Local school affiliation not a requisite for building permit. In 1998, Gregg Singer purchased the lot at 609 East 9th Street from the City subject to a deed restriction that the site could only be used for a community facility. Singer then applied to the Department of Buildings to construct a new 19-story dormitory and demolish the P.S. 64 building that occupied the site. Since Singer’s plan showed full kitchens in each unit, Buildings asked Singer to provide a lease or deed with an educational institution to prove the use was in fact a “college or school dormitory” under the zoning text and not a residential building, which would be restricted to a smaller floor area and would violate Singer’s deed restriction. Instead, Singer offered to form a nonprofit, whose purpose would be to house college and university students. When Buildings denied Singer’s application, he appealed to BSA.
BSA upheld Buildings’ decision, emphasizing that, in light of the floor area bonus permitted for dorm buildings, it was necessary to ask for a proven school affiliation prior to issuing a building permit. 2 CityLand 152 (Nov. 15, 2005). A lower court agreed. 3 CityLand 127 (Sept. 15, 2006).
On appeal the First Department reversed, ruling that Buildings’ request was arbitrary and capricious since a denial based on the lack of a current school affiliation would prevent construction of the dorm based on a possible future illegal use. If Singer used the building solely as a residential building, Buildings’ remedy would be to revoke or deny the certificate of occupancy.
9th & 10th Street LLC v. BSA, 2007 N.Y. Slip Op. 04549 (1st Dep’t May 29, 2007).
CITYLAND Comment: The City has filed a notice of appeal. In June 2006, Landmarks designated P.S. 64 as an individual landmark. Singer filed an article 78 challenging the designation, which a court stayed pending a final outcome of the BSA case. Singer filed a third suit for $100 million in damages against Landmarks, Buildings, BSA and Mayor Bloomberg in which he is represented by Randy Mastro.