401 Wythe Avenue, Brooklyn. Image Credit: Google Maps.
Loft occupant moved out prior to applying for protected status. Frank Hughes was a resident at 401 Wythe Avenue, Brooklyn, New York, a commercial building with several residential units. In 2012, Hughes and other residents of the building applied to the New York City Loft Board for Loft Law occupant protection status, which referred the applications for an OATH hearing. The 401 Wythe Avenue residents sought Loft Law status because lofts in split commercial/residential buildings (known as interim multiple dwellings) may ignore certain regulations imposed on commercial buildings.
The OATH Hearing Board recommended Loft Law status for Hughes and the other residents after reviewing the applications. Despite the recommendation, the Loft Board ruled that Hughes was not the primary resident of his unit at the time of the hearing and therefore not eligible for protection status.
Hughes argued that he lived at the unit from 2007-2012 and then again from 2015 onward. Yet from 2012, when Hughes filed the Loft Board application, to 2015, Hughes admittedly lived with his girlfriend at her condominium. Hughes did not mention moving out of the unit in his OATH testimony prior to the Loft Law application hearing. The Loft Board denied Hughes’s application and Hughes appealed by filing an article 78 petition with the Supreme Court.
Supreme Court Justice Melissa A. Crane denied Hughes’ petition and affirmed the Loft Board’s denial of protected status. Judge Crane ruled that Hughes’ admission of moving out before applying for Loft Law status proved 401 Wyeth Avenue was no longer his primary residence. Judge Crane stated that the primary residency has been a requirement for Loft Law status since 1992 and the Loft Board’s denial was proper.
The Appellate Division, First Department affirmed, ruling that there was no need to remand for further hearings on Hughes’ residence.
By: Peter Carlino (Peter is a New York Law School student, Class of 2023.)
Hughes v. New York City Loft Board, 160 N.Y.S.3d, 607 (Mem) (1st Dep’t 2022).
The most important detail left out of this article is not about Hughes, but about the societal implications of a catch all policy (the Loft Law and the loft board’s rules and implementation of what was begun as a public safety initiative) that, without consideration as to the actual public benefit- (not only did the city tax payers cover the cost of OATH trials as well as Loft Board consideration and potential loss of property tax revenue)
likely bars this large development site (7500sq ft L shaped lot) from ever providing housing to possibly 30 or more households, in favor of probably 3 (so called pioneer tenants) who illegally converted the garages and started sleeping there.