At Yesterday's BSA Hearing On Gowanus Whole Foods Variance

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Meenakshi Srinivasan, Chair Of NYC Board Of Standards And Appeals

More than twenty people showed up to testify yesterday afternoon at the hearing in front of the NYC Board Of Standards And Appeals regarding Whole Foods Market's request for a use variance (§72-21) to permit a food store (UG6), contrary to use regulations in an M2-1 zoning district, at the corner of Third Avenue and Third Street on the Gowanus Canal.
Currently, New York City's Zoning Resolution only allows Whole Foods to build a 10,000s.f. store on the site, which is located in an M2-1 zoning district. The proposed Gowanus food store would be 58,000 s.f., have a 20,000 sf rooftop greenhouse, parking for 248 vehicles, and a public walkway along the Gowanus Canal.
Whole Foods is claiming that full compliance with zoning regulations is not possible in order to realize a reasonable economic return on their property.
At the hearing, lawyers for the food retailer gave a brief presentation on the project, then argued the following reasons for hardships associated with developing the site:
*Unsuitable soil conditions on the property require extensive pile foundations. Special drilled piles are also near needed near the the landmarked Coignet building on the site.
*the property is in a Flood Zone A and has a high water table. Extensive waterproofing and additional measures to resist hydrostatic pressure will be required.
* The property is adjacent to two bridges
*Has varying street elevations and a grade change of 12 feet,
*And is subject to the Brownfields Cleanup Program which entails environmental remediation costs.

During the public testimony session of the hearing, representatives of Community Board 6, the Brooklyn Chamber Of Commerce and the Gowanus Canal Coomunity Development Corporation all read statements in support of the project. (Borough President Marty Markowitz has also endorsed it.)
A representative from the Al-Madinah School, which is located on 3rd Avenue, across the site, spoke in favor.
Hans Hesselein of the Gowanus Canal Conservancy testified that the Conservancy welcomes many aspects of the plan, but requests that any approval by the BSA "be conditioned upon Whole Foods Market's commitment to provide the community with adequate natural and open space resources."
In particular, the Conservancy suggests that WF increase the public esplanade along the Gowanus Canal on the West side of the site from the proposed 20' width to a minimum of 40' on all sides bordering the canal "consistent with the goals of the NYC Department of City Planning DRAFT Zoning Proposal for the Gowanus Canal as well as the Sponge Park master plan."
However, many organizations and individuals spoke against the project.
The Gowanus Canal Community Advisory Group submitted a letter asking the BSA to postpone its decision on the Whole Food Market's variance application until the US Environmental Protection Agency releases its Record of Decision for the Gowanus Canal Clean-up plan. (See letter below.)
Marlene Donnelly, representing Friends And Residents of Greater Gowanus (FROGG), pointed out that the BSA has, in recent history, rejected non-conforming uses along the Gowanus Canal, most notably in the case of 130 Third Street, in which the Board found that the applicant "failed to provide substantial evidence that the subject lot possessed unique physical conditions that create practical difficulties and unnecessary hardships in developing the site in strict conformity with current zoning."
The Gowanus Institute, an independent think tank, urged the BSA to reject the variance, arguing that "the WFM application is flawed, and the proposed development will have a lasting negative impact on the manufacturing community of Gowanus and the surrounding neighborhoods." (see their testimony below)
Nathan Elbogen director of XØ Projects and The Old American Can Factory (OACF) pointed out that the large site could be developed 'as-of-right' with up to 370,000 SF for small to medium-scale manufacturing and referred to the success of the Old American Can Factory, a multi-story light-industrial complex fully occupied by industrial and commercial tenants.

Quite an impressive number of Gowanus artists, musicians, film makers, lighting designers, jewelers and non-profits, many OACF tenants, testified against the WFM project as well. They argued that there are few industrial manufacturing zones left in the city and those that remain need to be protected. They pointed out that the Gowanus area is not the waste-land Whole Foods depicts it as. Rather it is a vibrant manufacturing and cultural zone that permits growth that can not be sustained anywhere else. As an industrial zone, they pointed out, the Gowanus area is vital for the economic recovery of the city.

