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July 6th, 2004

Hardship… SoHo Style

by D. Clark MacPherson

D.O.T, B.S.A., S.L.A., City Planning and zoning by fiat
Issues that affect the daily lives of SoHo residents have wide- ranging implications for our city and the many visitors and tourists who visit each year. In other words, what is good for SoHo is also ultimately good for New York. Politicians and bureaucrats don’t always see it that way because, as one Community Board Chair recently insisted at a meeting that wouldn’t end, there is often a need to “move the agenda.” The problem for us in SoHo is that we and the City bureaucrats may not all have the same agenda. This issue became readily apparent at a recent hearing at the Traffic & Transit Committee meeting of Community Board #2, chaired by Brad Hoylman. While the D.O.T. and D.D.C. have been trying to bring the Houston Street Reconstruction plan to completion, there was a basic misunderstanding between the planners and the residents. The current version of this which has been floating around since 1988 is a plan that involves the rebuilding of the infrastructure below the roadbed, adding several turning lanes, establishing a center island that is elevated (like Park Avenue), and removing one lane on the south side of Houston Street from Avenue of the Americas to West Broadway. The entire plan involves Houston Street from Bowery to Route 9A(West Street). The fatal flaw in this controversial project is not that we have contentious residents fighting City Hall and are against any plan. The problem we have here is a failure to communicate and a need to “move the agenda.”

SoHo and its bordering neighborhood, NoHo, have seen an explosive increase in residential development. In just a few years, dramatic changes have occurred. Not including the effects of 9-11, changes in motor vehicle flow, pedestrian use, and bicycle traffic have occurred. The plan put forth by D.O.T., however, is using a traffic/pedestrian study that dates back to 1998. It is data that is nearly six years old and by law cannot be used in this current project. But D.O.T. needs to “move the agenda.”

The real issue is this:?Ǭ D.O.T. is interested in improving traffic flow on a street that is now, more than ever before, used by a greater number of pedestrians and bicyclists. For years, Houston Street has been a nightmare for parents pushing a baby carriage, seniors, and inattentive residents and tourists alike. Trucks and buses in a rush to reach Varick Street or turn left on West Broadway to get on line at Broome Street – all for the turn into the Holland Tunnel – which creates major bottlenecks that are NOT addressed by this plan. These vehicles would sooner run over a pedestrian than miss a green light. No plan to widen Houston Street near Varick exists and a planned turn lane at LaGuardia Place/West Broadway is an invitation to disaster.

D.O.T. wants to improve traffic flownd “traffic calming” while residents want to reduce traffic flow and increase pedestrian safety. The problem is that Houston Street can never improve traffic flow. Houston funnels into a one lane residential street that feeds the Holland Tunnel lanes onto Varick Street. It flows through an increasingly populous residential corridor where improved traffic flow (a/k/a faster) is detrimental to our residents.

And then we have the reason for “moving the agenda.” Federal money will most likely be taken off the table if D.O.T. doesn’t get this done in the next few months. Are we wrong? Well, we don’t think so. But, if we are, why not do a current traffic study that tells us whether the assumptions (dating from?Ǭ the last one done in1998) are still correct? That would only take another couple of months, by the admission of D.O.T. itself. That’s the ticket to community cooperation ?ɬ along with removal of left turn lanes at West Broadway/LaGuardia Place. Then we can discuss the difference between the vision of Park Avenue and Houston Street.

The B.S.A. (Board of Standards and Appeals) also effects the development of SoHo and surrounding communities. City Planning supposedly articulates the rules regarding height, bulk, and location of new buildings and renovation of existing properties. In the past, B.S.A. has been a highly politicized City agency, which was almost single-handedly responsible for the very unpopular development of two parcels on Houston Street between Wooster and Mercer Streets. Despite the chicanery used by developers to push these two projects past the community, nothing compares with the duplicity and political favors obviously meted out by the previous head of B.S.A., James Chin (reportedly ordered by Giuliani).

According to David Reck, an architect and current Chair of the Community Board #2 Zoning Committee, there is some reason to have hope that the era of political favors has passed. The current Chair of B.S.A. is a woman who appears to be very interested in the will of the community.

Why is this important? The major reason is that City Planning regularly consults with the community’s desires regarding development ?ɬ but, if B.S.A. routinely grants variances that circumvents City Planning rules, we have what is known as “Planning by Variance.” One of most obvious development techniques that is used by developers to exceed the regulations and avoid restrictions issued by City Planning as carefully discussed with community leaders and the Community Board is a little known exception known as “hardship.” This is a word whose use you would normally not recognize in the same context in which a developer uses it. Hardship is claimed when one cannot obtain optimum financial returns under the existing zoning. In other words, if a property exists in an M1-5 zone (Manufacturing) and there are no phone calls from widget manufacturers looking for space in that permitted usage area, the developer may generate financials showing that residential use is the only appropriate use for that site to bring the developer a proper return on his or her investment.

Of course, one might say, didn’t you know this before you bought the property? The legal answer is that it does not matter what the developer knew or thought before he bought it. The law allows for a “hardship” application to convert the property to another use, such as residential. This is the plan of many, if not most, SoHo developers well before a parcel is even purchased. Most observers know that the financial “proof,” the process, and the results sought, are doctored and skewed by the various levels of consultants, architects, lawyers and real estate agents who prepare the variance applications to prove “hardship” to get the sought after results. They want approval to build the tallest, bulkiest residential building possible for sale as condos, regardless of the character or wishes of the community in which it is located. Up to this point, the B.S.A. has been joined at the hip with each and every one of these developers.

Keep an eye on 75 Houston Street, the former location of Lucky’s Juice Joint.

