New York Botanical Garden v. Board of Standards and Appeals of City of New York

• Decision Date: 02 April 1998
• Citation: 694 N.E.2d 424,91 N.Y.2d 413,671 N.Y.S.2d 423
• Parties: , 694 N.E.2d 424, 125 Ed. Law Rep. 775, 1998 N.Y. Slip Op. 3019 In the Matter of NEW YORK BOTANICAL GARDEN, Appellant, v. BOARD OF STANDARDS AND APPEALS OF the CITY OF NEW YORK, Respondent, and Fordham University, Intervenor-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 423

671 N.Y.S.2d 423

91 N.Y.2d 413, 694 N.E.2d 424, 125

Ed. Law Rep. 775,

1998 N.Y. Slip Op. 3019

In the Matter of NEW YORK BOTANICAL GARDEN, Appellant, v. BOARD OF STANDARDS AND APPEALS OF the CITY OF NEW YORK, Respondent and Fordham University, Intervenor-Respondent.

Court of Appeals of New York.

April 2, 1998.

Rosenman & Colin, L.L.P., New York City (Jeffrey L. Braun, Kenneth Lowenstein and Rosemary Halligan, of counsel), for appellant.

Jeffrey D. Friedlander, Acting Corporation Counsel of New York City (Deborah R. Douglas and Kristin M. Helmers, of counsel), for respondent.

Kurzman Karelsen & Frank, L.L.P., New York City (Deirdre A. Carson and Joanne Seminara Lehu, of counsel), for intervenor-respondent.

Edward N. Costikyan, New York City, for Municipal Art Society of New York, Inc., amicus curiae.

OPINION OF THE COURT

WESLEY, Judge.

In 1993, Fordham University applied to the New York City Department of Buildings (DOB) for a permit to build a new broadcasting facility and attendant tower as an accessory use on its Rose Hill campus. The DOB issued Fordham a building permit. After construction began, the New York Botanical Garden objected to the issuance of the permit. The DOB Commissioner determined that the radio station and accompanying tower together were an accessory use within the meaning of section 12-10 of the New York City Zoning Resolution. The Botanical Garden appealed to the Board of Standards and Appeals (BSA) which, after reviewing numerous submissions from both parties and holding two public hearings, unanimously confirmed the Commissioner's determination. The issue before this Court is whether that determination was arbitrary or capricious; we agree with both lower courts that it was not.

Fordham University was founded in 1841, at the site of the current main campus, as St. John's College. Shortly thereafter, the Jesuits assumed administration of the institution; it took its current name in 1907. The main campus is situated on approximately 80 acres in the Rose Hill section of the North Bronx, directly adjacent along its eastern border to the Botanical Garden. The campus falls within an R6 zoning district (medium density residential). The University offers a wide variety of graduate and undergraduate studies, including degree programs in communications and media studies. As part of these programs, the University offers courses such as "Introduction to Radio," "Radio News Techniques," "Broadcast News Operations" and an internship at the University's radio station, WFUV.

Fordham has operated WFUV as an on-campus, noncommercial, educational radio station since 1947. WFUV is affiliated with National Public Radio and has operated at its current signal strength of 50,000 watts since 1969. The station's current antenna extends 190 feet above ground level and is situated atop the University's Keating Hall, which also houses WFUV's broadcast studio. In 1983, Fordham explored new sites for the antenna. On February 17, 1993, it filed an application with the DOB to construct a new one-story radio transmitting building and an accessory 480-foot (approximately 45-story) radio tower midway along the eastern border of the campus. The application correctly identified the University as a Use Group 3 facility, a permitted use within R6 zoning districts (see, N.Y. City Zoning Resolution § 22-13), and described the tower and radio station as an accessory use to the principal use of the property as an educational institution. DOB approved the project and issued a building permit on March 1, 1994; construction began shortly after the permit was renewed on May 13, 1994.

By letter to the DOB Commissioner dated June 30, 1994, the Botanical Garden, which is located across a four-lane thoroughfare from the tower site, objected to the construction and its classification as an "accessory use" under the Zoning Resolution. By that time, construction of the tower was partially complete, at a cost to Fordham of $800,000. On July 1, 1994, the DOB Commissioner issued a stop work order pending resolution of the objection.

