Friday, October 18, 2013

Fighting City Hall

Gossips has been following the progress of Per Blomquist's proposal for 248 and 250 Columbia Street as it makes its way through the regulatory boards. In August, the project came before the Planning Commission. According to the applicant, code enforcement officer Peter Wurster had reviewed and approved the plans, but city attorney Cheryl Roberts, who is counsel to the Planning Commission, checked the Schedule of Bulk and Area Regulations for Residential Districts and declared that the proposed project was in violation of the zoning code. According to Roberts, in an R4 district, each unit in a multiple dwelling building must be a minimum of 1,500 square feet. Blomquist is proposing one-bedroom apartments that would be 770 square feet.

In September, the project came before the Zoning Board of Appeals for an area variance. At that meeting, the ZBA did little more than accept the application for a variance and schedule a public hearing, which took place this past Wednesday. Between the September ZBA meeting and the public hearing, Blomquist appeared at the Common Council Legal Committee meeting, at the invitation of committee chair John Friedman, who promised to "fight with him" to get the necessary permits for the building.

Meanwhile, Gossips, at the suggestion of a reader, looked at the chart on which Roberts was basing the claim that all dwelling units in an R4 zone needed to be a minimum of 1,500 square feet, and came to a quite different conclusion: the 1,500 square feet per dwelling unit had to do with the size of the lot not the size of the dwelling unit itself. Here's the relevant portion of the chart. (The entire chart can be viewed here.)

The words Per dwelling unit appear as a subset of Lot area, which seems to indicate that there is a minimum required number of square feet per dwelling unit for the lot on which a multiple-family dwelling sits. The narrative that references this chart (Chapter 325-18 Schedule of Bulk and Area Regulations; density calculation) says nothing about interior square footage. It has all to do with lots.
Schedule of Bulk and Area Regulations. There is hereby established, at the end of this chapter, a Schedule of Bulk and Area Regulations for all zoning districts. Such schedule sets forth regulations applicable to the following area and use dimensions of a parcel: the area of lots; the heights of buildings; the yards and open spaces provided; the minimum floor area ratio; and required off-street parking spaces. Additional off-street loading and parking requirements are contained in Article IV; alternative area or use dimensions and additional regulations, including those related to conservation development and incentive zoning, are contained in Article V.
What seems to be a reference to floor area here has to do with the relationship of building size to lot size. Floor area ratio is defined at in this way: "The Floor Area Ratio is a commonly used real estate metric. Also known by the acronym FAR, the Floor Area Ratio is the ratio of a building's available square footage to the total area of the lot on which the building sits. . . . Cities and towns often use this ratio in their zoning laws . . . to control congestion or help enforce other municipal ordinances."

This past Wednesday, the ZBA held a public hearing on the project. It was hoped the question of 1,500 square feet requirement would be cleared up, but that didn't happened. A letter from Wurster was read aloud stating that the project was being denied a building permit because the size of the apartments would be less than the required 1,500 square feet each. When Blomquist presented the argument that the 1,500 square foot requirement had to do with lot size not the size of the dwelling unit, Roberts told him that he could have challenged the interpretation of the law or applied for an area variance, and he had chosen to do the latter. Later on, when Gossips presented the same argument--that the 1,500 square feet per dwelling unit applied to lot size not to apartment size--Roberts said it was Wurster's interpretation, and the ZBA had to go by it.

Roberts acknowledged that 1,500 square feet seemed an unreasonable requirement, but speculated that the intent of establishing such a large minimum requirement for the size of individual dwelling units within a multiple-family dwelling was to prevent the creation of SROs (single room occupancy). Democratic mayoral candidate Victor Mendolia pooh-poohed the idea, saying that he'd lived in an SRO that was only 70 square feet. When Gossips pointed out that the Habitat houses recently constructed on the same block had a total of 1,200 square feet on two floors, Roberts said that those buildings did not have to meet the requirement because they were single-family homes.

Because the ZBA had not received an opinion from the Planning Commission, it was determined that the public hearing on 248 and 250 Columbia Street would remain open. The ZBA moved on to the public hearing on a use variance for the Hudson Farm Box, but returned to 248 and 250 Columbia Street when Friedman arrived. Soon after his arrival, Friedman and Roberts withdrew to the hallway to confer. When they returned to the Council room, Friedman alternately encouraged the ZBA to "listen to your lawyer" and expressed the hope that "you can find a way to give the variance that's being requested here." Referring to the city's need for small, affordable apartments for young people--singles and couples--coming to Hudson, Friedman said, "Here we have an attempt to solve a critical problem," noting that Columbia County is the oldest county in the state by median age. 

When Roberts warned the ZBA that a 50 percent reduction in the required size was a substantial change, Friedman urged the members to see the request in terms of the city's greater need. "If you look at it in the larger light," Friedman told them, "the substantiality is less." When Roberts cautioned that granting the variance could be considered "arbitrary, irrational, and capricious," Friedman argued that "the arbitrary and capricious standard is overcome by the deliberation" the ZBA members had been engaged in. Roberts, however, had the last word. "This is not a variance you can grant," she advised the ZBA.

The public hearing on this proposal will continue on Wednesday, November 20. It is expected that the ZBA will have a recommendation from the Planning Commission by that time and will, after hearing additional public comment and closing the hearing, vote on granting the area variance. Of relevance to this discussion, it has been made public that October 22 is Wurster's last day as code enforcement officer. He is retiring to operate a fish and chips restaurant in Greenport, in the former Bubba Bean BBQ.

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