9th & 10th Street, LLC v. Board of Standards & Appeals, 10 N.Y.3d 263 (2008)
A municipal authority may deny a building permit if it reasonably doubts that a proposed structure can be used for a lawful purpose, and the applicant fails to provide sufficient assurances that the proposed use is practicable.
Summary
9th & 10th Street, LLC sought a building permit to construct a dormitory in New York City. The Department of Buildings denied the permit because the LLC failed to demonstrate that the building would actually be used as a dormitory, as opposed to an apartment building which would violate zoning restrictions. The New York Court of Appeals reversed the Appellate Division’s decision, holding that the Department’s action was not arbitrary. The Court reasoned that where there is legitimate doubt about the feasibility of a proposed lawful use, the municipality is not obligated to issue a permit and risk the consequences of illegal use or vacancy. This case clarifies the scope of permissible inquiry by municipal authorities when reviewing building permit applications.
Facts
9th & 10th Street, LLC acquired a lot in Manhattan restricted to “Community Facility Use,” which included college or school dormitories. The LLC applied for a permit to build a 19-story dormitory that resembled an apartment building. The Department of Buildings interpreted the Zoning Resolution to require an “institutional nexus,” meaning the dormitory had to be operated by or on behalf of a college or school. The LLC proposed leasing the property to University House Corp. (UHC), an entity it created, representing that UHC’s board would be appointed by participating educational institutions. However, the LLC failed to identify any educational institution committed to using the building as a dormitory.
Procedural History
The Department of Buildings denied the permit application. The Board of Standards and Appeals (BSA) denied the LLC’s appeal. The LLC then initiated a CPLR article 78 proceeding to annul the BSA’s determination. The Supreme Court denied relief, but the Appellate Division reversed, finding that the permit could not be denied based on a possible future illegal use. The BSA appealed to the New York Court of Appeals.
Issue(s)
Whether the Department of Buildings acted arbitrarily and capriciously in denying a building permit for a proposed dormitory, based on doubts about the likelihood of the building actually being used as a dormitory and the applicant’s failure to provide sufficient assurances of such use.
Holding
Yes, because where municipal officials reasonably fear that the legal use proposed for a building will prove impracticable, it is not improper to insist on a showing that the applicant can actually do what it says it will do. The Department’s request for proof of an “institutional nexus” was a reasonable measure to ensure the building would be used as a dormitory as represented.
Court’s Reasoning
The Court distinguished this case from Di Milia v. Bennett and Baskin v. Zoning Bd. of Appeals, which held that the mere possibility of a future illegal use is not a sufficient reason to withhold a building permit. The Court clarified that those cases involved situations where the proposed initial use was clearly legal and practicable. Here, the Department of Buildings reasonably doubted that the proposed building would ever be used as a dormitory, given the lack of commitment from any educational institution. The Court reasoned that, “It would create needless problems if petitioner built a 19 story building, only to find that it could not use it in a legally-permitted way.” The Court concluded that seeking assurances of a valid dormitory use was prudent and not arbitrary, as it prevented the potential for the building to either violate zoning laws or remain vacant.