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Land Use, Housing & Zoning
118 West 28th Street – Application for a BSA variance to permit the development of a non-conforming twelve story, mixed-use, commercial ground floor and residential above building in an M1-6 district
At the regularly scheduled monthly Community Board Five meeting on Thursday, December 10, 2020, the following resolution passed with a vote of 39 in favor; 5 opposed; 1 abstaining:
WHEREAS, The owner of the Subject Property at 118 West 28th Street (the “Applicant”) filed an application for a use variance filed pursuant to Section 72-21 of the Zoning Resolution of the City of New York (“ZR”), seeking a Board of Standards and Appeals variance of ZR Section 42-00, within an M1-6 zoning district, to permit the development of a twelve (12) story, 124’ tall, 19,300 square foot (9.8 FAR), mixed-use building at the premises (the “Proposed Building”); and
WHEREAS, The Proposed Building would have commercial or retail use at the ground floor and 12 residential condominium units above; and
WHEREAS, The premises has 1,975 square feet of lot area, 20ft frontage and 98.75ft depth, and is located in an M1-6 zoning district between 6th and 7th Avenues, wherein residential uses are not permitted as of right; and
WHEREAS, The existing condition of the premises (identified on the City's tax maps as Block 803, Lot 51) is improved upon with a two-story commercial loft building containing approximately 3,520 square feet of floor area (1.78 FAR) with ground floor retail uses and office space on the second floor; and
WHEREAS, The as-of-right building could be developed in conformance with the M1-6 zoning district as a 12-story commercial office (Use Group 6 office) building with storage in the cellar and would contain 17,300-square feet of floor area and rise to a height of 124 feet; and
WHEREAS, The variance is required as the proposed Use Group 2 residential use not conforming with the applicable M1-6 use regulations pursuant to ZR4 2-00; and
WHEREAS, In order to be eligible for a variance under Section 72-21 of the Zoning Resolution, each of the waivers an applicant is seeking must satisfy all five specific findings set forth in the Zoning Resolution and failure to satisfy any one of the five findings would result in a rejection of the application.
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, The Applicant contends that the undersized lot area is uniquely small, having a width of 20 feet and a depth of 99 feet, which applicant contends is not suitable for the as-of-right development of commercial office space and is smaller than 92% of the lots within the study area; and
WHEREAS, The Applicant contends that the development of the as-of-right commercial building would not provide for a reasonable return on investment and result in a net loss of $7,852,406, and the development of the residential Proposed Building would provide a reasonable return on investment and result in a net profit of $4,156,860; and
WHEREAS, The Applicant contends that the development of the Proposed Building would fit well within the character of the neighborhood as there are residential buildings of comparable heights throughout the immediate area; and
WHEREAS, The Applicant contends that the existing condition of the premises is not due to any self-created hardship; and
WHEREAS, The Applicant contends that the Proposed Building would be a minimal variance compared to the as-of-right building; and
WHEREAS, The Applicant has expressed an intention to provide relief for the current commercial tenant and to encourage the tenant to remain in the Proposed Building; and
WHEREAS, The Applicant also seeks a bulk variance as the proposed Building would not be non-compliant with no front setback at six stories or 85 feet, and no 30-foot rear yard required for residential use; and
WHEREAS, An as-of-right building would need to retain the setback and rear yard to be in compliance; and
WHEREAS, Although parts 23-692 & 33-492 of the Zoning Resolution, also known as the Sliver Law, which aims to prevent very tall narrow buildings in certain zoning districts do not apply in manufacturing districts, the Proposed Building is seeking a use change that would make the site an R10 equivalent, where the aforementioned articles would apply and therefore would restrict the height of a residential building; and
WHEREAS, The lot is narrow, but it is not a unique condition, and it would not prevent the development of a commercial or hotel building and the financial analysis evaluates a 8.8 FAR commercial building which does not maximize the available density as well as the possible return on investment, therefore finding (a) is not met; and
WHEREAS, The Applicant did not prepare a financial analysis for hotel use, a use that while requiring a special permit is conforming, and the variance would not be the minimum required variance to relieve hardship therefore finding (b) is not met; and
WHEREAS, The Proposed Building is requesting a variance that in effect would allow not only a new zone, but also additional bulk and would not comply with the required sky exposure plan, thus diminishing sunlight due to the removal of a setback, compared to the as-of-right building, and would have a negative impact on the character of the building, therefore finding (c) is not met; and
WHEREAS, Granting a use variance would amount to spot zoning, a practice that has been very detrimental to proper land use growth of our district, and CB5 recommends a use change should be pursued through a land use action such as a rezoning to properly evaluate, assess and mitigate such use change; therefore be it
RESOLVED, Community Board Five recommends denial of the application for a BSA variance to permit the development of non-conforming 12 story, mixed-use, commercial ground floor and residential above building in an M1-6 district at 118 West 28th Street.