Opinion
15638/14
06-17-2015
In the Mater of the Application of St. Albans Civic Improvement Association, Inc., Creative Solutions Community Action Center, Inc., Karen Plummer, Michael Pope, Petitioners, v. New York City Board of Standards and Appeals, Respondents.
Michael Pope, pro se, St. Albans, and for St. Albans Civic Improvement Association, Inc., Creative Solutions Community Action Center, Inc., and Karen Plummer, petitioners Zachary W. Carter, corporation counsel, New York (Adam M. Moss assistant corporation counsel), for New York City Board of Standards and Appeals, respondent
Michael Pope, pro se, St. Albans, and for St. Albans Civic Improvement Association, Inc., Creative Solutions Community Action Center, Inc., and Karen Plummer, petitioners
Zachary W. Carter, corporation counsel, New York (Adam M. Moss assistant corporation counsel), for New York City Board of Standards and Appeals, respondent
Leonard Livote, J.
In this Article 78 proceeding, self represented petitioners St. Albans Civic Improvement Association Inc. (St. Albans), Creative Solutions Community Action Center, Inc., (Creative) Karen Plummer and Michael Pope seek a judgment annulling and reversing the resolution dated September 23, 2014 by respondent New York City Board of Standards and Appeals (BSA), which granted variances permitting the construction of a five-story mixed use residential building and community facility; directing respondent BSA to reverse its decision and rescind the Building Construction Zoning Variance; remanding the entire subject zoning variance matter back to the BSA; and staying respondent's decision.
This proceeding concerns real properties located at 118-27 and 118-47 Farmers Boulevard, Queens, New York, (Block 12603, Lots 58 and 63). The subject real properties are located in an R3A zoning district. The Presbyterian Church of St. Albans (Church) has been the owner of Lot 58 for at least 16 years. In April 2011, the Church and Trinity Development Associates LLC (Trinity), entered into a contract to purchase Lot 63 from Royal Holding LLC. Trinity is a for-profit developer.
Lots 58 and 65 are irregularly shaped in the mid-block portion of the block, bounded by Farmers Boulevard, 118th Road, 189th Street and 119th Avenue. The subject lots are currently vacant, although they were historically developed separately with residential buildings. The Church seeks to construct a new five-story building to be used for affordable housing (Use Group 2) and a community facility (Use Group 4). The proposed building does not comply with the zoning district regulations for Use Group 2, as multiple dwellings are not permitted in the R3A zoning district. The proposed floor area ratio (FAR), density, height and parking are contrary to Zoning Resolutions §§ 24-12, 23-141,24-161, 23-22, 23-631 and 25-25. The Use Group 4 religious community facility use is permitted as-of-right in the subject R3A residential zoning district.
An application for zoning variances was filed on behalf of the Church on September 6, 2013. The Church's proposal provided for 67 dwelling units to be dedicated for affordable housing, and a community facility space that would facilitate the Church's youth and senior oriented programming, including life skills courses, educational training, art's instruction, adult care and recreation facilities. The applicant stated that in accordance with ZR §72-21(a), the site's irregular shape is a unique physical condition, which creates an unnecessary hardship in developing the site in conformance and compliance with the applicable regulations, and would result in a development with only 22 dwelling units, and a 30% lot coverage, which represented ten fewer dwelling units and 25% less lot coverage than would be permitted as-of-right. The Church submitted an analysis to demonstrate that if the subject property had a standard shape it would accommodate 32 dwelling units. It stated that in order to be competitive for certain financial programs associated with affordable housing, it was required to construct a minimum number of dwelling units. The Church submitted letters detailing its eligibility for funding from HAD and DHCR.
On November 25, 2013, Community Board No. 12 recommended approval for the variances. In connection with the application, certain members of the BSA conducted a site and neighborhood examination of the subject real properties. On December 13, 2013, then Queens Borough President Helen Marshall issues a recommendation of approval for the project, conditioned on the Church establishing a dialogue with area residents to receive community input on the proposed project.
The BSA sent a Notice of Comments, dated December 19, 2013 to the applicant. On December 20, 2013, Trinity filed a letter with the BSA, discussing the financing for the project. The Applicant, in a letter dated March 3, 2014 and in a revised Statement of Facts and Findings, dated February 2014, which included exhibits, responded to the Notice of Comments. Bernard Harrigan, then president of St. Albans submitted a letter to the BSA, dated March 31, 2014, in opposition to the application.
