Challenge to use variance moves forward

Neighborhood coalition challenged variance to developer of site adjacent to Brooklyn Cruise Ship Terminal. In late 2003, when 160 Imlay Street LLC received a use variance to convert a six-story industrial building in Red Hook, Brooklyn into a luxury condominium, the Red Hook-Gowanus Chamber of Commerce filed an article 78 petition challenging the variance. The Chamber, however, named only BSA in its petition and as a result the petition has been appealed all the way to the Court of Appeals, where it was sent back to the trial court for a determination of whether the claim could proceed without Imlay. 2 CityLand 172 (Dec. 2005).

Nearly 28 months after Imlay received the variance, Justice Yvonne Lewis ruled that the Chamber’s article 78 challenge could proceed without Imlay. The court found that dismissing the claim for failure to name Imlay as a necessary party would leave BSA’s decision unchallenged and the Chamber without recourse. The court found that the Chamber would suffer the greater prejudice because it had no other remedy, while Imlay would retain its right to use the property commercially even if it could not build the luxury condos. Finally, Justice Lewis dismissed Imlay from the suit, but ruled that it could intervene in the proceedings if it so chose.

In re Red Hook-Gowanus Chamber of Commerce v. BSA, 2006 Slip Op 50648U, Apr. 18, 2006 (Kings Cty.Sup.Ct.) (Lewis, J.).

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