Sunday, August 20, 2017

Another Request for a Zoning Change

In March 2016, the Common Council amended the zoning laws to include a hotel as a permitted use in the R-S-C (Residential Special Commercial) district in the First Ward. In November 2016, the Council voted to change the zoning for three parcels on Hudson Avenue from I-1 (Industrial) to R-S-C to allow the construction of four town houses on the parcels. The Common Council Economic Development Committee is currently considering a zoning overlay to accommodate a proposal from Stewart's Shops to expand the gas station and convenience store at the intersection of Green Street and Fairview Avenue. At informal Common Council meeting on August 7, the Council heard another appeal to change the zoning. This time, a zoning change is being sought to allow Basil Nooks to open a restaurant in the building at 61-63 North Third Street, in a building that, although it has been vacant for more than a decade, has a long history of being an eating and drinking establishment.

Folks who have lived in Hudson all their lives remember that decades ago this was Christie's Tavern. Code enforcement officer Craig Haigh told Gossips that in 1979, when Candy Lane burned, it was Joe's Tavern. He remembers that, after battling the inferno Columbia and Second, the fire fighters went to Joe's Tavern for a beer. Gossips remembers the building being the Flying Frog Tavern & Grill. It was the Flying Frog up until October 2004, when there was a fire in the building.

Tax records indicate that Nooks bought the building in July 2007. His intention was to make it a restaurant, and he started the work of repairing the damage to the building caused by the fire and renovating it for its intended use. The minutes of the Zoning Board of Appeals indicate that on August 15, 2007, Nooks applied for a use variance "to restore 61-63 North Third Street to its original use as a restaurant and tavern." A use variance was needed because, although the building had been an eating and drinking establishment for decades, the building is in an R-4 District where that is not a permitted. The ZBA scheduled a public hearing on the proposal for September 20, 2007, but the ZBA minutes for 2007 available online are only for June, July, and August, so there is no readily accessible record of what transpired at the public hearing or the decision made by the ZBA about a use variance. Nooks told Gossips that in 2007, he was thinking of retiring from his job with the Department of Public Works and opening a restaurant, but he decided to postpone his retirement and consequently did not pursue the use variance.

Recently, Nooks decided to resume work on the restaurant and applied for a building permit. Haigh reminded him that the building was in an R-4 District, where a restaurant is not a permitted use. It's not clear why Nooks chose to seek a zoning amendment from the Common Council instead of simply applying for a use variance. Nooks says Haigh advised him to do it; Haigh denies having recommended that course of action.

Back when the Common Council was debating whether or not to amend the zoning law to make a hotel a permitted use in an R-S-C District, city attorney Ken Dow advised that a use variance was an "escape valve . . . to save people from having no use of their property." By that standard, it would seem that applying for a use variance would be the appropriate course of action for Nooks, who purchased a building that had in living memory always been a commercial building, with the expectation that its use as an eating and drinking establishment could continue. New York State municipal law establishes four tests that must be met by a property's owner for a use variance to be issued:
  1. the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
  2. the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
  3. that the requested use variance, if granted, will not alter the essential character of the neighborhood;
  4. that the alleged hardship has not been self-created.
When Nooks presented his request for a zoning change to the Common Council, Alderman Tiffany Garriga (Second Ward) expressed her support for Nooks' plan, saying that the neighborhood needed a restaurant and suggesting that the restaurants on Warren Street were beyond the means of most people living in that area.


  1. Go, Basil! I hope that you get approval.

  2. I predict that if this night spot is opened it will be the pain in the ass for this neighborhood. now that the SAVOY has closed this will be the late night hang out ,and you know what brings !. I am not opposing the idea yet Lets see the details.
    State st, Robinson st are up and coming. this restaurant/bar will trouble

  3. Me Nook is a worker I have seen him for the last 16 yrs ,summer and winter working for the city always a smile and never complained . I will be the first to reserve a table. Where is Linda in all this she is a neighbor I suppose she is looking forward to be woken up at 2am with police sirens and flashing light .NIMBY..or front yard

  4. Mr. Nooks cannot obtain a use variance, because his need for one was self created (he did not own the building when the zoning law creating the R-4 district in which his building is located was passed in 1973). The proposed amendment to the zoning law would include restaurants as a conditional use subject to Planning Board approval in residential districts provided it does not involve the removal of a residential unit. Mr. Nooks does not desire to open bar again or serve or sell alcohol. He wants to open a take out food restaurant, with perhaps a few sit down tables if he can secure adequate parking as required by the zoning code. I hope that helps. Thanks for the article Carole.

  5. I might add that the Redburn Development hotel project to which Carole refers (the Wick Hotel), with respect to matter of it obtaining a use variance, was in a different category, because while it was under contract to purchase the property, it was contingent upon obtaining a use variance, and thus the use under the case law interpreting the zoning code, was not deemed to be self created. Thus it could proceed to adduce evidence that it met the other three requisite elements necessary to obtain a use variance. Mr. Nooks owns his property, and thus is ineligible for a use variance under any circumstance unfortunately. Thus my proposed amendment to the zoning code is necessary to give him and others in his category a chance to make their case before the Planning Board for a conditional use permit.