NY Appeals Panel Annuls City's Denial of Building Permit for 9th & 10th Street Site
6/5/2007
New York, NY (May 30, 2007) - A New York State appeals panel has found that New York City's Department of Buildings (DOB) improperly denied a building permit for a 19-story college dormitory to the owner of the former P.S. 64 at East 9th & 10th Street, who has been blocked from developing the vacant building since he purchased it at auction from the City in 1998. Anderson Kill represented 9th & 10th Street, LLC.
Reversing a Manhattan Supreme Court decision, the Court's Appellate Division, First Department annulled the permit denial and remanded the matter for further administrative action. While the DOB had denied permission to build on the grounds that the proposed dormitory might eventually be converted to apartments, the appeals panel cited state precedent asserting that "possible future illegal use" is not sufficient grounds to block development.
The former school building was sold at auction by the City for $3.15 million to 9th & 10th Street St. LLC in 1998 with a deed restriction specifying that development must be limited to a "community facility use" as defined in the New York City Zoning Resolution at the time of auction. Such uses included college and school dormitories.
Community activists fiercely opposed the City's sale of the building and worked with sympathetic city officials to block development at every turn, notwithstanding the developer's vigorous outreach to a broad range of nonprofit and social service organizations. In a lawsuit, 9th and 10th Street owner Gregg Singer has alleged that Mayor Michael Bloomberg struck a deal with the area's former city councilwoman, Margarita Lopez, in which his administration would oppose the building's development in exchange for her support of his re-election.
In 2004, after a series of meetings with Landmarks Commission chairman Robert B. Tierney, 9th & 10th St. owner Gregg Singer filed a plan with DOB that would preserve the front of the old school while adding a 19-story college dormitory at the rear.
The DOB denied a building permit on grounds that the developer had not "established that the premises is [sic] a dormitory" and that there was no assurance that the building would not eventually be converted into apartments. Though Mr. Singer offered to prepare a lease and restrictive declaration, the DOB maintained that that "a dormitory use can only be established by controlling educational institutions."
Writing for the majority, Justice James M. Catterson cited New York law forbidding "administrative anticipatory punishment" and state precedent against denying permission to build based on the "mere evanescent possibility of future violation" Annulling the DOB's permit denial. Judge Catterson concluded: "The respondent's remedy for any attempt to use the building for an impermissible purpose is either denial or revocation of the certificate of occupancy."
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