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Up Or Down? Fight Over Rezoning Rules Let Us Build Big, Some Fraser Homeowners Say

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Even as many communities in Brooklyn look toward down-zoning to protect their quality-of-life, some residents of the Fraser Square neighborhood are asking for more leeway to build larger houses, to accommodate growing families. At the May meeting of the Fraser Civic Association, which was held at Yeshiva Tiferes Yisroel, 1271 East 35th Street, the issue was mooted about as some of those in attendance made it clear that they would like the special permit process available in nearby Midwood to be extended to homes in their community. “The population in the area has changed since the zoning was set up,” contended resident Harold Willig. “We have a lot of young families that need more space. Is it possible to get the special permit expanded to our area as well?” Others in the crowd agreed. One man noted that his mother-in-law lived with him. Looking ahead, he said that eventually he would like to expand his first floor to provide her with a bedroom on that level, which would mean expanding beyond what current zoning would permit. But, at least one woman showed disapproval, remarking, “Move to a neighborhood where you can do this. Leave us alone.” Under the special permit process requested by Willig, which was created to make it easier for people to enlarge their homes, homeowners can apply to the city’s Board of Standards and Appeals (BSA) to expand one and two-family detached and semi-attached homes up to 10 feet into their backyard, as long as the backyard is at least 30 feet deep. In addition, the special permit allows homeowners to expand into their side yards, to the extent of existing projections on the structure. Thirdly, it allows them to build upward, as long as the expansion does not exceed the height of neighboring homes. The expansions are not allowed to reduce the distance between neighboring homes. The special permit was offered to all 59 community boards in New York City in 1996. Only five, all in Brooklyn, approved it. These are CB 10 (which is now talking about trying to get it rescinded), CB 11, CB 12 (which has since moved ahead to allow expansions as of right within the community of Boro Park), CB 14 (which approved the special permit for only a portion of the board area, generally south of the Long Island Railroad cut) and CB 15. CB 18, which includes the Fraser Square area, rejected the special permit at the time it was offered. Without the special permit, enlargements beyond what is permitted by the zoning require a variance approval from BSA, which is extremely difficult, and often costly, for homeowners to obtain. Regulations that have been in effect for over 40 years permit expansions up to 10 percent, as long as the resulting building conforms to a specific ratio of floor space to open space. Homeowners are also allowed to expand if they can show hardship; however, the vagueness of the language renders this extremely difficult to prove. The result has been that, prior to the creation of the special permit, and in areas where it is not an option, relatively few homeowners have attempted to get variances, either shelving the proposed enlargement, or having it done illegally. In the areas where it was accepted, the special permit process has had a sweeping effect. On the one hand, property values in the areas have risen; on the other, homes have been purchased, only to be demolished and replaced with new, considerably larger structures. In addition, other homes have undergone such extensive - and expansive - refurbishing that they are, to all intents and purposes, new, considerably more massive residences. The vast majority of applications for special permits have come from CB 14 and CB 15. How can the community begin the process of requesting the special permit? Noted Ken Lazar, a representative of the city’s Department of Buildings (DOB), “Your community group, elected officials and the community board are the best way to start. It’s the same as down-zoning, I that it starts at the community level.” Robert Nadel, the president of Fraser Civic, said that the organization would, “Bend to the will of the community. Rezoning is something we would consider if the neighborhood wants it.” City Councilmember Lewis Fidler said that he, too, would support the community in what it want. “We talk about zoning in our communities,” he told the crowd, “and understand that that means different things to different people. I’ve been talking a great deal about down-zoning. There are parts of our community where beautiful old homes are being torn down and inappropriate three-story condos are going up. When I say down-zoning, I want to stop that kind of stuff. That does not mean that people who require additional space in which to continue to live in their community, cannot apply for a variance that might be appropriate, depending on the circumstances. “The reason that I believe zoning should be as restrictive as possible,” Fidler went on, “is that when the zoning is less restrictive, then they can put things in our community that we don’t want. But you can always still apply for a variance to allow something the community can allow that they do want. It gives the community a great deal of power, assuming the other arms of government abide by it.” Pressed, however, by Willig with respect to the special permit, Fidler said, “I will say that, as a general rule, if one of my local civic associations takes a position in favor of something, I don’t have a vested interest in opposing that. If that’s what this community wants, to the extent that it’s within my council district, I’ll support it.” “We are talking about situations where people want to increase the size of their house so they can accommodate their families,” Nadel remarked. “I believe that was the differentiation I was trying to make when I was talking about down-zoning versus variances. But, I am well mindful of different communities having different needs,” Fidler rejoined. “To the extent that any area in my council district feels they want an up-zoning, just as I have gone to City Planning on behalf of those communities that have been very strongly in favor of down-zoning, I will go to City Planning and ask for whatever this community wants.”

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