the SoHo area. This, it was argued, would destroy the character of SoHo, which is a community of artists who live and work in their lofts. The SoHo Alliance (a neighborhood association founded by local artists and business people) expressed its opposition by noting that eliminating the present use of the properties as parking lots would be detrimental to local businesses because, on weekdays, only commercial parking is permitted in the interior of SoHo. Some residents expressed the concern that the height of the buildings would diminish light to surrounding properties.

After proceedings stretching over eight months, including four public hearings, and examination of 1,612 pages of documentary materials, the BSA granted the variances. Thereafter, the opponents commenced a CPLR article 78 proceeding to annul the BSA’s determination. Supreme Court held in favor of the opponents. Contrary to Supreme Court, we believe that the BSA’s determination was neither arbitrary nor capricious and was supported by substantial evidence. Accordingly, we reverse.

In order to obtain a variance, New York City Zoning Resolution § 72-21 provides that five requirements must be met: (a) there must be unique physical circumstances, including irregularity, narrowness or shallowness of lot size or other physical conditions peculiar to the zoning lot, and that as a result of such conditions, practical difficulties or unnecessary hardship arise in complying strictly with the use or building provisions of the Zoning Resolution; (b) the land in question cannot yield a reasonable return if used only for a purpose allowed by the Zoning Resolution; (c) the variance, if granted, will not alter the character of the neighborhood or district where the land is located; (d) the practical difficulties or unnecessary hardship have not been created by the owner (except that, where all other findings are made, the purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship);1 and (e) the variance is the minimum necessary to afford relief.

In assessing whether the BSA properly concluded that the requirements for a variance were met, we begin with the well-established rule that local zoning boards have wide discretion in considering applications for variances and the judicial function in reviewing a zoning board’s determination is limited [63]*63(see, Matter of Fuhst v Foley, 45 NY2d 441, 444; Matter of Cowan v Kern, 41 NY2d 591, 598). “A zoning board determination should not be set aside unless there is a showing of illegality, arbitrariness or abusé of discretion. (Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309.) That is to say, the determination of [the zoning board] will be sustained if it has a rational basis and is supported by substantial evidence [citations omitted]” (Matter of Fuhst v Foley, supra, at 444). The board’s determination is entitled to substantial judicial deference

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Bluebook (online)
264 A.D.2d 59, 703 N.Y.S.2d 150, 2000 N.Y. App. Div. LEXIS 2041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soho-alliance-v-new-york-city-board-of-standards-appeals-nyappdiv-2000.