Hudson/Park Neighborhood Association

August 10, 2011 Michael Apostol, Chairman Board of Zoning Appeals/Dept. of Development and Planning 21 Lodge Street Albany, NY 12207 Re: Dear Mr. Apostol: The owner of 453 Madison Avenue (Applicant), Michael DiNapoli, is seeking a use variance to allow him to construct an approximately 700ftsq addition1 onto an historic building in an historic district, which has been operating for a number of years as a preexisting nonconforming use in the largely R-2C and R-2A neighborhood of Hudson/Park. The precipitating event leading to the construction of this addition was a fire in May of 20102 which, according to the Applicant substantially destroyed the structure.3 Applicants property has been, historically, a tavern that was operated on the site since the 1930s, in an historic building that dates back to the mid-19th century. It is a relatively large commercial building, and has been operating as a pre-existing non-conforming use in an area of our neighborhood zoned R-2C or R-2A; consisting of 1-family and 2-family houses. The parcel upon which it is located is zoned C-1. Hudson/Parks (H/PNA) Codes and Zoning Committee and Steering Committee have examined the application, and the membership (in the absence of a scheduled monthly meeting) has been able to examine the application over the association's listserv list. Generally speaking, the membership (via the listserv), and the two committees are in opposition to the grant of this Use Variance, and respectfully request the Board of Zoning Appeals (BZA) to deny its grant. There are five (5) reasons that H/PNA requests the denial of this request for a use variance. I. The application does not meet the legal requirement for the grant of a use variance 453 Madison Avenue Application # 60650

The standards for the grant of a Use Variance are the following: Use variances.

(a)
When considering a request for a use variance, the Board shall require a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the Board that for each and every permitted use under the zoning
1 Steve Barnes, Lark Tavern Building Owner Wants to Expand, Add Apartments http://blog.timesunion.com/tablehopping/24212/lark-tavern-building-owner-wants-to-expand-add-apartments/.

Steve Barnes, Overnight Fire Damages Lark Tavern, http://blog.timesunion.com/tablehopping/15137/overnight-

fire-damages-lark-tavern/.
3 See Michael DiNapoli, Application 60650 for a Use Variance, p. 4; see, also, Steve Barnes, Lark Tavern Landlord Playing Hardball, Claims Building Destroyed, http://blog.timesunion.com/tablehopping/15814/lark-tavern-landlord-playing-hardball-claimsbuilding-destroyed/.

P.O. Box 2313 Empire State Plaza Albany, NY 12220

Phone:518-203-3793 hudsonparkna@yahoo.com

Hudson/Park Neighborhood Association

regulations for the particular district where the property is located:

[1]
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.

[2]
The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or the neighborhood.

[3]
The requested use variance, if granted, will not alter the essential character of the neighborhood.

[4]
The alleged hardship has not been self-created. (b) The Board, when granting a use variance, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven by the applicant and that also will preserve and protect the character of the neighborhood and the health, safety and welfare of the community Taking the requirements in order, the application does not show that the applicant cannot realize a reasonable return because of applicable zoning regulations, instead it suggests that it may take two (2) years for the $100,000 addition to the property which is the only requirement arguably placed upon the renovation by applicable zoning to be offset and, more importantly, applicant has made no attempt to show that for each and every other of the myriad uses to which a property zoned C-1 may be put, he cannot realize a reasonable return; 2) the alleged hardship i.e., the inability to expand a nonconforming use is not unique to this property because there are a number of nonconforming uses in Hudson/Park and its vicinity (e.g., Bomber's Burrito Bar, the Hollywood, the Mobil station at Madison and Lark, etc.) that cannot expand/intensify the existing use, or alternatively, because a $100,000 addition to meet code is an expense that must be borne, where applicable, by all property owners; 3) the grant of this use variance would fundamentally alter the essential character of the neighborhood because, irrespective of the city's code and black letter zoning law, it would allow the expansion of a nonconforming use; 4) although the applicant may assert his hardship i.e., the requirement to make a $100,000 addition) was not self-created, that matter is blurred by applicant's own contention that the structure was substantially destroyed. II. It is black letter law that nonconforming uses shall not be expanded It is black letter law on a national basis that nonconforming uses shall not be expanded and, if such a use is substantially or completely destroyed, the nonconforming use is terminated. In Albany, this policy is in part addressed by city code 375-90(F), which states that no structure devoted in whole or part to a nonconforming use shall be expanded or added to in any manner that enlarges the nonconforming use. The Hudson/Park neighborhood and its surrounding three neighborhoods (Center Square, Washington Park and Park South) that make of the Lark Street area are primarily residential, and zoned R-2C or R-2A. It is a neighborhood of houses and families, art galleries, dance theaters, and a number of thriving small retail businesses, restaurants, restaurants serving alcohol and a very small number of nonconforming uses.

