New York University, Plaintiff, v. City of New York, Defendant. (2026)

In 2021, defendant, the City of New York, rezoned the SoHo and NoHo neighborhoods of Manhattan to form the Special SoHo-NoHo Mixed Use District. When the rezoning proposal was at the last stage of public consideration, "the City Council added to that proposal a prohibition on college or university uses of property in the rezoned area." (New York Univ. v City of New York, 2023 NY Slip Op 50479[U], *1 [Sup Ct, NY County 2023], revd 230 AD3d 416 [1st Dept 2024].) The proposal was enacted, along with the university-use prohibition codified at § 143-11 (a) of the New York City Zoning Resolution.

Plaintiff, New York University, brought this action against the City in 2022. Plaintiff is seeking a declaration that § 143-11 (a) is ultra vires and constitutional; and an injunction against its enforcement.

Defendant moved to dismiss; and plaintiff cross-moved for summary judgment in its favor on the complaint (mot seq 001). While the motion and cross-motion were pending, numerous nonparties moved as a group for leave to intervene (mot seq 003).¹ In September 2022, defendant moved to dismiss the complaint on the grounds that plaintiff lacked standing and failed to state a cause of action (mot seq 001). Plaintiff cross-moved for summary judgment on the complaint. In January 2023, a group of nonparties moved to intervene in this action (mot seq 003). (See NYSCEF No. 69 [order to show cause].)

This court granted defendant's motion to dismiss and denied plaintiff's cross-motion, holding that plaintiff lacked standing because it had not sufficiently alleged a cognizable injury in fact. (See New York Univ., 2023 NY Slip Op 50479[U] at *6.) In turn, this court denied the motion to intervene as academic.

Plaintiff appealed, and the Appellate Division, First Department, reversed. (See New York Univ., 230 AD3d 416.) The First Department held that plaintiff had alleged a cognizable injury that established its standing to sue. (Id. at 420-421.) The Court therefore vacated the dismissal of the action and remanded for further proceedings. (Id. at 422.)

On remand, the same group of proposed intervenors move again for leave to intervene (mot seq 004). Plaintiff also moves for summary judgment on its complaint; and defendant cross-moves for summary judgment dismissing the complaint (mot seq 005). The motion for leave to intervene is denied. Plaintiff's motion for summary judgment is granted. Defendant's cross-motion is denied.

DISCUSSION

I. The Nonparties' Motion for Leave to Intervene (Mot Seq 004)

The group of nonparties that sought intervention when this action was at the pleading stage now again moves for leave to intervene. (See NYSCEF No. 94 at 1-2.) Proposed intervenors seek (1) to support defendant's position that § 143-11 (a) is constitutional; (2) to bring a cross-claim against defendant for failing to fully evaluate the environmental impact of allowing university use in the district, should this court hold § 143-11 (a) is unconstitutional; and (3) injunctive relief requiring a supplemental environmental impact statement.² (See NYSCEF No. 104 at 1-2.)

As relevant here, a party may intervene timely by motion as of right "when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment." (CPLR 1012 [a] [2].) Alternatively, a party may intervene by timely motion if "the person's claim or defense and the main action have a common question of law or fact." (CPLR 1013.) The sort of intervention sought is immaterial. (See Yuppie Puppy Pet Prods., Inc. v St. Smart Realty, LLC, 77 AD3d 197, 201 [1st Dept 2010] ["Distinctions between intervention as of right and discretionary intervention are no longer sharply applied."].) Intervention "is warranted only where the proposed intervenor demonstrates a real and substantial interest in the outcome of the proceeding." (Pivar v Pivar, 245 AD3d 426, 426 [1st Dept 2026].)

