Homes for the Homeless, Inc. v. Board of Standards & Appeals

[341] Order and judgment (one paper), Supreme Court, New York County (Faviola A. Soto, J.), entered July 14, 2004, which granted the petition brought pursuant to CPLR article 78 to annul a resolution of respondent Board of Standards and Appeals dated February 3, 2004, insofar as it denied petitioner’s application for a zoning variance to permit construction of a new building, reversed, on the law, without costs, and the matter remitted to the Board of Standards and Appeals for further proceedings on petitioner’s variance applications in accordance with this decision. This appeal concerns the partial denial of a zoning variance for property located on the north side of Rockaway Boulevard, in Queens County. Petitioner Homes for the Homeless (HFH) has been operating transitional housing for families in need on a portion of the property. The site is across from Kennedy Airport, and is surrounded by businesses that support the airport, such as cargo/freight companies, and airline caterers. The property is comprised of three formerly distinct tax lots, which are contiguous, all located in an M-l (light manufacturing) zoning district. Hotels had been built on two of the lots (lot no. 1 and lot no. 11), and were sold to HFH in a foreclosure sale. According to the New York City Zoning Resolution, the hotels were designated Use Group 5, and as such were permitted in the M-l district (see Zoning Resolution § 42-00). The third lot, no. 63, was apparently last used as a mechanics shop. The shop has since been abandoned. HFH’s current use of the property, a philanthropic/nonprofit institution with sleeping accommodations, is designated as Use Group 3. Under Zoning Resolution § 42-00, Use Group 3 buildings, such as the Saratoga Inn, are not permitted in districts zoned for M-l, light manufacturing, purposes. In addition to transitional housing, HFH also provides medical care, food, and life skills training (such as parental and child literacy, education and job skills) to families in need. The facility presently on tax lots 1 and 11 is called the Saratoga Interfaith Family Inn. It houses women and children, and residents stay at the Saratoga for periods ranging from a few months to a year. The Saratoga is essentially self-contained, and it is a considerable distance from any other residential area. Upon receipt from the City of a Request for Proposals for new shelter contracts, HFH applied to the Board of Standards and Appeals (BSA) for a variance. This was necessary so that it could respond to the request for a new shelter proposal. The variance request had two components: (1) legalization of the existing use of the Saratoga Inn; and (2) permission to expand [342] the Saratoga by constructing a third building (partially on lot no. 11, and also on lot no. 63). A grant of the variance would allow petitioner to increase the size of its facilities. The proposal was unpopular and there was substantial objection from community residents, local politicians and community leaders. The BSA held four days of hearings, after which it granted the legalization component of the application, but denied the expansion portion. As to the legalization, the Board found that under Zoning Resolution § 72-21 (a): “WHEREAS, a small portion of Lot 63 is occupied by a nonconforming dwelling structure that was allegedly used most recently as a mechanics shop; . . . “WHEREAS, as to the legalization component, the applicant states that the following are unique physical conditions, which create practical difficulties and unnecessary hardships in developing the site in conformity with underlying district regulations: the lot is irregular in shape, the existing hotel structure on Lot 11 is no longer viable for its intended use and thus is functionally obsolete; and” “WHEREAS, the applicant also states that the existing structure on Lot 11 serves HFH’s existing programmatic needs of providing transitional shelter services to families, and that HFH has an existing contract to provide such services; and” “WHEREAS, only as to the legalization component, the Board finds that the aforementioned unique physical conditions, when considered in the aggregate and in conjunction with the programmatic needs of HFH, create practical difficulties and unnecessary hardships in developing the site in strict conformity with current zoning, and that the finding set forth as ZR § 72-21 (a) has therefore been met as to this component. . . .” However, in denying the expansion component of the variance application, it found: “WHEREAS, the Board while not denying the existence of the serious problem of homelessness in the City, finds that the applicant has not submitted substantial evidence that the unique physical conditions present at the subject site lead to unnecessary hardship or practically [sic] difficulties requiring an expansion of the proposed use and provision of increased shelter and services at the site through construction of