Wednesday, November 29, 2017

Last Night at the Legal Committee

At its penultimate meeting of the year, the Legal Committee took up the task of bifurcating the failed Local Law No. 4 to separate that part of the law that dealt with nonconforming uses in areas zoned residential from the more controversial part of the law which encouraged the redevelopment of accessory buildings for residential uses by eliminating the offstreet parking requirement for such dwelling units.

The impetus for wanting to allow buildings in areas zoned residential to be used for commercial purposes if they were once commercial buildings is the plight of Basil Nooks, who wants to open a restaurant in a building he owns on North Third Street--a building, although vacant for a decade, with a long history of being an eating and drinking establishment. 

Steve Dunn, a member of the Zoning Board of Appeals and the self-appointed adviser to the Legal Committee, cited other examples of commercial buildings prohibited from further commercial use because they are in residential zones. Among those mentioned were 260 State Street, where a corner storefront that once existed has been restored but a commercial tenant cannot be found because of the limitations on the kinds of businesses allowed there, and the now vacant former Ritter's, on South Third Street, which, because it is in an area now zoned residential, could not re-open as the same grocery store and deli that it had been up until it closed in 2011.

The committee and Andy Howard, counsel to the Council, agonized at some length over the language of the proposed amendment to the zoning code, wanting to make sure it would not allow people to turn residential properties into commercial properties, or in the words of Howard, "playing some game of holding a residential building off the market for a year and then trying to make it a commercial building." When they finally settled on the wording, it was agreed that the proposed amendment would be forwarded to the full Council in December, even though it cannot be passed in this calendar year and must be enacted by an almost entirely new Council. Tiffany Garriga (Second Ward), who is the one alderman on the current Council who will remain on the Council in 2018, expressed her commitment to the amendment, "not just to support [Nooks], but" she explained, "he's looking out for the people in the neighborhood," by providing an affordable alternative to fast food for those who wish to eat out but cannot afford to dine in the restaurants on Warren Street.


  1. Why does the law have to be rewritten? Can't there be a variance for special situations?
    Seems like variances are being granted all the time - why not in this case ?

    1. There are two kinds of variances: area variances and use variances. Area variances are granted all the time, because the setbacks required by our antiquated zoning don't reflect the city as it exists. Use variances, which is what would be required here, are not granted all the time. The bar is very high for a use variance. There are four tests for a use variance, one of them being that the hardship, imposed by the zoning, is not self-created. In the case of Basil Nooks, it was self-created. Although the building had been an eating and drinking establishment for decades, there was a lapse in use, so the use he was proposing could not just be grandfathered in.