Even assuming that intervention at this juncture would be timely and would not unduly prejudice the parties or cause undue delay, intervention is unwarranted. To start, the court is unpersuaded that defendant's representation of the proposed intervenors' interests on the constitutionality of § 143-11 (a) will be insufficient. (See CPLR 1012 [a] [2].) The proposed intervenors take the same position as defendant. Moreover, the judgment will not be binding—i.e., it will have no claim-preclusive effect—on the proposed intervenors, who are not in privity with defendant. (See Yuppie Puppy Pet Prods., 77 AD3d at 202.)

In addition, the potential cross-claim is unrelated to plaintiff's claim about the constitutionality of § 143-11 (a). (See CPLR 1013.) The cross-claim presents questions about the extent of environmental review that preceded passage of the zoning ordinance.³ It will not affect this court's determination on the constitutional claim. Nor is this court persuaded that the parties have a substantial interest in the outcome of the current action. The proposed intervenors do not identify the direct effect that this litigation will have on them; and the outcome in this action will not preclude them from raising their environmental concerns against defendant in a separate action or proceeding.⁴ (See Berkoski v Board of Trustees of Inc. Vil. of Southampton, 67 AD3d 840, 844 [2d Dept 2009] [holding that those directly affected by an injunction have a real and substantial interest in the litigation, but that their advocates do not].)

The motion to intervene is denied.

II. Plaintiff's Motion for Summary Judgment in its Favor and Defendant's Cross-Motion for Summary Judgment Dismissing the Complaint (Mot Seq 005)

On motion sequence 005, plaintiff moves for summary judgment on its claim for a declaration that zoning resolution § 143-11 (a) is ultra vires and therefore unconstitutional, and on its accompanying request for injunctive relief. Defendant cross-moves for summary judgment dismissing the complaint. Plaintiff's motion is granted. Defendant's motion is denied.

Before 2021, SoHo-NoHo was zoned as a light manufacturing (M1) district. The 2021 rezoning introduced residential use, pairing the M1 district with a residence district to form a special mixed-use district. (ZR § 123-10.) Generally, all uses permitted in both a residence district and an M1 district are permissible in special mixed-use districts. (See ZR §§ 123-20, 22-00, 22-13, 42-00.) Under the rezoning as initially conceived, therefore, "residential uses—including college and university uses—would be permitted as-of-right throughout the newly proposed zoning districts." (New York Univ., 2023 NY Slip Op 50479[U] at *1-2 [internal quotations marks omitted].) But under the amendment to the rezoning plan that added § 143-11 (a), college or university uses are categorically prohibited in the new Special District. (See ZR § 143-11 [a].)

As a result, a college or university wishing to engage in new educational uses within the Special District must first obtain a ZR § 72-21 variance from the Board of Standards and Appeals (BSA). Before granting a variance, the BSA must find that the unique physical conditions of the property would impose "practical difficulties or unnecessary hardship . . . in complying strictly with the use or bulk provisions of the Resolution" and that "the variance, if granted, is the minimum variance necessary to afford relief." (Id. § 72-21 [a], [e] [emphasis omitted].)

Plaintiff contends that requiring it to obtain a variance for educational uses in the new Special District is ultra vires because it exceeds defendant's police power (and is therefore also unconstitutional). This court agrees.

Legislative ordinances "are cloaked with a presumption of constitutionality." (Trustees of Union Coll. in Town of Schenectady in State of NY v Members of the Schenectady City Council, 230 AD2d 17, 19 [3d Dept 1997], affd 91 NY2d 161 [1997].) To overcome that presumption, plaintiff must show, "beyond a reasonable doubt," that the ordinance "is not designed to accomplish or advance a legitimate public purpose or, stated another way, bears no substantial relation to the public health, safety, morals, or general welfare" (Id. [internal citation and quotation marks omitted].)

In Cornell Univ. v Bagnardi, the Court of Appeals addressed the scope of municipal zoning authority over educational uses, in the exercise of municipalities' police power to promote the "morals, health, welfare and safety of the community." (68 NY2d 583, 594 [1986].) The Court held that a municipality may not categorically exclude educational institutions from a residential district. (See id. at 594.) Schools and universities, "by their very nature, singularly serve the public's welfare and morals." (Id. at 593). For this reason, their total exclusion "serves no end that is reasonably related to the morals, health, welfare and safety of the community." (Id. at 594.)