By letter of September 12, 1994, the Commissioner informed Fordham that the DOB had determined that the tower did in fact constitute an accessory use within the meaning of Zoning Resolution § 12-10. In response to the Botanical Garden's request, the Commissioner issued a final determination confirming the decision on November 7, 1994. The Botanical Garden filed an administrative appeal with the BSA on December 6, 1994. After reviewing substantial submissions, and holding two public hearings, the BSA affirmed the Commissioner's determination. The BSA found that Fordham's operation of a radio station of this size and power was "clearly incidental to the educational mission of the University," and that it was "commonplace" for universities to operate stations "at or near the same power level." The BSA expressly ruled that "the sole issue * * * is whether the proposed tower is 'incidental to' and 'customarily found' in connection with the University and not whether the tower could be smaller or relocated to another site."

The Botanical Garden then commenced this CPLR article 78 proceeding to annul the BSA's determination that the radio station and tower constituted an accessory use of Fordham's property. The trial court dismissed the petition, holding that the BSA's determination was rational and supported by substantial evidence. The court noted that aesthetics appeared to be at the heart of petitioner's concerns, and implicitly rejected this as a valid basis for labeling the BSA's determination arbitrary and capricious. The court further noted that the record was devoid of any proof that the Botanical Garden would suffer any economic harm, that the tower presented any sort of danger or that the tower would prompt an undesirable change in the character of the neighborhood. The court found it significant that Federal policy and Federal Communications Commission (FCC) regulations encourage local authorities to accommodate radio communications, and that FCC guidelines on radiation exposure levels made a new tower a practical necessity. The court noted that it would be "an arrogant abuse of judicial power" to annul the BSA's determination after its expert members had considered all the relevant factors and decided that the tower was a proper accessory use. Finally, the court noted that petitioner's application suffered from "a taint of laches," in that it had waited until the tower was half complete before taking action. The Botanical Garden appealed.

The Appellate Division unanimously affirmed. The Court held that:

"Respondent's determination is supported by substantial evidence that it is commonplace for universities to own and operate radio stations many of which operate at or near the same power level of the proposed radio station, and is rationally based on a statute that specifically lists radio towers as an accessory use." (238 A.D.2d 200, 656 N.Y.S.2d 242.)

We granted petitioner leave to appeal, and now affirm.

This Court has frequently recognized that the BSA is comprised of experts in land use and planning, and that its interpretation of the Zoning Resolution is entitled to deference. So long as its interpretation is neither "irrational, unreasonable nor inconsistent with the governing statute," it will be upheld (Matter of Trump-Equitable Fifth Ave. Co. v. Gliedman, 62 N.Y.2d 539, 545, 478 N.Y.S.2d 846, 467 N.E.2d 510). Of course, this principle does not apply to purely legal determinations; where "the question is one of pure legal interpretation of statutory terms, deference to the BSA is not required" (Matter of Toys "R" Us v. Silva, 89 N.Y.2d 411, 419, 654 N.Y.S.2d 100, 676 N.E.2d 862). However, "when applying its special expertise in a particular field to interpret statutory language, an agency's rational construction is entitled to deference" (Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98, 102, 667 N.Y.S.2d 327, 689 N.E.2d 1373).

Here, the BSA determined that Fordham's radio station and tower constituted an "accessory use" within the meaning of Zoning Resolution § 12-10. That section provides that an accessory use:

"(a) Is a use conducted on the same zoning lot as the principal use to which it is related (whether located within the same or an accessory building or other structure, or as an accessory use of land) * * * and

"(b) Is a use which is clearly incidental to, and customarily found in connection with, such principal use; and "(c) Is either in the same ownership as such principal use, or is operated and maintained on the same zoning lot substantially for the benefit or convenience of the owners, occupants, employees, customers, or visitors of the principal use."

Thus, Zoning Resolution § 12-10 sets forth a three-prong test for determining whether a use qualifies as an accessory one: first, it must be conducted on the same zoning lot as the principal use; second, it must be "clearly incidental to, and customarily found in connection with" the principal use; and third, there must be unity of ownership, either legal or beneficial, between the principal and accessory uses. Petitioner acknowledges that the first and third prongs are satisfied here. It takes issue, however, with the BSA's determination that a tower of this size is clearly incidental to, and customarily found in connection with, the principal use of this land as a university campus. Petitioner also maintains that this question, particularly the "customarily found" inquiry, presents an issue of pure statutory construction and therefore this Court should not give any deference to the BSA determination. We disagree.

Whether a proposed accessory use is clearly incidental to and customarily found in connection with the principal use depends on an analysis of the nature and character of the principal use of the land in question in relation to the accessory use, taking into consideration the over-all...