The applicant provided additional information and documentation to the BSA in a letter dated April 23, 2014, and a revised Statement of Facts. Another Revised Statement of Facts and Findings, an additional exhibits, were submitted to the BSA on May 28, 2014 and June 3, 2014.
The applicant also submitted a land use study. In support of the application, Trinity submitted a letter to the BSA, stating that it is a developer of affordable housing; that it had entered into a partnership with the Church in 2011 and that in April 2011, the Church and Trinity had entered a contract to purchase Lot 63 from the owner. It was further stated that the Church and Trinity had entered into an operating agreement which provided that 51% of the residential portion of the proposed development would be owned by the Church and 49% would be owned by Trinity; that the Church would own the entire community facility space; and that legal ownership of the structure would be accomplished by forming two separate fee simple condominiums, one for the residential space and another for the community facility space. Trinity would manage the residential space for the first six years, and beginning in the seventh year the Church would take over the management of said space. At the end of the 15 year tax credit compliance period, the Church would have the right to purchase Trinity's 49% interest in the residential portion of the proposed building. The Church, in a letter dated July 24, 2014, informed the BSA that Trinity had assigned its interest in the contract of sale dated April 27, 2011, to "The St. Albans Cycle of Life, Inc., a wholly owned subsidiary" of the Church.
The BSA scheduled public hearings on the application on June 24, 2014, after due notice in the City Record, with a continued hearing on August 19, 2014. The Church's pastor, its attorney, the project engineer all testified in support of the application. Additional individuals testified on behalf of and against the application. The BSA voted on the application on September 23, 2014, issued a negative declaration under 6 NYCRR Part 617 and section 6-07(b) of the Rules of Procedure for City Environmental Quality Review, made its findings under ZR §72-21 and granted the application: "to permit on a site within a R3A zoning district, the construction of a five-story mixed residential and community facility affordable housing building that does not comply with the zoning requirements for use, FAR, density, height and parking, contrary to ZR §§ 22-12,23-141,23-22, 23-631,24-161,24-20 and 25-25; on condition that any and all work will substantially conform to drawings as they apply to the objections noted above, filed with this application marked "Received March 5, 2014"-twenty (20) sheets and on further condition
THAT the following will be the bulk parameters of the proposed building: a maximum of five stories, a maximum floor area of 64,718 sq.ft. of floor area (1.45 FAR), a maximum residential floor area of 63,897 sq.ft. (1.43 FAR), a maximum of 67 dwelling units, a minimum of 17 parking spaces, a maximum wall height of 35'-0", and a maximum building height of 55'-0", as reflected on the BSA-approved plans.
THAT this approval is limited to the relief granted by the Board in response to specifically cited and filed DOB/other jurisdiction objection(s);
THAT substantial construction will be completed in accordance with ZR§72-23;
THAT the approved plans will be considered approved only for the portions related to the specific relief granted; and
THAT DOB must ensure compliance with all other applicable provisions of the Zoning Resolution, the Administrative Code, and any other relevant laws under its jurisdiction irrespective of plan(s)/configuration(s) not related to the relief granted."
Self represented petitioners thereafter commenced this Article 78 proceeding and seek a judgment annulling and reversing the BSA resolution filed on September 23, 2014; directing the BSA to reverse its decision and rescind the variances granted to the applicant; remanding the matter back to the BSA; and ordering that the BSA's determination be stayed. Petitioners allege that the BSA's resolution is based upon a false and untrue sworn affidavit of ownership and authorization submitted by the applicant on September 5, 2013. It is asserted that Lot 63 was not owned by the Church on September 6, 2013, when it submitted an affidavit of ownership; that Lot 63 was not owned by the Church's partner Trinity on September 6, 2013; and that Lot 63 was not owned by the Church and Trinity on September 23, 2014 when the BSA voted on the application. It is asserted that the true and actual owner of Lot 63 on September 6, 2013, September 23, 2014 and today is Royal Holdings LLC, and that said entity is not affiliated with the applicant or a party to the application for the variances. It is further asserted that the applicant submitted a defective assignment of contract, in that the assignee The St. Albans Cycle of Life Inc. did not exist on April 27, 2011. It is asserted that the BSA's failure to require the applicant to submit proper proof of its ownership of Lot 63 constitutes procedural error and that the BSA erroneously granted a zoning variance to an applicant who does not have actual title to the entire proposed construction site.
