In his advice to the ZBA, Tuczinski made the point that use variances are given to properties, and this property already has a use variance, which was granted in 2004 to enable the owners to open a laundromat and Internet cafe in the building. He also advised that it was the owner and not the tenant who must apply for a use variance, and it is the owner who needs to prove that the current zoning causes unnecessary hardship. Graham-Cora rents and operates the laundromat.
According to New York State municipal law, there are four tests that must be met by a property's owner before a use variance is issued:
- the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
- the alleged hardship relating to the property in question is unqiue, and does not apply to a substantial portion of the district or neighborhood;
- that the requested use variance, if granted, will not alter the essential character of the neighborhood;
- that the alleged hardship has not been self-created.
The ZBA will take up this matter again and perhaps make a decision at its next meeting, which is scheduled for October 17.