By KEITH GRANT
In a lawsuit filed in state Supreme Court, the residents charge that the variance granted by the zoning board in July to Bay Club, Inc., is a stark violation of the criteria governing such cases. Both Bay Club and the zoning board are named in the suit.
Plans call for the construction of 20 semi-attached condo units on the waterfront property, which is zoned strictly for business use. The suit argues that because Bay Club owner Ebrahim Shokrian knew of the land's zoning restrictions before buying it, known as "self-created hardship," the board was prevented from granting the variance and giving the go-ahead on his intended construction.
"This is state law that the zoning board can't grant a use variance with self-created hardship," said Charles Kovit, lawyer for the residents. "[The board] did so knowing zoning regulations prohibit the use in mind. This is definitely a case of self-created hardship."
Allen Huggins, the zoning board's corporation counsel, was unavailable to comment, but Corey Klein, Long Beach's assistant corporation counsel, said the board's position is that "the decision was proper and the corporation counsel was going to court to support the decision of the zoning board." Michael Zapson, attorney for Bay Club, Inc., and a former city councilman now serving in the Nassau County Legislature, could not be reached to comment for this article.
The board found in granting the variance that the hardship in this case was not self-created by Bay Club's purchase of the property, but by the "existing state of the property," an inability of the property to support any type of business use.
The lone business use the land had seen in decades was as the home of Marineland, a boat-storage, repair and marina business. Beginning in late 1999, Mr. Shokrian sought to buy the Reynolds Channel property for development, but his plans were twice sunk by the zoning board. A year ago, the board cited Mr. Shokrian's failure to respond to the community's concerns over such issues as traffic and parking when it rejected his plan for 23 condominium units. Four months later, Mr. Shokrian bought the property for $2.4 million under the umbrella of his newly-formed Bay Club, Inc., but plans for a 20-unit complex were rejected largely because of the presence of 35 boat slips in the proposal. Zoning-board members feared the extra slips could be leased out to non-condominium residents.
In June this year, Bay Club's plan for 20 units with 20 boat slips was presented to the zoning board, along with much opposition from area residents, particularly those who live across the street from the property. These residents, who include the lawsuit's petitioners Margret Dreikausen, Anthony Bianchini, Theresa Arata, and Edward Arata, believe the area will suffer aesthetically, environmentally and financially from the development. While acknowledging that residential use is preferential to business use, the neighbors believe the current plan will create a wall blocking off views of the channel, cutting off breezes from the channel and reducing the community's overall quality of life.
"Probably if they lowered the number of units or went to single-family houses, it would be okay with the residents," attorney Kovit said.
Nonetheless, the board granted the variance to Mr. Shokrian in July despite Mr. Kovit's questions of its legality, as well as the Nassau County Planning Commission's same-day recommendation to reject the application.
In addition to the matter of self-created hardship, the suit claims that the Bay Club is required to offer evidence that no allowable business use of the property would provide a reasonable return on its investment.
"You have to prove in dollars and cents that there will be no return on your investment," Mr. Kovit said. Bay Club did present to the board evidence that two previous potential buyers ultimately lost interest in the Marineland site, finding the property to be unsuitable for use as either an office building or a restaurant. But Mr. Kovit said the evidence fell far short of the financial evidence required by the General City Law to allow a variance for residential construction.
The suit further argues that when granting a use variance, the zoning board may grant only the minimum variance necessary to relieve the applicant's hardship. If the Bay Club was entitled to a variance to build residences at the site, the suit states, it did not show that it was an economic necessity to build the proposed 20 condo units, as opposed to a lesser number or single-family homes.
"The findings do not attempt to explain how or why the Bay Club proposal constitutes the minimum variance necessary to relieve its hardship," Mr. Kovit said.
