The Bayonne Zoning Board of Adjustment has denied an appeal from a property owner to continue to use a two-story building as a ground-floor retail space with two residential units above and one residential unit in another small building behind the property.
While the whole property is referred to by the city as 112 Kennedy Boulevard, the postal address of the main building is 139 West 4th Street and the smaller building is 137 West 4th Street.
The owner was trying to sell the property when the zoning issue was recognized by the city’s zoning officer, prompting the appearance before the board.
Property owner Yakov Burakovsky was represented by attorney John Zucker alongside his son Mitchell Burakovsky, principal manager and supervisor of the site. Burakovsky is a redeveloper in the city, most recently behind the Skye Lofts on Avenue E.
According to Zucker, Yakov become the property owner in 2008.
“Yakov Burakovsky took the title from his son Stanley who got the building in a foreclosure,” Zucker said. “The building was the subject of numerous violations.”
The original building came with the CMO for two commercial units and two residential units. At the time in 2008, it was non-conforming with the residential zoning.
“[Yakov] approached the zoning officer as well as the building department to remedy the violations and then convert the rear structure to a legal residence,” Zucker said.
Burakovsky set to work to correct violations on the main house. Fire escapes were installed and other necessary measures taken to remedy the violations.
“On that vacant hall in the rear, he was advised that he should pay Passaic Valley for the sewer connection and file a permit to make any interior repairs for a residential certificate of occupancy,” Zucker said. “He did so and he was granted.”
Looking to sell
Following that, the property was considered up to code and was regularly rented for over a decade, according to Zucker.
“For the next 12 years, the building had been rented as a structure with three residential units and one commercial unit,” Zucker said.
According to Zucker, the issue with zoning only arose recently when the property was put on the market for sale.
“Recently my client marketed the premises for sale and went to contract,” Zucker said. “As I was told by, the buyer’s attorney, the prospective buyer asked the zoning office for clarification about the permitted uses, and that’s what triggered the review that brings us here today.”
Zucker said they are appealing determinations outlined in a letter from Zoning Officer Tracey Tuohy on Aug. 4 and 13, denying permission to use the property as it currently is, and as a result the sale of the property. In the letter, it was indicated that the recourse for the situation would be for Burakovski to submit an application before the board seeking a variance to continue with the property as is.
According to Zucker, the letter’s conclusion does not consider the context of the matter, which dates back to dealings with the city in 2008 and 2009. He said that the predecessor to the current zoning officer allowed the conversion.
“The process under which the current residential unit in question was changed from a commercial designation to a residential designation was flawed and mistakes were made by several parties,” Zucker said. “Those mistakes in the process were discussed by the current zoning officer in her letters.”
According to Zucker, Burakovsky was not directed to go before the zoning board.
“They asked us to fill out the folder that you would fill out at the building department like any other permit you would pull,” Mitchell Burakovsky said. “We pulled it, and then they inspected it and issued the certificate of occupancy. Since it was a previous commercial space, they asked us to pay Passaic Valley for one residential unit to add to the building, which we paid for at the time.”
After obtaining the certificate of occupancy for the residential unit in the rear, Burakovsky thought the zoning issues with the property were rectified: “We had three legitimate apartments and one commercial store instead of two and two. And it’s been occupied since we’ve owned it. Between different tenants, it’s normal turnover since 2008.”
Board denies appeal
Vice Chairman Clifford Adams, who was chairing the meeting in the wake of the passing of Chairman Mark Urban, said that the situation was “not unsympathetic.” However, Adams said that the board’s duty is not to correct errors of other officers in the city years ago and added that the zoning officer was not present to discuss the determination. Zucker said that he doesn’t disagree with the zoning officer but was arguing that the result was unfair and the board had the equitable power to resolve it.
“The nature of our appeal to this is not that we feel that her reading of the requirements was wrong, but rather the proposed resolution is what we find unfair,” Zucker said. “We feel that the mistakes made in the history of this building were made in partnership with city officials.”
In response, Adams said: “There’s a lot of ambiguity here. I am not unsympathetic to the situation, but the ambiguities are such that I cannot see a reason for me to override the zoning officer.”
Other commissioners echoed Adams regarding the “ambiguity of the situation.” The board then voted unanimously to deny the appeal.
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