Petitioners allege that the BSA, in citing Westchester Reform Temple v Brown (22 NY2d 488 [1968], as one of the reasons for granting the variances, is misplaced as a matter of law. It is asserted that the Applicant's proposed project is designed primarily to provide affordable housing; that this is not a religious function nor is it a religious purpose; and therefore the more lenient standard for granting a variance to a religious institution for religious purposes is not applicable to this case.
Petitioners allege that the BSA erred in its reliance upon the applicant's statement that the proposed site is irregularly shaped. It is asserted that the applicant failed to provide any tangible evidence that the property is irregularly shaped when compared to other similar lots determined to be regularly shaped reflecting the general conditions of the neighborhood.
Petitioners allege that the BSA erred in its reliance on the applicant's statement that an unnecessary hardship exists in developing the site. It is asserted that any hardship that may exist is self created, as the Church owned Lot 58 for 16 years, and claims to have recently acquired Lot 63, and area surrounding Lot 63 was re-zoned to R3A in 2007.
Petitioners also allege that the BSA erred when it relied upon the applicant' statement regarding the activities to be held at the proposed community facility. It is alleged that said activities are not inherently religious, and that the proposed floor area for these activities would utilize a very minuscule and insignificant part of the total space. Petitioners allege that true purpose of the project is to construct a five-story building with 67 apartments in order to generate revenue for the Church, and that the proposed community facility is a mechanism to allow the Church to qualify for relief and exemptions that it would otherwise not be entitled to.
Finally, petitioners allege that the BSA erred when it relied the Environmental Assessment Statement, and alleges that said statement contained 14 false statements or answers.
Respondent BSA asserts that its determination was neither arbitrary nor capricious, nor an abuse of discretion and is supported by the evidence in the record and the law. It is asserted that there is substantial evidence in the record to support the Board's Resolution. Respondent asserts that it made the five specified findings of fact required by Zoning Resolution §72-21; that it complied with SEQRA/CEQR, as it took a "hard look" at the proposed development, including its potential impacts and concluded that the project will result in no significant adverse environmental impacts; that the BSA's determination that a full environmental impact statement (EIS) was not needed was neither irrational nor illegal; and that petitioners' arguments regarding the ownership of the subject real property are irrelevant, unavailing and unsupported by the administrative record.
At the outset, the court notes that St. Albans and Creative's claims were not properly before this court, as a corporation is required to appear by counsel (CPLR 321). It is noted that self represented petitioners Karen Plummer and Michael Pope do not state in their affidavit in support of the order to show cause, or in the petition that they are attorneys admitted to practice in New York State.
The BSA is comprised of experts in land use and planning and is the ultimate administrative authority charged with enforcing the New York City Zoning Resolution (see Matter of Menachem Realty, Inc. v Srinivasan, 60 AD3d 854 [2nd Dept 2009]; Matter of Mainstreet Makeover 2, Inc. v Srinivasan, 55 AD3d 910 [2nd Dept 2008]). Judicial review of a determination by the BSA is limited to whether its determination was illegal, arbitrary, or an abuse of discretion, and whether it had a rational basis and is supported by evidence in the record (see Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals, 95 NY2d 437 [2000]; see also Matter of Vomero v City of New York, 13 NY3d 840 [2009], rev'g 54 AD3d 1045 [2nd Dept. 2008]; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Kettaneh v Board of Standards and Appeals, 85 AD3d 620 [1st Dept 2011]; Russo v City of Albany Zoning Board, 78 AD3d 1277 [3rd Dept 2010]).
It is well established that an agency is to be accorded wide deference in its interpretation of its own regulations and, to a lesser extent, in its construction of the governing statutory law, provided that such interpretation is not irrational or unreasonable (Matter of Gaines v Div. of Hous. and Community Rewewal, 90 NY2d 545, 548-549 [1997]). The BSA's interpretation of the applicable zoning resolution is entitled to deference, and this Court may not substitute its judgment for that of the zoning board, "even if the court might have decided the matter differently" ( Matter of Toys "R" Us v Silva, 89 NY2d 411, 419 [1996]; see also Matter of SoHo Alliance v New York City Board of Standards and Appeals, 95 NY2d 437, supra; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539 [1984]; Parkway Village Equities Corp. v Board of Standards and Appeals of the City of New York, 279 AD2d 299 [1st Dept 2001]).
