BSA’s decision on P.S. 64 upheld

Developer’s plan to build dorm requires connection to a local school. In 1999, the City auctioned off the lot at 605 East 9th Street, containing the former P.S. 64 building, to Gregg Singer by a deed restricting it to a community facilities use under the zoning code. Singer applied for permits to construct a 19-story “college or student school dormitory” with floor plans showing units with bathrooms and kitchens. Buildings objected, asking Singer to prove that the building would be a dorm since dorms could be constructed with a greater floor area than a residential building.

Buildings asked Singer to show institutional control of the property by a lease or deed with a local school. In response, Singer explained that he would form a non-profit and have participating school representatives sit on its board. Buildings rejected the plan and denied the permit; Singer appealed to BSA, which upheld Buildings’ decision. 2 CityLand 152 (Nov. 15, 2005).

Singer then filed an article 78 petition, arguing that Buildings must issue permits for projects that comply with the code and lacked authority to add an institutional connection condition since the code did not require it. Singer also cited to the restriction in the City’s deed as a sufficient limit on the property’s use.

Justice Michael D. Stallman denied Singer’s challenge, explaining that there would be no way to differentiate a dorm from a residential use without the institutional connection requirement, and Buildings could adopt criteria that reflected how it interpreted a code section. The court added that a deed restriction could not replace the permit process.

9th & 10th Street LLC v. BSA, N.Y.L.J. Aug. 9, 2006 at 23 (N.Y.Cty.Sup.Ct.) (Michael A. Cardozo, Virginia Waters, for BSA; Jeffrey E. Glen, Steven Cooper, Gail M. Eckstein, for Singer).

CITYLAND Comment: Since this case commenced, Landmarks designated P.S. 64 as an individual landmark, 3 CityLand 93 (July 15, 2006), and Buildings adopted Proposed Rule 51-01, which requires proof of a connection between a school and a proposed dorm use and a restrictive declaration to be recorded on the property. See 1 RCNY 51-01. Singer plans to file an article 78 petition challenging the landmark designation.

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