Rear-yard variance upheld

Private for-profit school on the Upper West Side wanted to add a second story to a rear-yard building. Dwight School, a for-profit school located on West 88th Street, between Central Park West and Columbus Avenue, applied to BSA for a variance to add a second story to its gymnasium located in the rear yard. The expansion required a variance to exceed a 23 ft. height limit set for community facilities built in the rear yard. Dwight claimed that it needed the variance to make a reasonable return, arguing that it would lose international accreditation, enrollment would drop by 25%, and it would operate at a loss. BSA granted the variance after conducting hearings on the matter.

The Dwight School Neighbors filed an article 78 petition, claiming that the process was unfair because BSA had not allowed it an opportunity to respond to Dwight’s financial analysis submission. The lower court agreed and sent the matter back to BSA for further proceedings, where the Neighbors argued that it was unlikely that Dwight would lose enrollment if it lost accreditation. BSA again granted the variance.

The Neighbors filed a second article 78 petition, claiming there was no evidence to substantiate BSA’s determination. Justice Alice Schlesinger upheld the variance, finding that there was substantial evidence that Dwight could lose accreditation and suffer a decrease in enrollment. The court also found that variance applications from forprofit educational institutions were required to meet the criteria, but should be given special consideration because they serve a real societal interest. On appeal, the First Department affirmed.

In re Dwight School Neighbors v. BSA, 2004 NY Slip Op 08173, Nov. 16, 2004 (1st Dep’t) (Attorneys: Paul A. Engelmayer, Anjan Sahni, for Neighbors; Michael A. Cardozo, Grace Goodman, for BSA; Richard Lobel, for Dwight).

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