1)

P.O. Box 2313 Empire State Plaza Albany, NY 12220

Phone:518-203-3793 hudsonparkna@yahoo.com

Hudson/Park Neighborhood Association

The property that is the subject of the application is operated as a tavern that has had entertainment more than five (5) days per week, and with a closing time of 4 a.m. To allow the expansion of this use that potentially has entertainment and a 4 a.m. Closing seven (7) nights per week is an error, and the request for a use variance should be denied, particularly so where the applicant has not met the burden to show (among other factors) that he cannot realize a reasonable return on the property because of the zoning, but rather pleads that without the expansion the tenant will be less likely to succeed a conclusory statement that flies against the evidence of the long success of the previously operated tavern on this site, which lacked the 700sqft expansion, and which was quite profitable. We respectfully request therefore that the BZA uphold city code section 375-90(F) and deny the unnecessary expansion of this nonconforming use. III. It is black letter zoning law that if a nonconforming use is substantially destroyed it is extinguished As noted above, the applicant has publicly stated that the subject property (i.e., the nonconforming use) was either substantially or completely destroyed.4 Additionally, the applicant has stated in application #60650 that the value of the property prior to the fire was $90,000 and that his expenses in renovating the property leave him with a loss of $700,000, or approximately seven times the property's value. By either standard the owner's plain statement that the property was destroyed, or his statement that his losses are equal to seven times the value of the premises it is reasonable to conclude the property was substantially destroyed. When a nonconforming use is substantially destroyed, under national and New York precedent, the use is extinguished and the owner may not rebuild the nonconforming use.5 The applicant has stated publicly that his property (the nonconforming use) was destroyed and has testified to the BZA that his cost of renovation exceeds seven times the value of the property, thus requiring the conclusion that the property was substantially destroyed. Under New York and hornbook law, a destroyed nonconforming use shall not be rebuilt. Applicant, however, is not merely rebuilding his nonconforming use, he is expanding it, which is expressly forbidden under the Albany city code. We respectfully request therefore that the BZA uphold city code section 375-90(F) and follow the City's policy of denying the expansion of a nonconforming use, especially here where the applicant has in his own testimony given evidence that the nonconforming use was terminated. IV. An error by a city agency does not provide a legal basis for contravening city code section 375-90(F) The reason this application is before the BZA is because in the process of being issued building permits by the City's Buildings Department, the applicant was apparently required to make alterations to the structure so that the bathroom and kitchen would meet current city code.6 However, it is black letter law that where a renovation to an existing structure is less than a substantial renovation (i.e., less than 50% or greater), existing codes do not apply.
4 See footnote 3 above. 5 See the free legal dictionary, http://legal-dictionary.thefreedictionary.com/Nonconforming+Use; and, see, Salkin, New York Zoning Law and Practice (4ed). 6 See Application 60650, pp. 2 and 9; see also, August 9, 2011 email from Councilman Richard Conti to Hudson/Park listserv, http://groups.yahoo.com/group/Hudson-Park/message/4422.

