APPLICANT Davidoff Malito & Hutcher, LLP by Howard S. Weiss, for Sobro Development Corp

215-08-BZ

CEQR #09-BSA-018X

APPLICANT – Davidoff Malito & Hutcher, LLP by Howard S. Weiss, for SoBRO Development Corp., owners.

SUBJECT – Application August 20, 2008 – Variance (§72-21) to allow a new ten (10) story mixed-use building containing ninety eight (98) dwelling units and ground floor retail use; contrary to use regulations (§32-00). C8-3 district.

PREMISES AFFECTED – 1778-1800 Southern Boulevard, intersection of East 174th Street, Boston Post Road and Southern Boulevard, Block 2984, Lots 1 & 7, Borough of Bronx.

COMMUNITY BOARD #3BX

APPEARANCES –

For Applicant: Ron Mandel.

ACTION OF THE BOARD – Application granted on condition.

THE VOTE TO GRANT –

Affirmative: Chair Srinivasan, Vice Chair Collins, Commissioner Ottley-Brown, Commissioner Hinkson and Commissioner Montanez ...... 5

Negative:...... 0

THE RESOLUTION:

WHEREAS, the decision of the Bronx Borough Commissioner, dated July 18, 2008, acting on Department of Buildings Application No. 210058088, reads, in pertinent part:

“Proposed residential occupancy, Use Group 2 in a C8-3 Zoning District is not permitted as per ZR 32-00 -- obtain Board of Standards and Appeals (BSA) approval”; and

WHEREAS, this is an application under ZR § 72-21, to permit, within a C8-3 zoning district, the proposed construction of a seven-story mixed-use residential/commercial/community facility building, contrary to ZR § 32-00; and

WHEREAS, a public hearing was held on this application on January 27, 2009 after due notice by publication in The City Record, with a continued hearing on February 24, 2009 and then to decision on April 7, 2009; and

WHEREAS, this application is brought on behalf of the South Bronx Overall Economic Development Corporation (“SoBRO”), a not-for-profit entity; and

WHEREAS, Community Board 3, Bronx, recommends approval of this application, conditioned on SoBRO’s agreement to provide enhanced perimeter lighting and windows providing sound attenuation; and

WHEREAS, City Council Member Joel Rivera provided a letter recommending approval of this application; and

WHEREAS, Assemblyman Michael Benjamin and Assemblyman Ruben Diaz, Jr. submitted letters in support of the proposal; and

WHEREAS, the site and surrounding area had site and neighborhood examinations by Chair Srinivasan, Vice Chair Collins, Commissioner Hinkson, and Commissioner Montanez; and

WHEREAS¸ the site is located at the intersection of East 174th Street, Boston Post Road and Southern Boulevard and has a lot area of 11,776 sq. ft.; and

WHEREAS, the site is vacant and with remnants of a gasoline service station that formerly occupied Lot 1; and

WHEREAS, the site consists of Tax Lot 1 and Tax Lot 7, which were under separate ownership on December 15, 1961; and

WHEREAS, Lot 1 has been under the jurisdiction of the Board since September 23, 1932 when, under BSA Cal. No. 251-32-BZ, the Board granted a variance to permit the alteration of an existing building for the operation an automotive repair business; and

WHEREAS, most recently, on October 13, 1987, under BSA Cal. No. 535-87-A, the Board granted an Administrative Appeal to permit the operation of a self-service gasoline station on Lot 1, contrary to Chapter 27-4081(b) of the NYC Administrative Code; and

WHEREAS, the applicant states that operation of the automotive service station was discontinued approximately five years ago and that Lot 7, formerly occupied by a car wash, has been vacant since about 1993; and

WHEREAS, the applicant proposes to construct a seven-story mixed use residential/commercial/ community facility building on the subject site; and

WHEREAS, the applicant proposes to develop 68 Use Group 2 residential (studio, one-bedroom and two bedroom) units ranging in size from 494 sq. ft. to 892 sq. ft.; and

WHEREAS, however, since the site is within a C8-3 zoning district, which does not permit residential development as of right, the requested use waiver is required; and

