Plain Language Ends the Agony of 1,500 Square Feet

Nine months of kerfuffle over the alleged requirement that apartments in an R-4 district be 1,500 square feet came to an end last night at the Zoning Board of Appeals. Here's what happened.

In April, the Common Council, after months of deliberation by the Legal Committee, introduced legislation to amend the Schedule of Bulk and Area Regulations in Residential Districts. One of the amendments made 500 square feet not 1,500 square feet the minimum size of an apartment in a multiple unit dwelling. As a matter of procedure, proposed legislation that affects zoning goes to the Planning Board for a recommendation. This happened last Wednesday. At that time, Daniel Tucsinski, counsel to the Planning Board, suggested that the Planning Board advise the Common Council that an interpretation was needed from the Zoning Board of Appeals, whose duty it is to interpret the meaning of provisions in the zoning code. 

At last night's meeting, the ZBA had before them letters from both the Planning Board and Alderman John Friedman (Third Ward), chair of the Common Council Legal Committee, seeking an interpretation. Tucsinski, who is also counsel to the ZBA, presented his own letter, part of which is reproduced below, offering his opinion on the 1,500 square foot issue.

Commenting on the troublesome bit in the bulk and area chart, Tucsinski asserts that it all has to do with lot size: 

The plain language . . . makes it applicable to LOT AREA, including total square feet required, as well as LOT AREA required per dwelling unit. Since the preceding provision does not reference or mention minimal square footage for the actual BUILDING size required for each unit, in my opinion the 6,000 square foot requirement pertains SOLELY to minimum square footage required for the lot, if multiple dwelling units are required within that lot. The 1500 referenced per dwelling unit (square feet) pertains to the LOT AREA per unit and must be read in conjunction with the total square foot required for multiple dwellings within this district.

When asked to decide whether or not they accepted this interpretation, the members of the ZBA, who had struggled in the past with the interpretation that, according to former city attorney Cheryl Roberts, "the City was taking," voted unanimously to adopt the "plain language" interpretation presented by Tucsinski.

The immediate consequence of the ZBA's interpretation was that the proposal for 233, 235, and 237 Robinson Street, which was before them, now required area variances only for side setback and lot coverage. After much discussion of lot line adjustments and easements and encroachments, the ZBA voted unanimously to grant the needed variances on the condition that the lots, which are currently two parcels (233 and 235-237), be consolidated into one.    

           
Although the area variances have been granted, the project may not have completely clear sailing going forward. At last night's ZBA meeting, Craig Haigh, code enforcment officer, explained that the New York State Uniform Fire Prevention and Building Code requires "360 degree access" around any new construction. The proposed new construction--a garage with 800 square feet of living space above--will abut an existing garage and have a common wall with that structure, thus making it impossible, in the case of fire, to access the building from the west.

Also before the ZBA last night was the proposal to rehab the apartments on the second and third floors at 742 Warren Street. There are currently two apartments in the building--one on each floor. The plan was to divide each floor into two apartments, but the resulting four apartments would only be about 750 square feet each, necessitating, according to the previous interpretation of the zoning code, an area variance. Last night, after adopting a different interpretation of the code, the ZBA dismissed the project, since it no longer needed an area variance. 

This all leads one to wonder if the Galvan Initiatives Foundation will return to its original plan to turn the first floor apartments at 202-204 Warren Street into commercial space at the front and living space at the back--a plan that was abandoned in order to avoid having to go before the ZBA for an area variance. One also wonders if Per Blomquist will revive his proposal for 248 and 250 Columbia Street, which was denied the needed area variances in November 2013, primarily because the proposed apartments would be smaller than 1,500 square feet. 
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