Elmhurst Target Gets Green Light From City Zoning Board

NEW YORK — A controversial Target under construction in Elmhurst does not violate zoning code, the city's Board of Standards and Appeals ruled Tuesday.

The five-member land use board voted 4-1 to turn down an appeal by grassroots group Queens Neighborhoods United arguing that the 82nd Street Target, part of a two-story commercial complex, goes against neighborhood zoning rules.

The vote isn't technically final until the commissioners file their written decision, which could take weeks, Board of Standards of Appeals executive director Carlo Costanza told Patch. The Target is expected to open sometime in 2020.

"We continue to be excited about the opportunity to better serve the Jackson Heights community later next year," a Target spokesperson said in a written statement following the vote.

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At the heart of the matter were two questions: Does the proposed Target's cellar space count toward its floor area, and should the Target be considered a department store or a variety store in the eyes of the zoning code?

Activists said Target's plan exploited a zoning loophole by splitting 23,000 square feet between the ground floor and a basement. Local zoning rules cap the size of variety stores at 10,000 square feet, but cellar space does not necessarily count.

The four commissioners who voted for the Target attributed their decision to zoning code's definition of "floor area," which they called unambiguous.

Floor area, or square footage, excludes space underground except for the purpose of calculating the number of parking spaces and loading berths for the business, they said, citing zoning text.

"Cellar space is never to be counted as floor area except when used for retailing it counts for parking and loading," BSA Chairperson Margery Perlmutter said.

Commissioners Dara Ottley-Brown and Salvatore Scribetta said it was not the board's responsibility to analyze the intent behind this piece of the zoning code because the rules on counting cellar space are clear.

Commissioner Nasr O. Sheta was the only one to vote in favor of Queens Neighborhoods United, arguing that the Target qualifies as a department store, which isn't allowed at any size under local zoning.

"BSA gentrification machine," Queens Neighborhood United members started chanting after the commissioners announced their votes.

City Council Member Francisco Moya, who represents Elmhurst and chairs the City Council Subcommittee on Zoning and Franchises, said he will look into updating city zoning rules that don't count cellar space toward a business's floor area.

"It’s a mistake allowing organizations to use cellar space as a loophole to skirt zoning rules," Moya said through a spokesman. "Any interpretation of the zoning text that permits this loophole is ignoring the spirit of the regulation."

After the vote Tuesday, ten Queens Neighborhood United members huddled by a parking lot outside the city planning building to debrief. They weren't surprised about the vote, they said, but they shared concerns about the ramifications of the board's decision.

Carina Kaufman-Gutierrez said she fears the vote gives developers free rein to build deep underground. "This isn't just Elmhurst. This isn't just Jackson Heights," she said. "It's citywide."

"They're deciding the whole fate of the community based off those words," Jorge Cabanillas said, referring to the commissioners' statements on the zoning code definitions.

Paula Segal, the lawyer representing Queens Neighborhood United, said they don't plan to challenge the board's decision but will file an appeal with New York State Supreme Court.

Segal cautioned the group that winning an appeal would be difficult: Appealing an agency decision, referred to as an Article 78 proceeding, requires arguing that the decision was arbitrary or capricious or that it went against the law.

"Let's replenish a little and think about how we're going to continue," Tania Mattos said.