"[W]hile religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use than an application for another use and every effort to accommodate the religious use must be made" (Matter of Gospel Faith Mission Intl., Inc. v Weiss, 112 AD3d 824 [ 2d Dept 2013], quoting Matter of Genesis Assembly of God v Davies, 208 AD2d 627, 628[ 2d Dept 1994]; see Matter of Tabernacle of Victory Pentecostal Church v Weiss, 101 AD3d 738, 740[ 2d Dept 2012]; Matter of Capriola v Wright, 73 AD3d 1043, 1045 [2d Dept 2010]; Matter of St. Thomas Malankara Orthodox Church, Inc., Long Is. v Board of Appeals, Town of Hempstead, 23 AD3d 666 [2d Dept 2005]). A local zoning board is required to "suggest measures to accommodate the proposed religious use while mitigating the adverse effects on the surrounding community to the greatest extent possible" (Matter of Genesis Assembly of God v Davies, 208 AD2d at 628; see Matter of Tabernacle of Victory Pentecostal Church v Weiss, 101 AD3d at 740; Matter of Capriola v Wright, 73 AD3d at 1045; Matter of St. Thomas Malankara Orthodox Church, Inc., Long Is. v Board of Appeals, Town of Hempstead, 23 AD3d at 667).
In the proceedings before the BSA, the applicant stated that the Church and Trinity had contracted with the owner of Lot 63 to purchase said real property and documentary evidence was submitted demonstrating that Trinity had assigned its interest in said contract to St. Albans Cycle of Life Inc. Although Ms. Plummer and Mr. Pope appeared and testified at a hearing before the BSA and submitted written testimony and documentary evidence, they failed to raised any issue, or submitted any evidence, with respect to the ownership of Lot 63. Moreover, to the extent that the petitioners now seek to rely upon documentary evidence that was not before the BSA, said documents constitute evidence outside of the administrative record, and cannot be considered by this court (see Matter of Featherstone v Franco, 95 NY2d 550, 554 [2000])
Respondent asserts that the current owner of Lot 63 and Lot 58 is SACL Farmers, LLC , an entity, whose documents were submitted by the applicant. At the time the application for the variance was filed, the Church was the owner of Lot 58, and the Church and Trinity were contract vendees with respect to Lot 63. Therefore, contrary to petitioners' assertions, the BSA's resolution, which granted the property owner and contract vendees' application for the variances was not erroneous. Moreover, as the variances run with the land, a change of ownership does not require a different result (see Matter of Feneck v Murdock, 16 Misc 2d 789, 792 [Sup Ct, Kings County 1958] ).
In determining whether or not to grant a variance, ZR § 72-21 requires the BSA to make "each and every one" of five specific findings of fact, as follows: (1) that the subject property has "unique physical conditions" which create "practical difficulties or unnecessary hardship in complying strictly" with the permissible zoning uses and that such practical difficulties are not due to the general conditions of the neighborhood; (2) that the physical conditions of the property preclude any "reasonable possibility" of a "reasonable return" if the property is developed in strict conformity with the zoning regulations, and a variance is "therefore necessary to enable the owner to realize a reasonable return" from the property; (3) that the variance "will not alter the essential character of the neighborhood" or "substantially impair the appropriate use or development of adjacent property" and "will not be detrimental to the public welfare"; (4) that the:"practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner"; and, (5) that the variance be "the minimum variance necessary to afford relief." The BSA is further required to set forth in its determination each required finding in each specific grant of a variance, and in each denial thereof which of the required findings have not been satisfied. In any such case, each finding shall be supported by substantial evidence of other data considered by the Board in reaching its decision, including the personal knowledge of or inspection
Here, the variance is sought for a mixed use building, and petitioners assert that the proposed use of the property is not religious in nature. The BSA, in its analysis, cited to Matter of Westchester Reform Temple v Brown (supra) and acknowledged that as the Church is a religious institution it is entitled to significant deference under the law as to zoning and its ability to rely upon programmatic needs in support of the subject variance applications. The BSA, however, it also recognized that applicant "did not rely exclusively on its programmatic needs in order to justify the requested waivers; rather programmatic needs satisfaction is a mere component of the (a) finding under ZR §72-21 and the primary component is the irregular shape of the site coupled with the economics of construction of affordable housing."
