In Matter of 9th & 10th St. LLC v. BSA of City of New York , 9th & 10th St. LLC filed suit against the Board of Standards & Appeals (BSA) to compel the agency to provide the LLC with a permit to build a proposed dormitory.
The LLC proposed to construct a 19-story structure, whose use was restricted to a "Community Facility." While the proposal was to provide housing for "college or school students," BSA was concerned the dorm might later may be converted into an apartment complex and denied a permit on the grounds there was insufficient evidence that the building could, in fact, be used for the intended purpose. (Although an apartment building was a lawful, that kind of structure was restricted to 10 stories rather than the proposed 19.)
To qualify as a dormitory, a building needs to be "operated by, or on behalf of, at least one college or school." The LLC failed to provide an adequate "institutional nexus" despite its production of a lease to "University House Corps.," an LLC-created entity which promised to rent out the units to students.
When the New York County Supreme Court denied the LLC's challenge it appealed to the Appellate Division, First Department, which was of the opinion that a building permit couldn't be refused on the basis of "a possible future illegal use."
BSA then appealed to our state's highest court which held that when there is a reasonable apprehension a building's planned use isn't legally permissible, the City is "not required to let the property owner build the building and see what happens."
The Court of Appeals was of the opinion that seeking assurances from the developers wouldn't suffice as it "would create needless problems if petitioner built a 19 story building, only to find that it could not use it in a legally-permitted way. The City would then face a choice between waiving the legal restrictions and requiring the building to remain vacant or be torn down."
Since the BSA was trying to avoid that dilemma, the Court of Appeals reinstated the Supreme Court's denial of the challenge.
Are sweet dreams made of this ?
To download a copy of the Court of Appeals' decision, please use this link: Matter of 9th & 10th St. LLC v. BSA of City of New York