[ 885 NE2d 881, 856 NYS2d 28]

#### In the Matter of 9th & 10th Street L.L.C., Appellant, v Board of Standards and Appeals of the City of New York, Appellant.

Argued February 13, 2008;

decided March 25, 2008

*265POINTS OF COUNSEL

*Michael A. Cardozo, Corporation Counsel,*New York City *(Stephen J. McGrath, Virginia Waters*and *Cheryl Payer*of counsel), for appellant.

The Appellate Division erred in reversing Supreme Court, because the Board of Standards and Appeals’ determination sustaining the Department of Buildings is rational and should be upheld. *(Matter of New York Botanical Garden v Board of Stds. & Appeals of City of N.Y.,*91 NY2d 413; *People ex rel. Fordham Manor Refm. Church v Walsh,*244 NY 280; *Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals,*264 AD2d 59, 95 NY2d 437; *Human Dev. Servs. of Port Chester v Zoning Bd. of Appeals of Vil. of Port Chester,*110 AD2d 135, 67 NY2d 702; *Matter of Fuhst v Foley,*45 NY2d 441; *Matter of Newman v Zoning Bd. of Appeals of Town of Yorktown,*121 AD2d 543, 68 NY2d 610; *Matter of Marasco v Luney,*99 AD2d 492, 63 NY2d 605; *Matter of Paisley Dev. Corp. v Zoning Bd. of Appeals of Town of Milton,*58 AD2d 705; *Matter of Cowan v Kern,*41 NY2d 591; *Conley v Town of Brookhaven Zoning Bd. of Appeals,*40 NY2d 309.)

*Anderson Kill & Olick, P.C.,*New York City *(Steven Cooper, Jeffrey E. Glen*and *Gail M. Eckstein*of counsel), for respondent.

I. This Court’s standard of review is whether the Board of Standards and Appeals’ denial of the building permit was arbitrary or capricious or contrary to law. *(Matter of City of New York v New York City Civ. Serv. Commn.,*6 NY3d 855; *Matter of Wilson v City of White Plains,*95 NY2d 783.) II. 9th & 10th Street L.L.C. is entitled as a matter of right to construct the dormitory that is the subject of the application. *(Matter of Film-ways Communications of Syracuse v Douglas,*106 AD2d 185, 65 NY2d 878; *Matter of Committee To Save Washington Sq. v Dormitory Auth. of State of N.Y.,*281 AD2d 770; *Matter of New York Botanical Garden v Board of Stds. & Appeals of City of N.Y.,*91 NY2d 413; *Matter of Parkway Vil. Equities Corp. v Board of Stds. & Appeals of City of N.Y.,*279 AD2d 299; *Matter of Baskin v Zoning Bd. of Appeals of Town of Ramapo,*40 NY2d *266942; *Matter of Di Milia v Bennett,*149 AD2d 592; *Matter of Association of Friends of Sagaponack v Zoning Bd. of Appeals of Town of Southampton,*287 AD2d 620; *Matter of Kelly v Zoning Bd. of Appeals of Town of Harrison,*224 AD2d 424; *Matter of Kam Hampton I Realty Corp. v Board of Zoning Appeals of Vil. of E. Hampton,*273 AD2d 385; *People v Gulf Oil Corp.,*92 Misc 2d 107.) III. The Department of Buildings did not apply “standard Department of Buildings practice” in requiring proof of an institutional nexus as part of the permitting process. *(Matter of Rudin Mgt. Co. v Commissioner of Dept. of Consumer Affairs of City of N.Y.,*213 AD2d 185.) IV The Department of Buildings and the Board of Standards and Appeals have no authority to require proof of the institutional nexus at the prepermitting stage as a condition of building the “as-of-right” dormitory. *(Appelbaum v Deutsch,*66 NY2d 975; *Matter of Ford v Zoning Bd. of Appeals of City of Long Beach,*7 AD3d 797.) V Denying an “as-of-right” permit based on community and political opposition is illegal. *(Matter of Fox v City of Buffalo Zoning Bd. of Appeals,*60 AD2d 991.)

