Lofts above nightclub legalized if soundproofed

Nightclub fought permanent housing in its building. Three co-op owners, living for years in their units on the top three stories of a loft building at 253 West 28th Street in Manhattan, applied to BSA to legalize the residential use, claiming that the loft’s antiquated electrical system, narrow floor plates and small elevator made it unsuitable for manufacturing or commercial. In 1979, the building had been divided into five units and converted to a co-op. An attorney and three photographers bought the top four units and a nightclub purchased the first floor and cellar. For over two decades, the top three units were used illegally as housing.

At the BSA hearing, a new nightclub, which was about to open in the loft’s first and cellar floors, fought the conversion to permanent housing. Once legalized, the nightclub owners argued, the residential occupants would have a legal right to file noise complaints with the City, ultimately threatening the nightclub’s viability. The nightclub also challenged the financials submitted by the applicants, arguing that the entire building should be analyzed instead of the unit-by-unit analysis completed by the applicants. The nightclub owners further claimed that, since there would be an enormous gain if the applicants just sold their units, sale profit should be the correct measure of whether or not a hardship existed.

BSA rejected the nightclub’s argument that profit on the sale of each unit should be considered, explaining that, if such a standard was used, hardship could easily be shown in other situations where an inflated or overvalued property was purchased. BSA stated that because the zoning resolution specifically requires analysis of the zoning lot, it required submission of financials for the entire building as an equivalent of the lot analysis.

BSA approved the variance conditioned on the completion of noise tests after the nightclub opens and the applicants’ installation, maintenance and, when needed, upgrading of soundproofing found sufficient to eliminate potential noise complaints.

BSA: 253/55 West 28th Street (221-03- BZ) (February 15, 2005). CITYADMIN

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