a new building, nor has the claim of increased programmatic needs been substantiated, and thus, as to the expansion component, the Board finds that the applicant has failed to provide substantial evidence in support of the finding set forth at ZR § 72-21 (a) . . . .” [343] HFH then brought an article 78 proceeding challenging BSA’s determination. The IAS court found that the BSA had ignored the required considerations of Zoning Resolution § 72-21 (a) and (e), and “based its decision on matters beyond its jurisdiction.” With respect to section 72-21 (a), the court held that in finding that the entire property, including tax lot 63, was unique, it was arbitrary for the BSA to have prohibited HFH’s application to expand the Saratoga onto that unoccupied land. The court also found that under section 72-21 (e) the variances sought were the “minimum relief necessary to enable HFH to house an additional 91 families.” Because the BSA’s order is inconsistent in its explanation of why the legalization, but not the expansion component of the variance applications was granted, we reverse and remand for reconsideration of the application by BSA. Section 72-21 of the New York City Zoning Resolution governs applications for variances, and as relevant, it provides: “Where it is alleged that there are practical difficulties or unnecessary hardship, the [BSA] may grant a variance in the application of the provisions of this Resolution in the specific case, provided that as a condition to the grant of every such variance, the [BSA] shall make each and every one of [five] findings.” Only two of those findings are relevant here. They are: “(a) because of ‘unique physical conditions’ of the property, conforming uses would create ‘practical difficulties or unnecessary hardship;’ . . . [and] (e) [that the variance sought be] ‘the minirrmm . . . necessary to afford relief.’ ” (See Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals, 95 NY2d 437, 440 [2000] [summarizing the provisions of Zoning Resolution § 72-21 (a)-(e)].) In this case, the BSA first found that the entire property sought to be utilized by HFH had “unique physical conditions,” which created “practical difficulties or unnecessary hardship” precluding development in conformity with current zoning. However, in finding the property unique, and the present zoning impracticable, the BSA made no distinction between the property presently housing the Saratoga Inn, and the unoccupied lot no. 63, part of which was to be used for the proposed expansion. The BSA nonetheless bifurcated the land in its determination to approve only the legalization component of the application. The BSA’s determination has also left HFH with a parcel of vacant property which it is unable to utilize (cf. Matter of Ifrah v Utschig, 98 NY2d 304, 309 [2002] [despite denial of variance petitioner was still able to make productive use of his property]). It is settled that zoning boards have broad discretion in [344] considering applications for variances, and that judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion (id. at 308). Further, a zoning board’s determinations should be sustained if they have a rational basis and are supported by substantial evidence (id.). However, courts have repeatedly cautioned that “the board may not base its decision on generalized community objections” (id.; see also Matter of Robert Lee Realty Co. v Village of Spring Val., 61 NY2d 892 [1984]; Matter of Bower Assoc. v Planning Bd. of Town of Pleasant Val., 289 AD2d 575 [2001], lv denied 98 NY2d 604 [2002]; Matter of Church of Jesus Christ of Latter-Day Sts. v Planning Bd. of Town of Clifton Park, 260 AD2d 769 [1999]). Here, the BSA, in the factual portion of its order, did not make any distinctions between the lots in determining that the unique nature of the property makes its present designated use impracticable. In addition, under the present zoning provisions, HFH cannot make any use of lot no. 63. The order provides no basis for review of the rationality of the distinction the BSA has drawn between the legalization and expansion portions of the application under section 72-21 (a) (Matter of Zwitzer v Zoning Bd. of Appeals of Town of Canandaigua, 74 NY2d 756, 757 [1989] [no rational basis for granting partial 4% variance rather than the 7% entreated one]; Human Dev. Servs. of Port Chester v Zoning Bd. of Appeals of Vil. of Port Chester, 67 NY2d 702, 705 [1986] [“none of the asserted reasons (for denying variance) is sufficient ... in the face of (contradictory) admissions”]). Further, because each and every element of Zoning Resolution § 72-21 must be satisfied, the BSA’s determinations under section 72-21 (e) do not justify the unexplained bifurcation without factual support under Zoning Resolution § 72-21 (a). We thus remand for further proceedings before the BSA, including a consistent articulation of its findings under all of the required elements of Zoning Resolution § 72-21. Concur—Mazzarelli, J.P., Ellerin and Gonzalez, JJ.