No Hardship, No Expansion For Nica’s

If the owners of Nica’s Market want to install three new freezers, they will have to figure out how to squeeze them into the store’s already existing space.

In a four to one vote, the Board of Zoning Appeals at its monthly meeting this week denied the market’s application for a special exception to expand by 240 square feet to install three 11-by-22 storage freezers outside in the rear of the store, and to use the existing space inside, formerly taken up by inside freezers, for a bigger kitchen.

It was another setback for Nica’s, which has sought zoning permission to expand several times since 2009.

The decision to vote against the expansion hinged, at least in the mind of the BZA members and opponents of the expansion, on whether the desire to expand was in fact a ​“hardship.”

The market’s owners argued that the increased space would allow a more efficiently run business, which in their opinion would be better for the neighborhood.

An attorney representing nearby neighbors argued that in fact the request did not rise to the level of hardship. (Read more details about Nica’s application, the attorney’s presentation and the other times the market has tried to expand and been shot down here.)

While the City Plan Commission and department staff didn’t comment specifically on whether or not Nica’s had in fact proved that it had a hardship, they did recommend approval of the expansion acknowledging that ​“the significant extent of relief requested does not accurately reflect the relatively minor impact of the actual proposal, particularly given the location and proposed use of the actual building additions,” according to a report written by Deputy Zoning Director Tom Talbot.

“In respect to the variance request for expanded business area it is significant that it is devoted to kitchen space and not to any increased area of direct customer service or product display,” Talbot wrote further. ​“It is not unreasonable to view such a request as one that seeks to maintain the viability of the existing business and not necessarily to increase the level of customer activity. Seen as such it is not unreasonable to conclude that the proposal confers no real advantage to the applicant as opposed to other operators of similar businesses in the area, always a concern with this type of application.”

In addition, Talbot wrote that the freezers wouldn’t have been visible from the street, and that they also might have improved traffic from delivery trucks by possibly reducing their frequency.

“The proposal represents a positive, no-impact enhancement of an existing neighborhood establishment meant to ensure its continued [viability] and to maintain its role as a significant element of the East Rock neighborhood experience,” Talbot concluded.

That wasn’t enough to sway the BZA members Tuesday night, and it was not enough for Talbot to declare that Nica’s in fact had proven a hardship.

“The applicant was completely unable to discuss a hardship and for that reason I would move to deny,” board Chairman Ben Trachten said. ​“We all love Nica’s Market, but its a rectangular lot, and there’s nothing particular about it. And just because it’s convenient and would help the applicant with their business is not a valid ground in the law to grant the special exception.”

Talbot didn’t argue with the logic. ​“I think you’re correct,” he said.

Trachten said in a follow up interview that the presentation from the attorney of the opposing neighbors, who shared history of prior litigation over previous expansion attempts, was ​“very persuasive” when compared with the arguments from the applicant, or even City Plan staff.

The only member to vote in favor of approving the application was alternate member Alphonse Paolillo Sr.