*Katie Kendall,*New York City, *Vicki Been*and *Michael Gruen*for Municipal Art Society of New York, Inc., amicus curiae.

I. The order of the Appellate Division, First Department, subverts the intent of the community facilities provisions of the New York City Zoning Resolution by allowing an applicant to build the additional bulk permitted for community facilities without any demonstration that the building will in fact be used as a community facility. *(Matter of Reed v Board of Stds. & Appeals of City of N.Y.,*255 NY 126.) II. Substantiating the use before construction is critical in implementing the New York City Zoning Resolution; the order of the Appellate Division, if upheld, would cripple the ability of a municipality to interpret and enforce its zoning regulations. *(Asian Ams. for Equality v Koch,*72 NY2d 121; *Berenson v Town of New Castle,*38 NY2d 102; *Stringfellow’s of N.Y. v City of New York,*91 NY2d 382; *Schad v Mount Ephraim,*452 US 61; *Penn Central Transp. Co. v New York City,*438 US 104; *New Orleans v Dukes,*427 US 297; *Young v American Mini Theatres, Inc.,*427 US 50; *Village of Belle Terre v Boraas,*416 US 1; *Berman v Parker,*348 US 26; *Welch v Swasey,*214 US 91.)

*The Plunkett & Jaffe Group of McKenna Long & Aldridge LLP,*New York City *(William F. Plunkett Jr., Charles E. Dorkey III*and *Timothy J. Plunkett*of counsel), for Defenders of the Historic Upper East Side and others, amici curiae.

I. The ac*267tions of the Department of Buildings were neither arbitrary nor capricious. II. To the extent *Matter of Di Milia v Bennett*(149 AD2d 592 [1989]) and *Matter of Baskin v Zoning Bd. of Appeals of Town of Ramapo*(40 NY2d 942 [1976]) have any relevance to these facts, they should not be followed, but rather confined to their facts.

*Stroock & Stroock & Lavan LLP,*New York City *(Ross F. Moskowitz*and *Claude G. Szyfer*of counsel), for Real Estate Board of New York, Inc., amicus curiae.

I. The Department of Buildings cannot deny “as of right” permits. *(Matter of Di Milia v Bennett,*149 AD2d 592; *Matter of Baskin v Zoning Bd. of Appeals of Town of Ramapo,*40 NY2d 942.) II. The City of New York has adequate legal and practical power to enforce the use restrictions of buildings. III. Substantial research into the economic viability of the dormitory project has been undertaken.

OPINION OF THE COURT

Smith, J.

Petitioner sought a building permit to construct a dormitory. The New York City Department of Buildings denied the permit on the ground that petitioner had not shown it could actually use the building as a dormitory, and that if it did not do so the result would be either an illegal use or a vacant building. We hold that the Department’s action was not arbitrary and capricious. Where there is reason to doubt that a proposed structure can be used for a lawful purpose, municipal authorities are not required to let the property owner build the building and see what happens.

Facts and Procedural History

Petitioner acquired from New York City a lot on East 9th Street in Manhattan, occupied by a former school building. The deed under which petitioner took title restricts development of the property to “a ‘Community Facility Use’ as such use is defined in the New York City Zoning Resolution.” That Zoning Resolution lists several permitted uses; the one relevant here is “[c]ollege or school student dormitories” (Zoning Resolution § 22-13).

After several years, petitioner submitted to the New York City Department of Buildings an application to build a 19 story dormitory on the property—a dormitory that, as proposed by petitioner, would be configured much like an ordinary apartment building. A dormitory was allowed by the applicable zon*268ing, as well as by the deed. However, if the proposed structure turned out to be an ordinary apartment building, it would violate both the deed and the zoning laws. Apartment buildings were lawful in the zoning district where the property was located, but such buildings were treated less favorably than dormitories and other “community facilities”; an apartment building on petitioner’s site would have been limited to 10 stories.

