<< Back
Land Use, Housing & Zoning
APPLICATION FOR A VARIANCE FOR 118 WEST 27TH STREET TO ALLOW RESIDENTIAL USE IN A M1-6 DISTRICT (BZ Cal No 140-15-BZ)
WHEREAS, 118 West 27th Street is a twelve-story mixed-use building located within an M1-6 manufacturing district; and
WHEREAS, The building has ground floor retail along with existing Loft Law tenants on floors two, three, and seven through twelve; and
WHEREAS, The commercial space on the second floor is currently occupied by a therapist who has occupied the space since 1995 and is "month to month"; and
WHEREAS, The commercial space covering the entirety of the fourth floor has been vacant since 2011; and
WHEREAS, The commercial space covering the entirety of the fifth floor has been vacant since 2014 (but the tenant stopped paying rent in 2012); and
WHEREAS, The commercial space covering the entirety of the sixth floor has been vacant since 2012; and
WHEREAS, The applicant seeks a variance to allow the conversion of commercial space on a portion of the second floor (currently occupied) and floors four, five and six (currently unoccupied):
WHEREAS, The BSA must determine, when granting a variance, that each and every one of five findings identified in Section 72-21 are met
The five findings are:
(a) that there are unique physical conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular #zoning lot#; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise in complying strictly with the #use# or #bulk# provisions of the Resolution; and that the alleged practical difficulties or unnecessary hardship are not due to circumstances created generally by the strict application of such provisions in the neighborhood or district in which the #zoning lot# is located;;
(b) that because of such physical conditions there is no reasonable possibility that the #development# of the #zoning lot# in strict conformity with the provisions of this Resolution will bring a reasonable return, and that the grant of a variance is therefore necessary to enable the owner to realize a reasonable return from such #zoning lot#; this finding shall not be required for the granting of a variance to a non-profit organization;
(c) that the variance, if granted, will not alter the essential character of the neighborhood or district in which the #zoning lot# is located; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental to the public welfare;
(d) that the practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner or by a predecessor in title; however where all other required findings are made, the purchase of a #zoning lot# subject to the restrictions sought to be varied shall not itself constitute a self-created hardship; and
(e) that within the intent and purposes of this Resolution the variance, if granted, is the minimum variance necessary to afford relief; and to this end, the Board may permit a lesser variance than that applied for.; and
WHEREAS, Finding (a) is not met because the alleged conditions are not unique physical conditions:
- The building width is not uniquely narrow. 39% of properties in the midtown south M1-6 districts (on both sides of 6th Avenue) have a building width as narrow or narrower; and
- A mix of residential and non-residential use above the ground floor is not unique. There are 24 buildings in the midtown South M1-6 districts with a mix of residential and non-residential use above the ground floor. There is 525,000 S.F. of non-residential use in those buildings; and
- Presence of two elevators is an amenity and in this case does not pose a constraining condition; and
- Many buildings in the midtown South M1-6 districts have load bearing columns; and
WHEREAS, Even were the BSA to believe that there are unique physical conditions on this site, finding (b) is not met because there is no concrete evidence that any alleged "unique physical conditions" cause an inability realize a reasonable return on the subject site; and
WHEREAS, The continual occupancy of the conforming space on the 2nd floor by a therapist since 1995 and the full occupancy of conforming space on the 4th, 5th and 6th floors through all of 2011 demonstrate that this conforming space can be successfully leased to tenants and that the presence of such "conditions" alleged to be causing a hardship have not impeded strict conformance with zoning since the unlawful introduction of loft tenants in or prior to the 1980s through 2011; and
WHEREAS, Furthermore, no evidence has been presented that the owner actually marketed floor 4 (vacant since 2011), floor 5 (vacant since 2014) or floor 6 (vacant since 2012) and we consequently have no evidence that a prospective tenants would pay less for the subject conforming space than they would for conforming space in buildings immediately surrounding the subject site, which could have potentially provided some support for the claim of a negative economic impact; and
WHEREAS, There are three material inaccuracies in the economic analysis that make it a flawed analysis:
(1) The application underreports projected annual revenue by claiming that no rent would be generated from leasing the largest room in the cellar (seen on Drawing No. BSA-100) that is in fact used exclusively by the retail tenant; and
(2) The application underreports projected annual revenue by $112,700 per year by using $30 a square foot for commercial rent on the revised Schedule C submitted to CB5 on September 28, 2015 rather than $40 a square foot for office rent. On Schedule E, the applicant states that $40 is the adjusted price per S.F. that will be used for office rent on this site.
(3) The applicant inflates the "cost" to buy the building by $370,300 through incorrectly rounding the price per developable S.F. on the revised Schedule C submitted to CB5 on September 28, 2015; and
WHEREAS, We seriously question a number of the assumptions used by the applicant in their economic analysis used to value a realistic acquisition of the subject site and used to value the as-of-right development; and
WHEREAS, Finding (c) is not met as the proposed variance would "alter the essential character of the neighborhood" by facilitating a loss of Class B office space which is in extremely high demand by small businesses in the community district; and
WHEREAS, In an August 28, 2015 memorandum representative of the applicant, Jack Freeman, confirms that the "proposed development's "feasibility" requires the removal of the existing tenant of the conforming space on the 2nd floor;" and
WHEREAS, Finding (c) is additionally not met because the proposed variance, if granted, would be "detrimental to the public welfare" by facilitating the eviction of a therapist who has been a lawful tenant of the conforming space on the 2nd floor since 1995; and
WHEREAS, Even if the BSA believes that the presence of residential use in the building is a "unique physical condition" resulting in a hardship, finding (d) is not met because each and every one of the 12 residences was introduced illegally by the owner or by a predecessor in title and therefore the alleged hardship would, in this instance, be considered self-created through unlawful activity and should not be rewarded by the BSA; and
WHEREAS, Even if the BSA were to accept other arguments in this case, finding (e) is not met as the therapist occupying the conforming space on the 2nd floor since 1995 pays rent of $2,500 per month (according to an August 28, 2015 email from Neil Weisbard) and because there has been zero evidence of "practical difficulties or unnecessary hardship… in complying strictly with the #use# or #bulk# provisions of the Resolution" so far as the 2nd floor space is concerned; and
WHEREAS, While failure to meet any single finding would be sufficient grounds for a BSA denial, CB5 believes that the proposed variance fails to meet each and every one of the required five findings; and therefore be it
RESOLVED, Community Board Five recommends denial of the application for a variance pursuant to ZR §72-21 for 118 West 27th Street to allow residential use at 118 West 27 Street in an M1-6 district.