WHEREAS, the proposed building has the following parameters: a total floor area of 68,336 sq. ft. (FAR of 5.81), including 58,241 sq. ft. of residential floor area (FAR of 4.95); 9,280 sq. ft. of ground floor retail floor area (FAR of 0.79), and 815 sq. ft of community facility floor area (FAR of 0.07); a total height of 69’-0”and a terrace setback at the western portion of the seventh floor; and

WHEREAS, the applicant states that the following are unique physical conditions which create practical difficulties and unnecessary hardship in developing the subject site in conformance with underlying district regulations: (1) the site’s triangular shape; (2) the site’s subsurface contamination and resultant need for remediation; (3) the site’s high water table; and (4) the adjacency of an elevated subway track structure; and

WHEREAS, as to the site’s shape, the applicant states that the triangular shape of the site limits the floor plates for a conforming commercial development; and

WHEREAS, because of the large amount of street frontage in relation to the depth of the lot, there is a high ratio of exterior walls to usable interior space which increases the cost of construction; and

WHEREAS, the applicant states that premium construction costs are associated with the need for such a high proportion of exterior walls; and

WHEREAS, the applicant represents that the irregular configuration of the site would not accommodate efficient floor plates for a conforming development and constrains its development potential; and

WHEREAS, the applicant further represents that the hardship created by the irregular configuration and its consequentially decreased marketability is evidenced by its complete vacancy over the past five years and partial vacancy for 15 years; and

WHEREAS, as to the history of use at the site, as noted above, the site was occupied by an automotive service station for more than sixty years; and

WHEREAS, accordingly, a Phase I Environmental Assessment and Remedial Action Work Plan identified volatile organic compounds associated with the historic use of automotive repair and vehicle storage and metals in the groundwater of the site and in soil vapor above ambient air at the site; and

WHEREAS, the applicant states that as a consequence of its contamination, extracted groundwater must be containerized for offsite disposal or treated in conformance with Department of Environmental Protection requirements; and

WHEREAS, the applicant further states that groundwater at the site was measured from six to ten feet below land surface; and

WHEREAS, the applicant represents that dewatering with the use of multiple sump pumps, well points or other types of dewatering systems will therefore be required during excavation and foundation construction below the groundwater table; and

WHEREAS, the applicant further represents that the unusually high water table will therefore also add construction and maintenance premium costs to the development of the site; and

WHEREAS, the applicant states that an additional hardship is created by the adjacent elevated subway tracts along its Boston Post Road frontage; and

WHEREAS, the applicant represents that this condition requires extraordinary measures to safeguard the elevated structure during excavation; and

WHEREAS, the applicant states that, based on a report by its consulting engineer and discussion with the New York City Transit Authority (“NYCTA”), drilled soldier beams and a lagging wall will be required along Southern Boulevard during excavation to support the soil load; and

WHEREAS, the applicant further states that the NYCTA additionally will require the proposed dewatering system, foundation walls and construction equipment to meet particular engineering specifications; and

WHEREAS, NYCTA review and approval is also anticipated to impose fees for review and inspection, and an expense for the installation of monitoring devices at the project site during construction; and

WHEREAS, the applicant represents that any conforming development at the site would be burdened by the irregular shape of the site, the subsoil conditions, and the need to protect the elevated subway structure; and

WHEREAS, the applicant states that the premium construction costs associated with remediation of the subsurface contamination, dewatering, and protecting the elevated subway structure are approximately $2.7 million; and

WHEREAS, the Board agrees that these unique physical conditions create practical difficulties and unnecessary hardship in developing the site in strict conformance with the applicable zoning regulations; and

WHEREAS, the applicant also states that a use variance is requested based on SoBRO’s programmatic need to provide affordable housing to 68 households with low and moderate incomes; and

WHEREAS, the applicant states that SoBRO is seeking financing from State and City programs including the Department of Housing Preservation and Development (“HPD”) Housing Trust Fund and Participation Loan Program, the Housing Development Corporation and the Division of Housing and Community Renewal Trust Fund to subsidize the proposed development; and

WHEREAS, a letter dated January 23, 2009 from the HPD Assistant Commissioner for Development confirms that financing of the proposed development is contemplated by the agency; and

