High court denies PS 64’s conversion to dorm use

Local school affiliation a requisite for building permit. In 1998, Gregg Singer purchased PS 64 from the City, subject to the restriction that the property be used for a community facility. Singer then applied to the Department of Buildings to replace the PS 64 building, located at 609 East 9th Street, with a 19-story dormitory. Buildings asked Singer to provide a lease or deed with an educational institution to prove his proposed building was in fact a “college or school dormitory” and not a residential building, which would disqualify Singer from the dormitory floor area bonus. Rather than fulfill Buildings’ request, Singer proposed to form a not-for-profit to house college and university students. When Buildings denied Singer’s application, he appealed to BSA. But BSA upheld Buildings’ decision, ruling that it was necessary to ask for a proven school affiliation before issuing a building permit for a dormitory, which qualifies for a floor area bonus. 2 CityLand 152 (Nov. 15, 2005).

Singer then filed an Article 78 to reverse BSA’s ruling, but a lower court rejected Singer’s claim. On appeal the First Department reversed, ruling that Buildings’ request for proof of a school affiliation was arbitrary and capricious since a denial based on the lack of a current school affiliation would prevent construction of the dormitory based on a possible future illegal use. If Singer used the building solely as a residential building, Buildings could revoke or deny a certificate of occupancy. The City appealed. 3 CityLand 127 (Sept. 15, 2006).

The Court of Appeals ruled unanimously against Singer, noting that granting a permit for a potentially illegal use would create “needless problems” for the City and could force it to later make a difficult choice between “waiving the legal restrictions and requiring the building to remain vacant or to be torn down.”

9th & 10th St. LLC v. BSA, 2008 N.Y. Slip Op. 2678 (N.Y. Mar. 25, 2008) (Jeffrey E. Glen, for Singer; Michael A. Cardozo, Cheryl Payer, Stephen J. McGrath, Virginia Waters, for BSA).

CITYLAND Comment: Since Singer brought forth his case, Buildings adopted Rule 51-01, which requires proof of a connection between a school and a proposed dorm use, and Landmarks designated PS 64 as an individual landmark. 3 CityLand 93 (July 15, 2006).

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