Petitioners take issue with the BSA's findings as to the uniqueness of the subject property. ZR § 72-21(a), requires that be a finding that the property at issue has "unique physical conditions" which create practical difficulties or unnecessary hardship in complying strictly with the permissible zoning provisions, and that such practical difficulties are not the result of the general conditions of the neighborhood. The unique physical conditions must be "peculiar to and inherent in the particular zoning lot." Here, the applicant stated that the site is a six-sided, irregular lot with an arcing frontage along 189th Street, a diagonal frontage along Farmers Boulevard, a lot width varying from 224 feet to 129 feet, and a lot depth varying from 131 feet to 279 feet. The applicant also stated that the eastern most portion of the site forms a triangle along the arching street line formed by 189th Street and that the triangle narrows from approximately 80 feet in width at its widest point to zero feet. Finally, the applicant also stated that there were no sites within 400 feet of the subject site with even a remotely similar shape.
The applicant asserted that the site's irregular shape is a unique physical condition, and that despite the substantial lot area, it could not be developed for profit, nor could it be feasibly developed as-of-right. In support of this claim the applicant submitted an analysis which assessed the financial feasibility of an as-of-right development consisting of 11 two-family homes, an as-of-right development on a standard lot with the same lot area, and the proposed development. As-of-right plans were submitted showing that if the property was developed pursuant to the ZR, it could only accommodate 11 two-family houses (22 dwelling units). Plans were also submitted demonstrating that if the property was a standard rectangular lot, 16 two-family houses (32 dwelling units) could be constructed pursuant to the ZR. The applicant submitted a report from Trinity which compared the cost of constructing an as-of-right development on the subject property to the cost of constructing an as-of-right development if the property was not irregularly shaped. The Trinity report determined that the cost per home would be greater for the construction of 22 units than it would be for the construction of 32 units, and that given the extra costs of constructing 22 units on the irregular lot, the sale price of each unit would be greater than the market price for a newly constructed two-family home in the St. Albans area. The report thus concluded that it was not financially feasible to develop the property in an as-of-right manner. It was also asserted that in order to be competitive for certain financial programs associated with affordable housing, it was required to build a minimum number of dwelling units.
The applicant further stated that the Church's programmatic needs of providing affordable housing, which it stated was a major concern for its congregation, and a community facility space to provide youth and senior oriented programs, would be furthered by the proposed development. The applicant demonstrated that it could not meet these goals by developing the property as-of-right.
An applicant's claim of uniqueness necessarily requires a comparison between similarly situated lots in the neighborhood with those of the applicant's lot ( Soho Alliance v New York City Bd. of Standards and Appeals, 95 NY2d 437, 441 [2000]). "Unique physical conditions" may include the idiosyncratic configuration of the lot (Soho Alliance, supra). Here, the applicant demonstrated the lot's unique configuration, as there were no sites within 400 feet of the subject site with even a remotely similar shape. This finding is sufficient to support the BSA's determination that the subject property is unique.
Second, the BSA must find that the physical conditions of the property preclude any "reasonable possibility" of a "reasonable return" if the property is developed in strict conformity with the zoning regulations, and a variance is "therefore necessary to enable the owner to realize a reasonable return" from the property. Failure to meet the burden of proof that an as-of-right building in conformity with the zoning requirements will not bring a reasonable return requires denial of the variance.
The applicant asserted that as a non-profit institution it is exempt from establishing that there is reasonable possibility that the development of the site in strict compliance with the zoning resolution will bring a reasonable return under ZR §72-71(b). However, in order to demonstrate the need to construct the number of dwelling units proposed, the applicant assessed the financial feasibility of an as-of-right development consisting of 11 two-family homes, an as-of-right development on a standard lot with the same lot area, and the proposed development. The applicant demonstrated that only the proposed development would allow the Church to construct affordable housing units as well as space for its religious programming, due to the unique conditions of the site. In addition, the applicant submitted a report from a real estate consulting company which stated that if the property was developed, as of right, with 11 two-family homes, it would suffer an annualized capital loss of $225,000.00 and that if the lot was a regular shaped rectangle with 16 two-family homes, as-of-right, it would have an annualized return of 7.05%. The BSA therefore determined that "because of the site's unique physical conditions, there is no reasonable possibility that an affordable housing development in strict compliance with applicable zoning requirements is feasible". The BSA's finding in this regard is sufficient, and given the deference that must be accorded the BSA's determination that the proposed building is necessary to enable the Church to realize a reasonable return from the property, this court determines that the finding was properly made.
