Owner failed to meet burden of proving actual hardship. The owner of a vacant 16,512-square-foot lot, located at 75-48 Parsons Boulevard in Queens, sought a variance to construct a 20-unit, three-story residential building in an R4 district.
In support of the application, the owner argued that a hardship existed due to the irregular shape of the lot, its adjacency to a school and over-bulky buildings, and its proximity to a busy intersection. It also argued that the lot qualified for greater bulk under the Predominantly Built-up Area provisions that applied to the site until 1989, and also relied on the recent court decision in Pantelidis v. BSA, which reasoned that when a floor area variance is sought, rather than a use variance, a lesser standard of proof should be applied in determining whether a hardship exists. 3 CityLand 14 (Feb. 15, 2006).
BSA denied the application, finding that the shape of the lot did not prevent the construction of a complying development. The owner conceded that the lot would accommodate 14 units as-of-right, but argued that the lot’s shape required one third of the units to be on the ground floor, which would result in less revenue. BSA replied that all residential buildings with units on the ground floor gain less revenue, therefore that was not a unique condition.
BSA also rejected the owner’s arguments that the lot was unique due to its proximity to other bulky buildings, a school and a busy intersection. BSA found that the area’s bulky buildings could not “dwarf” the site because the lot was adjacent to a vacant lot and a two-story school. BSA also noted that school uses in residential districts are prepresumed not to create objectionable influence. In addition, BSA stated that the owner failed to prove that the intersection was any more congested than others in the area and that the building could be set back from the front lot line to mitigate its proximity to the intersection.
BSA determined that the City’s decision to relieve the site of PBA regulations was not a unique physical condition. BSA acknowledged that it will recognize block history when evaluating uniqueness, but the applicant must still provide proof of actual physical features that create difficulties.
With respect to the Pantelidis decision, BSA stated that appellate court decisions have established that, regardless of the type of variance sought, there must be substantial evidence to support each requirement for obtaining a variance.
BSA: 75-48 Parsons Boulevard (361-04- BZ) (Eric Palatnik, P.C., for applicant). CITYADMIN