IN RE: Application of The NEW YORK BOTANICAL GARDEN (1997)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of The NEW YORK BOTANICAL GARDEN, Petitioner-Appellant, For a Judgment, etc., v. BOARD OF STANDARDS AND APPEALS OF THE CITY OF NEW YORK, Respondent-Respondent, Fordham University, Intervenor-Respondent-Respondent. Municipal Art Society of New York, Inc., Amicus Curiae.

Decided: April 15, 1997

Before ROSENBERGER, J.P., and ELLERIN, NARDELLI and TOM, JJ.

Jeffrey L. Braun, for Petitioner-Appellant. Deborah R. Douglas, for Respondent. Deirdre A. Carson, for Intervenor-Respondent-Respondent. Edward N. Costikyan, for Amicus Curiae.

Order and judgment (one paper), Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered September 3, 1996, which denied petitioner's application pursuant to CPLR article 78 to annul respondent agency's determination that a radio tower being built on intervenor-respondent's university campus is an accessory use, and dismissed the petition, unanimously affirmed, without costs.

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 (N.Y. City Zoning Resolution § 12-10[b],[q] ). Accordingly, the determination was properly confirmed (see, Matter of Toys “R” Us v. Silva, 89 N.Y.2d 411, 654 N.Y.S.2d 100, 106, 676 N.E.2d 862, 868; Matter of Khan v. Zoning Bd. of Appeals, 87 N.Y.2d 344, 351, 639 N.Y.S.2d 302, 662 N.E.2d 782).

MEMORANDUM DECISION.

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