WHEREAS, the Board agrees that the unique physical conditions cited above, when considered in the aggregate and in conjunction with the programmatic need of the applicant, create practical difficulties and unnecessary hardship in developing the site in strict conformance with the applicable zoning regulations; and

WHEREAS, the applicant need not address ZR § 72-21(b) since it is a not-for-profit organization and the development will be in furtherance of its not-for-profit mission; and

WHEREAS, however, the applicant analyzed two as-of-right alternatives: a four-story and cellar community facility building and a one-story and cellar commercial retail building; and

WHEREAS, the financial analysis indicates that neither of the as-of-right scenarios are financially viable due to the premium costs associated with the unique conditions of the site, while an as-of-right commercialretail building without the associated premium costs would be financially viable; and

WHEREAS, the applicant represents that the proposed variance will not negatively affect the character of the neighborhood, nor impact adjacent uses; and

WHEREAS, the applicant states that the surrounding area is characterized by a mix of residential, commercial and manufacturing uses; and

WHEREAS, as to residential use, the applicant states that R7-1 zoning districts are mapped to the north, east and south of the subject site and that there is extensive surrounding residential development; and

WHEREAS, the proposed building will have a floor area of 68,336 sq. ft. and an FAR of 5.81; and

WHEREAS, the applicant represents that the proposed bulk is consistent with the permitted bulk for an as of right Use Group 4 community facility building in the C8-3 zoning district, which would be permitted a maximum 6.5 FAR; and

WHEREAS, specifically, a building with a floor area of 76,554 could be built as-of-right; and

WHEREAS, the applicant represents that the 69’-0” height of the proposed seven-story building is also consistent with that of the surrounding area; and

WHEREAS, in response to a request by the Board, the applicant provided a graphical representation of the buildings between the Cross Bronx Expressway and East 173rd Street indicating that a substantial number of buildings have heights ranging between 50 and 70 feet; and

WHEREAS, the applicant further represents that, because of varying elevations, nearby buildings which are shorter than the proposed building appear much taller and have a height that is comparable to that of the proposed building; and

WHEREAS, as to the ground floor commercial use, the applicant notes that the proposed as-of-right commercial use on the first floor fits into the neighborhood character; and

WHEREAS, the applicant states that a C4-2 district which permits commercial and residential development is located immediately to the east of the of the site and that commercial overlay districts are mapped along East 174th Street in the R7-1 district to the south of the site, as well as on Boston Post Road immediately to the southwest, and along Southern Boulevard immediately to the southeast; and

WHEREAS, the applicant additionally states that the block to its immediate south bounded by Boston Post Road, Southern Boulevard and 173rd Street is located within an R7-1 district that is mapped with a commercial overlay; and

WHEREAS, as to parking, the applicant states that the low and moderate income residents of the proposed building are expected to generate limited parking demand; and

WHEREAS, the applicant further states that parking demand can be accommodated by its future housing development at 1825 Boston Post Road across East 175th Street (“Crotona Plaza”) which will provide 150 parking spaces, forty percent more than required by the zoning, and that it will continue to explore additional parking opportunities for the tenants of the subject site; and

WHEREAS, based upon the above, the Board finds that this action will not alter the essential character of the surrounding neighborhood nor impair the use or development of adjacent properties, nor will it be detrimental to the public welfare; and

WHEREAS, the Board finds that the hardship herein was not created by the owner or a predecessor in title; and

WHEREAS, as discussed above, the applicant submitted an analysis of two as-of-right alternatives and determined that neither could be supported financially; and

WHEREAS, the applicant initially proposed a ten-story 98-unit building with a total floor area of 94,147 sq. ft. (FAR of 8.0) and a total height of 96’-0”; and

WHEREAS, prior to the hearing, the applicant revised the proposal to provide a seven-story building with a total floor area 68,336 (FAR of 5.81), and a total height of 69’-0”; and

WHEREAS, accordingly, the Board finds that this proposal is the minimum necessary to afford relief and allow SoBRO to carry out its stated needs; and

WHEREAS, thus, the Board has determined that the evidence in the record supports the findings required to be made under ZR § 72-21; and

