In the Matter of Soho Alliance,
et al.,
Appellants,
v.
The New York City Board of
Standards and Appeals, et al.,
Respondents.
2000 NY Int. 130
At issue here is the validity of a determination made
by the New York City Board of Standards and Appeals (BSA) to
grant use variances permitting development of two neighboring
properties and issuing a Type I Negative Declaration rather than
requiring an Environmental Impact Statement (EIS). The
The BSA's determination was made after proceedings spanning eight months, and included four days of public hearings and review of an abundance of documentary materials and exhibits. Additionally, the BSA had the benefit of an initial review conducted by the City Planning Commission (CPC). Moreover, because the sites were located within an historic district, the owners sought and ultimately obtained the necessary approval of the Landmark Preservation Commission (see, Administrative Code of City of NY §§ 25-306, 25-307).
In order to issue the variances here, the BSA was
required to find that the proposed development met five specific
requirements: that (a) because of "unique physical conditions" of
the property, conforming uses would impose "practical
difficulties or unnecessary hardship"; (b) also due to the unique
physical conditions, conforming uses would not "enable the owner
to realize a reasonable return" from the zoned property; (c) the
proposed variances would "not alter the essential character of
the neighborhood or district"; (d) the owner did not create the
practical difficulties or unnecessary hardship; and (e) only the
"minimum variance necessary to afford relief" is sought (NY City
This Court's review of the BSA's determination to grant the variances sought is limited by the well-established principle that a municipal zoning board has wide discretion in considering applications for variances. A "board determination may not be set aside in the absence of illegality, arbitrariness or abuse of discretion," and "will be sustained if it has a rational basis and is supported by substantial evidence" (Consolidated Edison Co. of NY v Hoffman, , 43 NY2d 598, 608).
As to the existence of unique physical conditions resulting in practical difficulties or unnecessary hardship, the BSA was entitled to rely on the study completed by the CPC. The CPC found that the "properties have idiosyncratic lot configurations that are generally not duplicated in other parts of the district" in that the properties extended along a lengthy stretch of West Houston Street, a major thoroughfare, and were L- shaped, measuring only approximately 25 feet deep in places. In addition, the CPC study noted that "the properties have been unable to be significantly developed since the widening of [West] Houston Street in 1963" which caused the irregular and unique shape of the lots.
Likewise, the BSA could reasonably rely upon expert
testimony submitted by the owners based upon significant
documentation, including detailed economic analysis, which
Appellants do not seriously dispute that there was
submitted the kind of detailed economic analysis necessary to
provide "dollars and cents proof" to support the BSA's findings
that conforming uses would yield an insufficient rate of return.
Rather, their main objection is that, in part, the exposition of
the owners' expert was based upon comparable properties from
outside the zoning district. In actuality, more than half of the
properties examined were within the district, and virtually all
of the remaining properties within the survey were located in
areas adjoining the district. No inflexible rule exists which
requires, as a matter of law, that an economic analysis to
support a use variance must be restricted exclusively to data on
properties within a particular zoning district. Indeed, the New
York City zoning ordinance's requirement that any proposed
development "not alter the essential character of the
Furthermore, appellants' assertion that the current use of the properties as parking lots yielded a reasonable rate of return was raised for the first time on appeal and, thus, is not properly before us.
As to the BSA's finding that the proposed development
plans would not change the essential character of the
neighborhood, the agency could reasonably rely upon the changes
to the plans of the development made to reflect the Landmarks
Preservation Commission's detailed construction requirements,
which appellants do not challenge, that the two proposed
buildings should have very different outward appearances and yet
each would be designed in a manner consistent with the special
architectural features of the SoHo district. Furthermore, it was
not irrational for the BSA to conclude that the development --
which would bring only an additional 185 residents to the already
For all of the foregoing reasons, it cannot be said that there was an absence of substantial evidence to support the Board's findings as to each of the five requirements necessary to issue the proposed use variances here.
Moreover, the BSA's determination that no EIS was necessary was also neither irrational nor illegal. The BSA took a "hard look" at the potential environmental effects of the proposed development, and sought input from several interested agencies, including the City's Department of Environmental Conservation and the Landmarks Preservation Commission. The BSA also required archaeological studies and soil and groundwater testing. Thus, there was a rational basis for the BSA's determination that there were "no foreseeable significant environmental impacts that would require the preparation of an Environmental Impact Statement."
Accordingly, the order of the Appellate Division should be affirmed, with costs.