NYC Board of Standards and Appeals Grants Zoning Variance Due to Cleanup Costs

The NYC Board of Standards and Appeals (Board) granted a variance to facilitate construction of a four-story residential building in Marine Park, Brooklyn because of the costs to remediate soil contamination associated with historic uses at the development parcel. (BSA Bulletin No. 15, Vol. 100, BSA calendar no. 254-13-BZ, CEQR #14BSA032K)

The Department of Buildings (DOB) had denied the applicant’s request for a building permit because the proposed floor area exceeded the maximum permitted for building, the initially-proposed twenty-six dwelling units exceeded the maximum permitted for the zoning lot, the proposed building exceeded the maximum aggregate street width of one hundred and twenty-five feet, did not have a required front or side yard, and exceeded the maximum permitted height.  The applicant then requested a variance to permit the building but the community board recommended disapproval of the variance.

As part of the variance application, the applicant prepared an Environmental Assessment Statement (EAS) pursuant to the City Environmental Quality. The EAS revealed that the development site had been used for auto repair in the past and now housed a car wash with an oil change repair bay that extended into the basement. A phase 2 found VOCs, SVOCs and metals to a depth of 12 feet but no impacts to groundwater. The Board held a public meeting that extended over six sessions. The applicant’s counsel contended that the costs to excavate and dispose contaminated soil was approximately $1,.4MM and that the applicant would lose money if it was only allowed to construct the building that was allowed as-of-right.

The Board unanimously approved the variance, finding the hardship was not caused by the applicant or a predecessor in title, but years of industrial use as an auto repair and car wash.  The Board concluded that there was no reasonable possibility that development in strict compliance with applicable zoning requirements will provide a reasonable return and that proposed variance was the minimum necessary to offset the hardship caused by the unique physical conditions of the site. The Board’s resolution provided that the applicant comply the Remedial Action Report (RAP) and Construction Health and Safety Plan (CHASP) prepared in conjunction with the proposed development and submit Remedial Closure Report to the NYC Department of Environmental Protection (DEP) upon the completion of the project confirming that all remedial requirements as set forth in the RAP and CHASP had been properly implemented.

The record does not indicate if the applicant considered applying to the state Brownfield Cleanup Program (BCP) or the NYC Office of Environmental Remediation (OER) voluntary cleanup program or that the Board was even aware of these options. Under either the BCP or the VCP, the applicant could have pursued a track 4 cleanup and would not necessarily have had to excavate all of the contaminated soil which would have eliminated the rationale for the granting of the variance.

Developers with cleanup obligations imposed as a result of the CEQR process should consider enrolling in the OER VCP rather than simply complying with NYCDEP-approved RAPs. In addition to satisfying their CEQR obligations, parties enrolled in the VCP will also be able to receive covenant not to sue as well as be exempt from any fees or taxes that might be imposed if the excavated soil has to be managed as a hazardous waste.

The decision is available Here