At the same time, the Court of Appeals expressly declined to hold that a municipality is necessarily required to permit any particular educational use in a given residential district. The Court acknowledged that "there are many instances in which a particular educational or religious use may actually detract from the public's health, safety, welfare or morals," and that "[i]n those instances, the institution may be properly denied." (Id. at 595.) But an educational institution must be permitted "the opportunity to have its presumptively beneficial educational use weighed against competing interests." (Trustees of Union Coll. in Town of Schenectady in State of NY v Members of Schenectady City Council, 91 NY2d 161, 166 [1997].) The Court held in Cornell the use of a special-permit application best serves this goal, by "afford[ing] zoning boards an opportunity to weigh the proposed use in relation to neighboring land uses and to cushion any adverse effects by the imposition of conditions designed to mitigate them." (Cornell Univ., 68 NY2d at 596.)

Here, § 143-11 (a) imposes a categorical bar on (post-secondary) educational uses, avoidable only through obtaining a zoning variance—the same kind of restriction that the Court of Appeals held impermissible in Cornell and Union College.⁵ It would seem to be readily apparent, therefore, that plaintiff is entitled to its requested declaration that § 143-11 (a) is ultra vires.

Defendant argues, though, that the legal inquiry here is not as simple as it would appear. Defendant does not dispute that, on paper, the mixed-use district wholly prohibits college and university uses—without making available a special-permit process like the one endorsed in Cornell. Instead, defendant argues that the BSA's review of requests for educational-use variances is sufficiently deferential that it effectively constitutes a Cornell-style balancing of the benefits of educational uses against those uses' accompanying/offsetting costs to the public welfare. (See NYSCEF No. 146 at 16.) Giving due weight to defendant's arguments, and to the BSA zoning determinations to which defendant points in support of those arguments, this court ultimately concludes that defendant's position is unpersuasive.

A variance application, by its very nature, requires that the property-owner sufficiently justify a desired use (or expanded use) that is prohibited by the applicable zoning provisions. As discussed above, under the New York City Zoning Resolution, the necessary justification must come in the form of a showing that the property-owner's limiting itself to conforming uses will cause it "practical difficulties or unnecessary hardship," and that the requested "variance, if granted, is the minimum variance necessary to afford relief." (ZR § 72-21 [a], [e]; accord Kettaneh v Board of Stds. & Appeals of the City of NY, 85 AD3d 620, 621-622 [1st Dept 2011] [discussing the required variance analysis].) The BSA's "deferential variance" approach for educational uses does not shift this focus away from the property-owner's reasons for needing the requested variance—and no more than that variance—to be able to make meaningful use of its property. To the contrary, the BSA determinations that defendant submits on this motion reflect that, even in deferentially evaluating educational-use variance applications, the BSA still requires property owners to show not only that they have a "programmatic need" for the uses that they wish to engage in, but also that the requested variance is the minimum necessary to accommodate that programmatic need. (See NYSCEF No. 139 at 4, 5 [BSA Resolution 312-12-BZ] [PDF pagination]; id. at 9-10, 12 [BSA Resolution 58-11-BZ]; id. at 15-16 [BSA Resolution 310-13-BZ].⁶ )

Cornell, on the other hand, expressly holds that an educational institution's need to engage in a new use of its property (or to expand an existing use) is irrelevant to the zoning analysis. (See 68 NY2d at 597-598; accord Matter of Pine Knolls Alliance Church, 5 NY3d at 412-414 [discussing this aspect of Cornell in the context of a special-permit application by a religious institution].) Given the presumptively beneficial effect of educational uses, an educational institution need not justify why it wishes to engage in a given use (or expand an existing use)—that the use is educational in nature is a sufficient justification in itself. The question is instead limited to whether the property owner's application sufficiently establishes "compliance with legislatively imposed conditions pertaining to the intended use" that are intended to minimize or mitigate any adverse effects of that use. (Matter of Wegmans Enters. v Lansing, 72 NY2d 1000, 1001 [1988] [discussing special-permit requirements]; see Cornell Univ., 68 NY2d at 596-597; accord Matter of Pine Knolls Alliance Church, 5 NY3d at 412-413.)

