Sunday, March 20, 2016

Getting Back to the ZBA

Gossips already reported the news of greatest interest from last Wednesday's Zoning Board of Appeals meeting: the ZBA granted the use variance needed to redevelop 41 Cross Street as a hotel. There were other proposals before the ZBA that night, one in particular which faces a hurdle similar to that faced by the hotel proposal. That is the proposal to build a row of four attached houses on Hudson Avenue.

Building these houses will also require a use variance because part of the proposed structure is an R-3 (Multiple Residence) district and part is in an I-1 (Industrial) district. Houses are not permitted in industrial zones, but interestingly there is already a house in this industrial zone.
ZBA member Steve Dunn contended that a use variance could not be granted because the hardship was self-inflicted; the applicant knew about the industrial zoning when he purchased the property. The ZBA decided to table the application and advised the applicant to appeal to the mayor and the Common Council to change the zoning. 

The I-1 district in question is located in the Waterfront Revitalization Area--the part of the city that is the subject of the Local Waterfront Revitalization Program. When the LWRP was being drafted back in 2006 and 2007, and the Waterfront Advisory Steering Committee still existed, the zoning in this area was a topic discussion. W. B. McGuire Overhead Door had left Hudson and abandoned the site a year or so before, and even though there was already concern about the shortage of affordable housing in Hudson, it was decided that this area would retain its industrial zoning. Some desirable industry might want to locate in the building vacated by W. B. McGuire, and changing the zoning would preclude that. That discussion is reflected in the LWRP, on pages 74-75, where the site and its possibilities are discussed.
Former McGuire's Overhead Doors Property
This prominent site overlooks the South Bay area and is adjacent to residential uses on East Allen Street. Currently zoned industrial, this site includes a well maintained facility with infrastructure that could be used for other industrial processes. The City proposes to maintain the industrial zoning but acknowledges that this site also has great potential for residential, commercial, and recreational uses. A zoning change in the future to accommodate non industrial development also would be consistent with the LWRP.
The building last used by W. B. McGuire has been vacant now for more than ten years. It would seem that the time has come to rezone this section of Hudson and enable the residential development that has been proposed for this location.


  1. What is most curious to me, is why the ZBA decided to table this application and wait for a zoning amendment (where no such amendment has so far been proposed); but saw fit to decide the application for the hotel, where consideration of a zoning amendment is in fact already underway.

    1. You've perfectly encapsulated the contradiction.

      Rest assured that the Alderman who made the hard sell to the ZBA had no "dog in the fight."

      But the ZBA members who didn't know enough to contradict the same Alderman's false legal claim ought to be more concerned about perceptions, the potential merits of their votes notwithstanding.

  2. There is very little land in Hudson that is not already developed, not part of the important (if degraded) natural areas of the North and South Bays, or not property of the prison, the schools or FASNY. What's left, for redevelopment, aside from the odd unbuilt city lot, is exactly this kind of land at the margins of the urban grid -- industrial edges that are either abandoned or occupied in ways that planners would not consider "highest best use." Hudson Avenue is perhaps the best redevelopment candidate, among those edge areas, because it is directly connected to the street grid, and it has enough elevation so that it's not in a potential flood zone. There would be challenges to building there -- only one way in and out, erosion and stormwater issues -- but intensive residential area at an appropriate scale, like these proposed townhouses, should be encouraged there.

  3. A property which is split by a zoning district line, one district which permits the use proposed in the variance, is an excellent candidate for arguing unique hardship; and also an excellent candidate for arguing a hardship not self-imposed. And in fact, there is more than ample case law to support granting use variances for such split-zoned properties. As I said, curious; and curiouser.

    1. It's a hardship (maybe although the applicant said he could have gone industrial with his lot, but for the good of the community, thought needed housing was more beneficial, and good for him, I agree, as a policy matter), but that is but one element. The other element relevant here, is that the hardship must not be self imposed. In this case, it was clear that it was, because the applicant bought the property, knowing, or should have knowing, that it was subject to the split zoning.

      Job one, above policy, in my view is following the law as I understand it. I have no choice. It is my duty, as one honored to serve on the ZBA.

      By the way, I enjoy all of the comments on ZBA stuff, and learn from some of it. Keep the comments coming, be they favorable. or unfavorable, dissing me, or not. I value the input. Thanks.

    2. Keeping the standards high, thank you.