P.O. Box 2313 Empire State Plaza Albany, NY 12220

Phone:518-203-3793 hudsonparkna@yahoo.com

Hudson/Park Neighborhood Association

Despite this fact, the Buildings Department required the applicant to alter its bathrooms and kitchen in apparent ignorance of the law concerning the applicability of building codes to an existing structure, or because it believed that the structure was substantially destroyed, thus requiring a renovation sufficiently major for the new code(s) to apply.7 However, if the Buildings Department believed the structure was substantially or completely destroyed thus necessitating a renovation to meet new codes it should have denied any and all permits because of the nonconforming use would have been extinguished by operation of law at the moment the property was destroyed. In any case, at some point subsequent to receiving his building permits and the requirement to alter the structure to meet the new code, Applicant and/or the City became aware that a nonconforming use may not be enlarged under the Albany City Code, thus necessitating this hearing. Under whatever rationale the Building Department followed in allowing the reconstruction of this nonconforming use and required an expansion to meet new codes, such rationale does not mandate that the BZA legalize the violation of city code section 375-90(F) by granting a use variance to the subject property. Rather, the BZA has a duty not to be bound by an error of law created by a city agency, the upholding of which would violate city ordinance and policy, and create a harmful precedent concerning the expansion of nonconforming uses in Albany. Hudson/Park therefore respectfully requests that the BZA deny the request for a use variance and instruct applicant to remove the addition to the nonconforming use. V. there is no evidence in the record that the Historic Resources Commission or Planning Department held hearings on the expansion of this nonconforming use Although many matters concerning renovation to existing structures, even historic structures in historic neighborhoods, may be decided at a staff level without a hearing, there is a threshold where a hearing must be held so that affected parties may received their due process. In a case such as this, where the expansion of a nonconforming use is contemplated, particularly so because the subject property is an historic property in a historic neighborhood, it is inarguable that the threshold for having a hearing has been met. However, there is no evidence in the record that such a hearing was held, and a search of city notices reveals no notice for such a hearing or hearings. It is Hudson/Park's contention therefore that irrespective of the application's failure to meet the legal merits necessary for the grant of a use variance, and setting aside for the moment that granting such a variance would be bad policy and contravene the city code, the BZA should not hear this matter until after the application has been the subject of hearings before the HRC and the Buildings Department at which all of the details of this case might be fully examined, and where the neighborhood might be heard fully. Absent such hearings, Hudson/Park argues that it and other affected parties will have been deprived of due process because of the breakdown in procedure (and errors of law) that allowed this case before the BZA at this time. In conclusion, as Hudson/Park has stated above, it believes and respectfully requests that the BZA should deny the grant of this use variance for the reasons stated above and the evidence provided in the application. It was bad law and bad precedent to allow the expansion of this nonconforming use, and the BZA should not compound those errors by granting the use variance sought by applicant. Instead, the BZA should require
7 See application 60650, p. 9.

P.O. Box 2313 Empire State Plaza Albany, NY 12220

Phone:518-203-3793 hudsonparkna@yahoo.com

Hudson/Park Neighborhood Association

applicant to remove the addition he was erroneously required to construct, even though such removal could give rise to litigation by the applicant for the costs for constructing and removing such addition. Alternatively, despite Hudson/Park's opposition, if the BZA believes the evidence of applicant's statements and testimony, and the Buildings Departments apparent conclusion, that the structure was destroyed by the fire, but chooses to ignore the concurrent elimination of the nonconforming use and grant the use variance, Hudson/Park believes it should follow that logic that the original nonconforming use was destroyed (which apparently gave rise to the requirement of meeting a new city code concerning the bathrooms and/or kitchen) and condition the variance upon:

1) a limitation of the operating hours to 12 midnight Sunday to Thursday, and no later than 2 a.m. On Friday and Saturday night, as is a tenet of Hudson/Park's zoning standards,8 and as was announced by the Mayor as a new city policy to remediate the problems caused by late hour drinking establishments; and 2) the elimination of the ability of the subject property (and establishment) to have entertainment seven nights per week.
To repeat one last time, the Hudson/Park Neighborhood Association opposes, in principal, the request for a use variance for the subject property, and respectfully requests that the BZA deny the grant of such variance. Sincerely,

Richard Berkley, Chair Codes and Zoning Committee Hudson/Park Neighborhood Association

8 See, http://www.hudsonpark.org/Hudson_Park_Zoning_Standards.pdf.

P.O. Box 2313 Empire State Plaza Albany, NY 12220

Phone:518-203-3793 hudsonparkna@yahoo.com