The court notes that petitioners do not specifically challenge the BSA's finding with respect to a reasonable return. Rather, petitioners object to the size of the proposed building and to the Church's ability to generate cash revenue from the housing portion of the project. The Church, however, is entitled to seek a variance that will permit it to develop the property and obtain a reasonable return, as opposed to a negative return, or no return at all.
Petitioners do not specifically challenge the BSA finding that the granting of a variance will not alter the essential character of the neighborhood; will not "substantially impair the appropriate use or development of adjacent property;" and, "will not be detrimental to the public welfare" (ZR§72-21[c]). Rather, petitioners challenge the BSA's responses to certain questions in its Environmental Assessment Statement (EAS), and characterize these responses as false. As part of the variance application, an environmental review was conducted in accordance with the State Environmental Quality Review Act, Article 8 of the State Environmental Conservation Law ("SEQRA") and the City Environmental Quality Review, Title 62, Chapter 5 of the Rules of the City of New York ("CEQR"), which found that the proposed development would not have a significant adverse impact on the environment. Once the BSA made this finding, there was no need for the BSA to prepare an Environmental Impact Statement, pursuant to 43 RCNY § 6-07(b).
The stated purpose of SEQRA is to ensure that "a suitable balance of social, economic and environmental factors be incorporated into the planning and decision-making processes of state, regional and local agencies." (6 NYCRR 617.1(d); see also Matter of Coca-Cola Bottling Co. v. Board of Estimate, 72 NY2d 674, 679 [1988]). CEQR, which implements SEQRA in the City of New York, requires City agencies to assess the environmental consequences of their decisions to fund, approve or directly undertake an action (Akpan v Koch, 75 NY2d 561, 567 [1990]; Rules of the City of New York, Title 62, §§ 5-01 et seq.). The environmental review required by SEQRA/ CEQR includes not only effects on natural resources and an area's physical environment, but also includes socioeconomic impacts, impacts on neighborhood character, open space and public health (ECL §8-0105(6); 6 NYCRR 617.2(b)(1); see also Chinese Staff & Workers Assn. v. City of New York, 68 NY2d 359, 365-66 [1986]). The statutory framework provides that a lead agency be identified for the environmental review process and this agency may prepare an EAS and issue a negative declaration if the project does not have the potential to result in any significant adverse environmental impact. Here, the BSA served as lead agency for this process.
In reviewing the agency's determination, "[i]t is not the role of this court to weigh the desirability of the proposed action, choose among alternatives, resolve disagreements among experts, or substitute its judgment for that of the agency" (Fisher v Giuliani, 280 AD2d 13, 19-20 [1st Dept 2001], citing Matter of Neville v Koch, 79 NY2d 416, 424-425 [1992]; see also Akpan v Koch, 75 NY2d at 571). Rather, judicial review is limited to "whether the agency identified the relevant areas of environmental concern, and took a hard look' at them, and made a reasoned elaboration' of the basis for its determination (citations omitted)." (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986]; see also Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d at 348; Matter of Merson v McNally, 90 NY2d 742, 751-52, [2001]; Chinese Staff & Workers Assn. v. City of New York, 68 NY2d at 363).
The role of this court is not to make de novo determinations, and the fact that petitioners would have responded differently to questions posed in the EAS, does not render the BSA's determination erroneous as a matter of law. In its EAS, the BSA identified the relevant areas of environmental concern, took a hard look at them and made a reasoned elaboration of the basis for its determination. The court thus finds that the BSA issuance of a negative determination was neither arbitrary or capricious, nor erroneous as matter of law.
Petitioners challenge the BSA's finding pursuant to ZR§ 72-21 (d) that the claimed hardship was not created by the owner of the premises or a predecessor in title. Petitioners assert that the owners created the hardship in that they contracted to purchase Lot 63 after the area had been redistricted to an R3A district in 2007. The BSA's finding that the hardship was not self-created, but was due to the site's unique physical conditions and the programmatic needs of the Church, has ample support in the record. Furthermore, the BSA properly determined that the recent rezoning, by itself, would not make the site ineligible for a variance.
Petitioners do not challenge the BSA's finding pursuant to ZR §72-21(e)that the variances sought the minimum variance necessary to afford relief. Furthermore, the evidence in the record amply supports this finding.
In view of the foregoing, petitioners' request to annul and vacate the BSA's determination and for related relief is denied, and the petition is dismissed.
Settle judgment.
Dated: June 17, 2015
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Leonard Livote, A.J.S.C.