The next hearing on this matter has been scheduled for January 24th, 2012

Letter Submitted By Gowanus Canal Community Advisory Group

December 9, 2011
Hon. Meenakshi Srinivasan, Chair
New York City Board of Standards and Appeals
40 Rector Street, 9th Floor
New York, NY 10006

Dear Chair Srinivasan
The Gowanus Canal Community Advisory Group (CAG), at its December 5, 2011 general meeting, passed the following resolution directed to the NYC Board of Standards and Appeals:

The Gowanus Canal Community Advisory Group requests that the NYC Board of Standards and Appeals postpone its decision on Whole Foods Market’s Variance Application until the US Environmental Protection Agency releases its Record of Decision for the Gowanus Canal cleanup plan.

In addition, for your information, the CAG passed the following resolution directed to Whole Foods Markets:

The Gowanus Canal Superfund Community Advisory Group requests that Whole Foods Market present to the CAG their general sitework and bulkhead plan for review and discussion.

The following describes the background discussion that took place at the Gowanus Canal CAG meeting on December 5, 2011 prior to the vote on the two resolutions above:
Whole Foods Market (WFM) is scheduled for a New York City Board of Standards and Appeals (BSA) public hearing on 12/13/11 to review its use variance application to construct a 78,000 GSF food market at the southwest corner of Third Street and Third Avenue, which is not permitted in M2-1 zone.  WFM's proposed development is the largest new building development on the canal in generations, and is set on the single largest zoning lot along the Gowanus Canal, with 892 linear feet of canal frontage, the most frontage of any property along the canal.
Members of the Gowanus Canal CAG want assurance that the WFM development is done in a manner that is compatible with the USEPA Superfund cleanup process, which is still in the planning phase.  The CAG’s understanding is that USEPA will be releasing its Feasibility Study by the end of 2011, announcing its selection of the clean-up remedy by June of 2012, and after a public comment period will be finalizing the selection of the clean-up remedy by the end of 2012 in a Record of Decision.  Members of the Gowanus Canal CAG are concerned that the WFM development may adversely impact the EPA Superfund cleanup process, given the issues outlined below:
ISSUES & CONCERNS WITH WFM PROPOSED DEVELOPMENT
1.  WFM's application does not thoroughly discuss its relationship to the EPA Superfund designation and cleanup plan, and makes a single reference to it saying "...our project proposes splash pads within the canal to handle stormwater runoff in compliance with and pursuant to NYSDEC's approval which will require notification of the EPA when installation is to happen. In addition, the EPA has two monitoring wells that may need to be preserved."  
2.  The CAG has requested technical assistance from the EPA regarding maintenance, repair and/or replacement of canal bulkheads which are historical, in poor condition and may further deteriorate with dredging;
3.  WFM's development site includes three parcels with contaminated soil that are have not yet been remediated as well as four parcels with severely contaminated soil and underground storage tanks that have been remediated but that have not yet received final approval from NYSDEC;
4.  WFM's development plan includes major sitework including:  changes to grade and storm drainage as well as driving piles and other foundation work that could disturb contaminants below the level of remediated portions of the site and below the base of the bulkheads
5.  WFM's development site was suggested as an ideal staging and production area for EPA Superfund cleanup-related activities;
6.  EPA's cleanup process will include soil dredging that will omit noxious odors, be unsightly, and noisy, and incompatible with a food store;
7.  A proposal to process the dredged sludge from the Gowanus Canal includes a suggestion by the US Army Corp of Engineers to vitrify and bury the sludge under the Fourth Avenue Basin which abuts the WFM site;
8.  A proposal was made as part of the stormwater and CSO control plan for the area, to submerge a stormwater holding tank under the Fourth Basin which abuts the WFM site.
9.  Failure to ensure compatibility between the WFM development and the USEPA cleanup process could prolong the impact of the clean-up on existing businesses and neighbors.
Sincerely,
Jeff Edelstein, P.E.

Facilitator

On Behalf of the Gowanus Canal Community Advisory Committee

Testimony Give By The Gowanus Institute

Whole Foods Market (WFM) is proposing a development of 78,000 SF facility, including a 248 vehicle surface parking lot and a 58,000 SF retail food market in an M2 zoning district, nearly six times the allowable area of a maximum of 10,000 SF

WFM is requesting to modify a land use requirement that currently protects a scarce and diminishing resource:  a property zoned for medium manufacturing, on an active industrial canal. If built, the proposed development would substantially alter the essential manufacturing character of the Gowanus neighborhood, and contradict  NYC's long-range goals to diversify its economy and increase higher paying jobs.

