Testimony By New York State Senator Thomas K. Duane Before The New York City Board Of Standards And Appeals Regarding The Variance Application For 8 St. Marks Place (Application No. BSA 142-70-BZ)

May 15, 2007

My name is Thomas K. Duane and I represent New York State's 29th Senate District, which includes 8 St. Marks Place, where owners Jon Shalom and family are, for the third time in the past four years, attempting to amend the variance for the property's cellar from office to retail use for the purpose of establishing a restaurant. I am strongly opposed to the granting of this variance because the application still does not meet requirements set by Section 72-21 of the Zoning Resolution, and the Shalom's have a history of negligent ownership that does not in any way inspire confidence in their ability to responsibly operate a restaurant on a street such as St. Marks Place where commercial uses are already encroaching on residents and threatening the surprisingly well managed existing business and the quality of life for all on this block. I urge you to reject their application as you have done previously.

8 St. Marks Place is located on a lively block, with an abundance of restaurants, retail stores and bars grandfathered by the 1961 zoning, that attract visitors from across the City and around the world on a daily basis. However, St. Marks Place is currently zoned as a residential street and the property in question is sited in a R7-2 residential zone. In fact, Community Board 3 strongly urged the New York City Department of City Planning (DCP) not to include a proposed commercial zoning overlay on this block in the East Village/Lower East Side rezoning plan now in development. I have heard from many constituents and existing reputable business owners residing on the block that pedestrian and street traffic drawn by the concentration of commercial establishments cause congestion and loud noise levels every day and night of the week. I cannot emphasize enough that adding yet another restaurant to this block would further degrade the quality of life for residents, since it would very likely bring increased noise, litter, cigarette smoking and loitering to the already overwhelmed area. Indeed, DCP recognized these concerns and removed the commercial overlay on St. Marks Place from the latest draft of the rezoning.

In addition, according to Section 72-21 of the Zoning Resolution, variances are special exceptions to zoning granted based on findings including, "that there are unique physical conditions .... inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise;" and "that the practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner." It seems to me that the Shalom family has created their own hardship at this location. Since they took ownership of 8 St. Marks Place in January 2002, they have had the opportunity to rent the cellar out for office use to generate income. However, for the last five years, they have not done so, allowing the space to sit unused. The property's zoning was well-established when the Shalom's bought it. It was clearly never their intention to abide by it.

I must admit that I am particularly concerned about this variance application because I have good reason to believe that the Shalom family will not take into consideration the concerns of their neighbors if the variance is granted. In my many years as an elected official, I have been called on innumerable occasions to advocate on behalf of constituents living in Shalom-owned buildings throughout my district. In all too many past and current cases, I have been shocked by the incredible amount of negligence that the Shaloms have shown in maintaining the most basic habitability for their tenants. I have also received numerous reports of harassment by the Shaloms against tenants who have requested lawful maintenance. With that said, I greatly fear that, if allowed a restaurant, the Shaloms will be unresponsive to community concerns and will exacerbate conditions for residents and businesses of the surrounding area.

In light of these matters, I reiterate my request that BSA once again deny the Shaloms this variance. Thank you for allowing me to testify today and for your consideration.

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