In a previous issue we reported that the landlord had tripled the rent and Lucky’s could not seem to get anywhere with a new lease. Since then, most of the businesses in that building have disappeared as well. Is the market so bad that suddenly there are no tenants that can afford to pay the rent in a building that was only built in the last 15 years? We may be witnessing the precursor of a “hardship” application. The real estate company does the “walk” and provides the “facts” that no tenant could be found to rent the spaces at “market rates.” Ads are placed, records are kept, disappointment abounds. Well, guess we have to make a hardship application!

Politicians should take note. The cat is out of the bag and the community is not happy at being lied to ?ɬ we should start investigating fraud on the part of those developers who abuse and ignore the community’s will. Let’s see if things change at the B.S.A. We’ll keep you posted.

One other agency that has had an equal impact on our quality of life is the S.L.A., the State Liquor Authority. Remember, rangers, the operative word here is “Authority.” This means that, despite what it’s mission statement tells us on their website, it is not responsible to anyone. It is an “Authority.”

Currently, the S.L.A. is headed by Edward Kelly, the Commissioner. It’s an agency that is appointed by none other than George Pataki, a Republican that clearly does not live in New York City. If he did, even he would be unhappy with the problems caused by an agency that appears to believe that no other kind of retail operation is as desirable as a bar or lounge. Especially in lower Manhattan. The S.L.A. has gone out of its way to assure that any possible retail space which can fit a bar in its storefront, should do so:?Ǭ at the expense of our community.

An example of Mr. Kelly’s indifference: Despite the fact that there is a current legal hearing requirement called the “500 foot rule”?Ǭ (the Padavan Law) which basically states that there must be a compelling reason for the S.L.A. to allow another liquor license in a location that has several bars within a 500 foot radius, the S.L.A. continues to rubber stamp beer and wine applications at the very least.

The situation was never more blatant than when a recent SoHo liqour license application in which a lounge attempted to open at 72 Grand Street. It took successful litigation by the community to insure the S.LA.’s rejection of a license by order of Judge Franklin Weissburg.

Interestingly enough, that ruling essentially precluded any other licenses from being issued within 500 feet of that location, re-emphasizing the existence of the “500-foot rule.”

Apparently, the S.L.A. has bent over backwards to allow various routes that law firms like Flynn & Flynn have used in advising their clients. One would think twice about a law firm that accepts clients seeking a liquor license when the father of one of its attorneys was an S.L.A. Commissioner. Seems too cozy, doesn’t it? Recently, on a short block in SoHo a formerly notorious lounge called “Magnum” has attempted a reincarnation as a restaurant known as Caf? Sol. While the Community Board has denied the application twice, the applicants have let it be known that a “Beer & Wine” license was simultaneously being applied for, so as to put everyone on notice that denial was not acceptable.

Notification about this application to residents was minimal. Both times that the issue was placed on the Community Board’s agenda, the information was relayed just slightly too late for it to be included on the printed calendar that is mailed out every month as notice to the public. This oversight, twice in a row, makes one wonder how an experienced law firm like Flynn & Flynn could keep making such a mistake. Where West Broadway meets Grand Street is home to roughly seventeen bars and lounges. Why is this a problem? Imagine having to sleep while this is going on below your apartment: drinking on the sidewalk, placing furniture on the sidewalk, preventing residents from passing, late night brawls, noise and smoke until 4 a.m., occasional gunshots and knifings, drug use and sales, revving of motorcycle engines, gangsters harboring razor blades under their tongues and garbage being strewn on sidewalks and streets. Enforcement of the laws that prevent these activities is minimal to non-existent. To be fair, many of the establishments on West Broadway, Broome and Grand Streets are good neighbors and follow the rules as well as the law. Establishments like Ken’s Broome Street Bar follow all of the rules and serves medium priced food that residents can afford. And, when the law regarding the removal of dumpsters on the sidewalks in SoHo was implemented, Kenn’s took care of it immediately. The Cupping Room Caf? is another responsible restaurant/bar that caters to tourists as well as local people and has an excellent reputation.

But the larger problem involves the disregard shown by the S.L.A. It provides many routes for applicants to obtain a liquor license and it practically rubber stamps Beer and Wine licenses without any review. There is virtually no way for the community to shut down a reviled bar, lounge or restaurant by causing its liquor license to be revoked. When the S.L.A. grants a license without holding a “500-foot rule” hearing, or after being advised of strong community opposition ?ɬ it is committing a version of “Rezoning by Fiat.” Neighborhoods are seriously and negatively impacted and changed by this effect. Subsequent to the successful application of the Padavan Law, the S.L.A. changed its approval tactics and started issuing licenses that did not meet community standards by citing the fact that there is a compelling need being fulfilled by the creation of new jobs. Hitler could have kept the concentration camps open with that excuse.

The S.L.A.’s ignorance, disinterest, or corruption can ruin a community. And, SoHo appears to now be on that short list. It’s turning West Broadway into a bad combination of Coney Island and “Gunfight at the OK Corral.” Listen to the Community Board before you sign off on that next license, Mr. Kelly!

We need a moratorium on any new licenses (Liquor or Beer and Wine) wherever the applicant cannot easily pass a 500-foot rule hearing with genuine community support. (Community Board #3 has already done this). Not support using the S.L.A.’s standards, but the Community Board’s standards. Licenses should be revoked or suspended upon transfer or change of its operation type. And, a new mechanism, one that does not cost a community group $20,000 in legal fees, needs to be put in place for the revocation of a license. A restaurant should not be permitted to morph into a lounge without community approval.

Let’s face it; even an “Authority” should answer to someone. We need a Town Hall meeting on this issue now Mr. and Ms. Elected Official. Even if Mr. Pataki is not listening.

Unless, of course, liquor licenses really are simply “For Sale.”

D. Clark MacPherson

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