New York Law Review

Tag: Radio Tower

  • New York Botanical Garden v. Board of Standards and Appeals, 91 N.Y.2d 418 (1998): Defining ‘Accessory Use’ in Zoning Law

    New York Botanical Garden v. Board of Standards and Appeals, 91 N.Y.2d 418 (1998)

    A zoning board’s determination of what constitutes an accessory use is entitled to deference, and will be upheld if it is rational, reasonable, and consistent with the zoning statute, especially when based on the board’s expertise in land use and planning.

    Summary

    The New York Botanical Garden challenged the Board of Standards and Appeals’ (BSA) decision to classify Fordham University’s proposed radio station and 480-foot tower as an accessory use on its campus. The Botanical Garden argued that the tower was not incidental to the university’s educational purpose. The Court of Appeals upheld the BSA’s determination, emphasizing that the BSA’s interpretation of zoning regulations is entitled to deference and that the operation of a radio station is common for universities. The court also noted the BSA’s expert consideration of relevant factors and FCC regulations, finding the determination reasonable and supported by evidence.

    Facts

    Fordham University sought a permit to construct a new broadcasting facility and 480-foot radio tower on its Rose Hill campus. The University operates WFUV, a noncommercial educational radio station affiliated with National Public Radio. The New York City Department of Buildings (DOB) issued a permit, but the New York Botanical Garden, adjacent to the campus, objected. The DOB Commissioner determined the radio station and tower constituted an accessory use. The Botanical Garden appealed, arguing the tower wasn’t an accessory use. Construction had already begun, costing Fordham $800,000. The BSA affirmed the Commissioner’s determination.

    Procedural History

    The Botanical Garden appealed the DOB Commissioner’s determination to the Board of Standards and Appeals (BSA). The BSA affirmed the Commissioner’s decision. The Botanical Garden then commenced an Article 78 proceeding to annul the BSA’s determination in New York State Supreme Court, which dismissed the petition. The Botanical Garden appealed to the Appellate Division, which affirmed. The Botanical Garden then appealed to the New York Court of Appeals, which granted leave to appeal.

    Issue(s)

    Whether the BSA’s determination that Fordham University’s radio station and 480-foot tower constitute an accessory use within the meaning of New York City Zoning Resolution § 12-10 was arbitrary or capricious.

    Holding

    Yes, because the BSA’s interpretation of the Zoning Resolution was neither irrational, unreasonable, nor inconsistent with the governing statute, and was supported by substantial evidence.

    Court’s Reasoning

    The Court of Appeals emphasized that the BSA, comprised of land use experts, is entitled to deference in interpreting the Zoning Resolution. The court cited Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539, 545, noting that such interpretation should be upheld unless it is irrational, unreasonable, or inconsistent with the governing statute. The court analyzed Zoning Resolution § 12-10, which defines an accessory use as one that is conducted on the same zoning lot as the principal use, is clearly incidental to and customarily found in connection with the principal use, and is under the same ownership. The court distinguished this case from Matter of Teachers Ins. & Annuity Assn. v City of New York, 82 NY2d 35, explaining that the BSA’s determination involved a fact-based inquiry into whether a radio station of this size and power is customarily found on a university campus. Fordham presented evidence that many university radio stations operate at similar power levels and that the station is integral to the university’s communications curriculum. The court also noted that FCC regulations necessitated the new tower. The Court stated, “Whether a proposed accessory use is clearly incidental to and customarily found in connection with the principal use depends on an analysis of the nature and character of the principal use of the land in question in relation to the accessory use, taking into consideration the over-all character of the particular area in question.” The court also distinguished this case from Matter of Presnell v Leslie, 3 NY2d 384, stating that that case concerned “a personal hobby carried on as an incident to a residential premises, but with a legally recognized institutional use that is integral to the educational mission of this University.”