The Department took the position, which petitioner does not now contest, that a “[cjollege or school student dormitor[yj” within the meaning of the Zoning Resolution is not just a building in which the apartments are rented to students. Under the Department’s interpretation, a building qualifies as a dormitory only if it is operated by, or on behalf of, at least one college or school. Thus, the Department asked petitioner to “substantiate” the proposed dormitory use by showing an “institutional nexus”—a connection with an educational institution sufficient to persuade the Department that the building, when built, really would be a dormitory.*

Petitioner tried unsuccessfully to satisfy the Department’s request for proof of a “nexus” with a college or school. Petitioner committed itself to lease the property for at least 10 years to University House Corp. (UHC)—an entity created, apparently by petitioner’s lawyers, around the time of the application for the building permit. Petitioner promised the Department that UHC’s board of directors would consist solely of people appointed by “participating educational institutions” and that the building would be operated as a dormitory for college or school students. It did not, however, identify any educational institution that had committed itself to use the building as a dormitory for its students, or had even expressed an interest in doing so.

The Department refused to approve petitioner’s application for a building permit, and the Board of Standards and Appeals (BSA) denied petitioner’s appeal from that refusal. Petitioner brought this CPLR article 78 proceeding to annul the BSA’s determination. Supreme Court denied relief and dismissed the proceeding, but the Appellate Division reversed, with two Jus*269tices dissenting. The Appellate Division relied on *Matter of Di Milia v Bennett*(149 AD2d 592 [2d Dept 1989]) and *Matter of Baskin v Zoning Bd. of Appeals of Town of Ramapo*(40 NY2d 942 [1976], *revg, on dissenting mem of Shapiro, J.,*48 AD2d 667 [2d Dept 1975]), which it read as holding that a building permit could not be denied on the basis of “a possible future illegal use” (43 AD3d 36, 41 [2007] [emphasis omitted]). In the view of the Appellate Division majority, the Department’s refusal to issue a building permit to petitioner was “an impermissible administrative anticipatory punishment” *{id.*at 37). If the building was not ultimately used as a dormitory, the Appellate Division held, the City’s remedy was “either denial or revocation of the certificate of occupancy” or an action to enforce the restriction in the deed *{id.*at 42).

The BSA appealed to us as of right pursuant to CPLR 5601 (a), and we now reverse.

Discussion

Petitioner relies, as did the Appellate Division majority, on *Di Milia*and *Baskin*for the proposition that a building permit cannot be withheld because of concern that the proposed building will be used illegally. Petitioner reads *Di Milia*and *Baskin*too broadly. Both cases hold that the mere possibility of a future illegal use is not an adequate reason for withholding a building permit. But where, as here, officials reasonably fear that the legal use proposed for a building will prove impracticable, it is not improper to insist on a showing that the applicant can actually do what it says it will do.

In both *Di Milia*and *Baskin,*municipal authorities denied permits to construct one-family dwellings, because they feared that the houses might be converted to illegal two-family dwellings. Nothing in either opinion, however, suggests that one-family use was unlikely or impractical. On the contrary, Justice Shapiro’s dissent in *Baskin,*which we adopted, says that “the residence will concededly be occupied by . . . one family” (48 AD2d at 668-669). At least in *Baskin,*the municipality’s concern was that, because of the design of the home, it might, after being occupied by one family for some time, easily be occupied, illegally, by two. From the terse opinion in *Di Milia,*it appears that the concern there was similar. In each case, the court held that this possibility of “future illegal use” *(Di Milia,*149 AD2d at 593) was not a valid reason for withholding a building permit.

*Di Milia*and *Baskin*would be applicable here if it were clear that petitioner’s proposed building would be used initially as a *270dormitory. If that were the case, the mere possibility that it could later be converted to illegal apartment use would not justify withholding a building permit. But here, the Department of Buildings doubted that dormitory use would ever be possible, and asked for assurances—in the form of a connection with an educational institution—that it would be.

To seek such assurances seems no more than prudent. 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. The City’s officials did not act arbitrarily or capriciously in trying to avoid that dilemma.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Order reversed, etc.

*

 During the course of its discussions with petitioner, the Department promulgated a new regulation (1 RCNY 51-01) governing applications for permits to build dormitories. The requirements this regulation imposes are similar to those the Department imposed on petitioner here, but both sides agree that the regulation does not apply to this case.