The decision was not unanimous. With Mary Ellen Pierro absent and Russ Gibson, who is the co-owner of The Barlow and The Croff House, recusing himself, there were only five members voting on the application. The ZBA's newest member, Steve Dunn voted to deny the use variance, although he called the proposed hotel "a great project in concept." The other four members--Lisa Kenneally, Theresa Joyner, Myron Polenberg, and Kathy Harter--voted to grant the variance, and four votes were enough to make it happen.
According to New York State law, there are four tests for the issuance of a use variance:
- 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 unique, and does not apply to a substantial portion of the district or neighborhood.
- The requested use variance, if granted, will not alter the essential character of the neighborhood.
- The alleged hardship was not self-created.
Alderman John Friedman (Third Ward), who was present at the meeting, argued that the hardship was not self-created but in fact was created by the City. He noted that the Common Council, the night before, had taken up the question of zoning in the area, and "the LWRP was determined to be the controlling document." The Local Waterfront Revitalization Program, in a section titled "Southern Waterfront Area Opportunities," states: "The R-S-C zone permits retail stores and banks; personal services stores; professional, governmental or business offices; schools, churches, libraries, museums and art galleries; theaters, assembly halls, bowling alleys and eating and drinking places; hotels (including rooming and boarding houses), motels and clubs, light industry and residential uses." Friedman concluded, "If the City makes a series of zoning changes and proceeds to enact them but overlooks something, who creates the hardship? The City did."
The proposal to redevelop 41 Cross Street as a hotel was just one of the projects before the ZBA tonight. The fate of the other projects before the ZBA will reported in the morning.
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