WHEREAS, the project is classified as an Unlisted action pursuant to 6 NYCRR, Sections 617.6(h) and 617.2(h) of 6NYCRR; and

WHEREAS, the Board has conducted an environmental review of the proposed action and has documented relevant information about the project in the Final Environmental Assessment Statement (EAS) CEQR No. 09BSA018X, dated March 5, 2009; and

WHEREAS, the EAS documents that the project as proposed would not have significant adverse impacts on Land Use, Zoning, and Public Policy; Socioeconomic Conditions; Community Facilities and Services; Open Space; Shadows; Historic Resources; Urban Design and Visual Resources; Neighborhood Character; Natural Resources; Waterfront Revitalization Program; Infrastructure; Hazardous Materials; Solid Waste and Sanitation Services; Energy; Traffic and Parking; Transit and Pedestrians; Air Quality; Noise; and Public Health; and

WHEREAS, the New York City Department of Environmental Protection (“DEP”) Office of Environmental Planning and Assessment has evaluated the following submissions from the Applicant: (1) aMarch 5, 2009 Environmental Assessment Statement; (2) an October 2007 Phase I Environmental Site Assessment; and (3) a June 2008 Remedial Investigation report; and

WHEREAS, the applicant has agreed to implement hazardous materials remediation measures outlined in the June 2008 Remedial Investigation report, pursuant to a Restrictive Declaration executed on March 4, 2009 and submitted to be recorded against the subject property on March 12, 2009; and

WHEREAS, after its approval of a Remedial Action Plan (RAP) and a Construction Health & Safety Plan, DEP will remit a Notice to Proceed to the Department of Buildings (“DOB”); and

WHEREAS, after implementation of the RAP, one or more Remedial Closure Report(s) certified by a professional engineer must be submitted to DEP; subsequent to its approval, DEP will forward Notice(s) of Satisfaction to DOB; and

WHEREAS, DEP has reviewed the applicant’s March 5, 2009 EAS and March 13, 2009 Revised Noise Chapter and has determined that a minimum window/wall noise attenuation of 35 dBA is required in the proposed building to achieve an interior noise level of 45 dBA; and

WHEREAS, no significant effects upon the environment that would require an Environmental Impact Statement are foreseeable; and

WHEREAS, the Board has determined that the proposed action will not have a significant adverse impact on the environment; and

Therefore it is Resolved,that the Board of Standards and Appeals issues a Negative Declaration, with conditions as stipulated below, prepared in accordance with Article 8 of the New York State Environmental Conservation Law and 6 NYCRR Part 617, the Rules of Procedure for City Environmental Quality Review and Executive Order No. 91 of 1977, as amended, and makes each and every one of the required findings under ZR § 72-21 and grants a variance to permit, within a C8-3 zoning district, the proposed construction of a seven-story mixed-use residential/commercial/community facility building, contrary to ZR § 32-00, on condition that any and all work shall substantially conform to drawings as they apply to the objections above noted, filed with this application marked “Received January 9, 2009”-twelve (12) sheets; and on further condition:

THAT any change in ownership, operator, or control of the building shall require the prior approval of the Board;

THAT the above condition shall be listed on the certificate of occupancy;

THAT the parameters of the proposed building shall be: seven stories, a total floor area of 68,336 sq. ft. (FAR of 5.81); a community facility floor area of 518 sq. ft. (FAR of 0.07); a commercial floor area of 9,280 sq. ft. (FAR of 0.79); and a residential floor area of 58,241 sq. ft. (FAR of 4.95); a street wall height and total height (without bulkhead) of 69’-0” and a terrace setback at the western portion of the seventh floor;

THAT the internal floor layouts on each floor of the proposed building shall be as reviewed and approved by DOB;

THAT the issuance of building permits shall be conditioned on the submission of a DEP Notice to Proceed;

THAT issuance of a permanent certificate of occupancy shall be conditioned on the issuance by DEP of a Notice of Satisfaction;

THAT a minimum window/wall noise attenuation of 35 dBA shall be installed in and maintained in the proposed building; and

THAT this approval is limited to the relief granted by the Board, in response to specifically cited and filed DOB/other jurisdiction objection(s) only;