BSA, which had granted variance to developer in 2003, grants time extension due to five-year court battle. In 2003, the Board of Standards & Appeals granted a use variance to 160 Imlay Street Real Estate LLC to allow for the residential conversion of a six-story warehouse at 160 Imlay Street in Red Hook, Brooklyn. 160 Imlay Street LLC had claimed that it could not earn a reasonable rate of return with a complying use under the site’s M2-1 manufacturing zoning designation. The Red Hook-Gowanus Chamber of Commerce filed an article 78 petition challenging the variance. The Chamber, however, failed to name 160 Imlay Street LLC in the petition, and the City asked the State Supreme Court to dismiss the proceeding. The issue was appealed up to the Court of Appeals, which sent the case back to the Supreme Court. (read CityLand’s coverage here).
Supreme Court Justice Yvonne Lewis ruled that the lawsuit could continue without 160 Imlay Street LLC as a named party, and then vacated the variance. Justice Lewis returned the matter to BSA to determine whether 160 Imlay Street LLC could earn a reasonable rate of return with a complying use. According to Justice Lewis, 160 Imlay Street LLC’s single economic analysis had been inadequate. The Second Department in March 2008 reversed Justice Lewis’s decision, ruling that 160 Imlay Street LLC’s interests would not be adequately protected unless it was a named party in the article 78 petition. The Second Department also ruled that 160 Imlay Street LLC did not have the burden of submitting economic analyses for every complying as-of-right use on the site.
BSA variances lapse if substantial construction of the project is not made within four years from the date of issuance, or from the date of final judicial proceedings. 160 Imlay Street LLC applied to BSA in February 2012 for an extension to complete construction under the previously issued variance. On May 1, 2012, BSA agreed to grant 160 Imlay Street LLC an additional four years to complete warehouse conversion according to the previously approved plans.