Building owner allowed artist studios on floor designated for factory use. The owner of 56 Bogart Street in Brooklyn rented several fourth-floor units to artists. The artists produced items such as canvas, paper and wood objects, jewelry, lighting, and skateboards. A Buildings officer issued the owner a notice of violation for allowing occupancies contrary to what was permitted by the certificate of occupancy. At a hearing, Buildings submitted a 1931 and a 1973 C of O that stated that the first through fourth floors could only be used as a “factory.” The officer testified that he observed art and sculpture studios on the fourth floor, which according to the NOV, did not qualify as factory uses. The owner countered that the tenants were producing goods for sale or viewing elsewhere, and thus their activities were not inconsistent with a factory use or occupancy. An ALJ sustained the NOV, and the owner appealed to the Environmental Control Board.

The Board reversed the ALJ’s decision, ruling that Buildings had failed to show the artists’ activities were inconsistent with the C of O. As the building code and the zoning resolution lacked a definition of “factory,” the Board looked to the word’s common meaning – “a building or buildings with facilities for manufacturing.” The Board found that artist studios, like the ones described in the NOV, could fit within the common meaning of factory, and further found that Buildings did not prove the artists’ use of the space differed from factory use.

NYC v. 56 Bogart Street LLC, ECB Appeal No. 1000384 (July 22, 2010).