Over the past 10 years, the Gowanus neighborhood has become a haven for light and medium manufacturing as other manufacturing districts throughout NYC have been rezoned. The site is at the heart of a thriving industrial community that includes maritime uses, and is within the Southwest Brooklyn Industrial Business Zone, which the Mayor's policy has committed to preserving for manufacturing or related uses.

The large manufacturing site could be developed genuinely "as-of-right" with up to 370,000 SF for small to medium-scale manufacturing and could yield up to three times as many jobs with considerably higher pay than the proposed retail use. In fact, directly across the subject site on Third Avenue, is a multi-story light-industrial complex of 130,000 GSF that is fully occupied with approximately 80 industrial and commercial tenants employing more than 300 people.

In recent years, numerous studies, including NYC Dept of City Planning's Gowanus Canal Corridor Study (2008) and the Gowanus Canal Community Development Corporation's Comprehensive Community Plan (2006), have encouraged growing the manufacturing activity in the Gowanus area, particularly on the south side of the canal, which includes the WFM site. In October 2011, NYS Dept of Environmental Conservation awarded a $200,000+ Brownfield Opportunity Area (BOA) grant to Friends of Community Board 6, specifically to study the growing industrial activity along the Gowanus Canal and to help them map a sustainable, economically viable industrial future for the area dedicated to 'green' manufacturing. The WFM site is at the nexus of this BOA study area.

Further, in light of NYC Dept of City Planning's Vision 2020 Working Waterfront Policy,  this site, with its extensive canal frontage, would be ideal for uses that utilize barging as its primary mode of transport, reducing substantially the truck traffic throughout the city, as several businesses are currently doing directly adjacent to the site.

To receive a variance, the applicant must prove five findings showing why they are in need of relief from the existing zoning regulations.  First, WFM claims that the site is “burdened by unique conditions”when the site is typical of most sites along the Canal, and had active industrial uses on each of the parcels prior to WFM assembling its site. WFM's second claim of “economic hardship” is based an untenable "as-of-right" scheme that submerged all of the retail area well below grade where it is considered a ‘cellar’ and not counted as floor area. As for “not altering the essential character of the neighborhood,” an upscale food store would certainly be incompatible with the surrounding uses that include two large concrete producers, a large metal and car recycling facility and a paper/cardboard recycler, all of which are fundamentally different in use, noise, odor, and access requirements.  Fourth, given that the site has accommodated a variety of conforming uses in the past, it is only reasonable that this is in fact a “self-created hardship.”  The fifth point, the “minimum variance required”, is therefore irrelevant.

Increase in traffic is another major concern. WFM presents a traffic study which projects only into the year 2012, barely the year it would open, without taking into account any new major developments currently planned in the area, such as the Barclays Stadium, Atlantic Yards  or the numerous high-rise residential buildings planned on Fourth Ave. As the store is clearly intended to serve the broader region of the borough of Brooklyn, not a local one, its (modest) projections of thousands of car trips per day to the site (just one way!) would certainly add a huge amount of traffic on Third Avenue (a narrow, two-lane truck route) and on Third Street (one of only two two-way bridges crossing the Gowanus Canal). Further, the WFM site is located on the evacuation route for Carroll Gardens and Red Hook, hardly a prudent place for additional daily traffic.

Environmental concerns with the WFM site include: its location on former wetlands; it is within FEMA's Flood Zone A; and, it abuts the Gowanus Canal, recently designated an EPA Superfund Site.  There is real concern among the EPA's Community Advisory Group (CAG) that the development  might disrupt the cleanup effort given potentially incompatible work plans. On 12/5/11, the CAG formally requested that BSA postpone its decision on the WFM variance application until the EPA releases its cleanup plan.

The residential neighborhoods nearby are well served by multiple, large organic and natural food stores. If WFM aims to serve the Park Slope neighborhood, it could locate just one block east on Fourth Avenue as part of an urban, mixed-use development, similar to WFM's Manhattan stores. Or, if a 'regional' Brooklyn store is WFM's objective, then an appropriate location could be near an exit ramp, as other large retailers have done. The subject site is a mile or more from any highway.

In conclusion, WFM's project would be the first development on the Gowanus Canal in generations, set on the single largest private zoning lot. If this variance were granted and the WFM plan developed, it would set back decades of hard work to get the canal area growing as a fresh and thriving manufacturing community focusing on maritime uses, green manufacturing and the creative industries.