Blomquist has run afoul of the City's regulatory boards because the one-bedroom apartments he plans for the building will each be 770 square feet, and, accordingly to Cheryl Roberts, city attorney and counsel to the Planning Commission, the city code requires a minimum of 1,500 square for every dwelling unit in a multi-unit building. Gossips, however, maintains that the minimum requirement of 1,500 square foot per dwelling unit pertains to lot size not to the interior size of the dwelling units. A land use attorney and an architect have supported this interpretation. The Planning Commission and the ZBA, however, and now the Legal Committee of the Common Council as well, which is pursuing a change in the code, are being guided by Roberts' reading of the Schedule of Bulk and Area Regulations for Residential Districts.
Roberts was not present at last night's Planning Commission meeting, but she called in her advice. After excusing himself to the hallway to carry on a ten-minute conversation with Roberts on his cell phone, Planning Commission chair Don Tillson reported what Roberts had advised that Blomquist's project is "not something the Planning Commission should recommend" because it would be "doubling the density." Based on this advice from legal counsel, the Planning Commission tabled Blomquist's request for a recommendation until December.
Next Wednesday, the ZBA was expected to wind up the public hearing on this project and make a decision on whether or not to grant the area variance. In October, they left the public hearing open because they were waiting for a recommendation from the Planning Commission, but since that will not be forthcoming, it is unclear what they will do. At their previous meeting, Roberts advised the ZBA, "This is not a variance you can grant." But one has to wonder why not?
Let's assume that Roberts is right, and the code requires dwelling units that are no less than 1,500 square feet. Here's what the New York State General City Code has to say about granting area variances:
In making its determination, the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider:
(i) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;
(ii) whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance;
(iii) whether the requested variance is substantial;
(iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
(v) whether the alleged difficulty was self-created which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.According to the law, the ZBA's principal task must be to weigh the benefit to the applicant if the variance is granted against the detriment to the health, safety and welfare of the neighborhood or community. If Roberts is right, the variance is indeed substantial--the apartments will be only half the size required by code--but that is only one of five criteria to be considered in weighing the benefit to the applicant against the detriment to the community. Given that what is being proposed has no detriment to the health, safety and welfare of the neighborhood and community--indeed it can be argued, and has, that the project will be a significant benefit to the health, safety and welfare of neighborhood and community--it is hard to see how this is not a variance that the ZBA can grant.
Roberts has warned the ZBA that they could be subject to a lawsuit if they grant the area variance, but one has to wonder who would initiate such a legal proceeding. It seems more likely that Blomquist might sue them if they don't.
Of course, Blomquist could achieve his goal of creating five affordable one-bedroom apartments by renovating the existing buildings. That way, he could avoid the tsuris of the regulatory boards altogether and make the people who mourn the imminent loss of two of the few remaining original houses on the block very happy.
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