For these reasons, this court disagrees with defendant's position that the BSA's "deferential variance" approach is consistent with Cornell and subsequent Court of Appeals decisions.⁷ Alternatively, defendant argues that this court should not even reach the question now "whether the scope of the deferential variance applied by the BSA to vary the university limitation will conform with Cornell and its progeny." (NYSCEF No. 146 at 17; see also NYSCEF No. 155 at 5 [same].) That is, defendant says, "until NYU, or another institution, is denied a variance," this issue will not "be ripe for review." This argument is unpersuasive.

As a facial matter, the variance procedure provided on paper by ZR § 72-21 imposes a categorically greater burden on educational institutions than permitted by Cornell and Union College. That greater burden supports a conclusion, as a matter of law, that § 143-11 (a)'s bar on college and university uses is ultra vires. To the extent that defendant's argument is that the BSA has devised a "deferential variance" approach that imposes a lower burden on educational-use applicants than what § 72-21 would otherwise require, this court still has a sufficient record before it to determine, as a matter of law, whether these "deferential variances" comply now with with Cornell/Union (as defendant argues). In these circumstances, the mere possibility that the BSA might, in the future, choose to afford even more deference to educational-use variance applications than called for by the language of § 72-21 is not sufficient to render the current action unripe. Put differently, as the First Department held in reversing the grant of defendant's dismissal motion, "[j]udicial consideration of NYU's claim seeking a declaration as to the unconstitutionality of the ZR amendment should not require that it first experience the harm it seeks to avoid by challenging the amendment." (New York Univ., 230 AD3d at 421.)

Plaintiff's challenge to ZR § 143-11 (a) is therefore ripe for this court's decision. And plaintiff has established that to be a permissible exercise of defendant's zoning authority, § 143-11 (a)'s bar on college and university uses must be tempered by a special-permit process, or its equivalent, that does not require the applicant to show a need for the use being applied for. If, as is currently the case, the zoning rules governing the Special District do not provide for a process of that kind, § 143-11 (a) is ultra vires and unconstitutional.⁸

Defendant does not challenge plaintiff's right to an injunction against enforcement of § 143-11 (a), should this court hold that provision ultra vires. Plaintiff's request for injunctive relief is therefore granted.

Accordingly, it is

ORDERED that the nonparties' motion to intervene (mot seq 004) is denied and it is further

ORDERED, that plaintiff's motion for summary judgment in its favor (mot seq 005) is granted; and it is further

ORDERED that defendant's cross-motion for summary judgment dismissing the complaint (mot seq 005) is denied; and it is further

ORDERED, ADJUDGED, AND DECLARED that absent a special-permit process (or its equivalent) for college and university uses in the Special SoHo-NoHo Mixed Use District that does not require the applicant to show a need for the requested use, Zoning Resolution § 143-11 (a)'s prohibition on college and university uses in the Special District is ultra vires, unconstitutional, and without effect; and it is further

ORDERED that absent the special-permit process described above, defendant, and its officers, employees, and agents, are enjoined from enforcing § 143-11 (a); and it is further

ORDERED that plaintiff shall serve notice of entry on defendant and on counsel for proposed intervenors; and on the office of the County Clerk (using the NYSCEF filing event "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.

DATE 10/1/2026

FOOTNOTES

1.   Proposed intervenors are the Coalition for Fairness in SoHo and NoHo, Inc., Village Preservation, the NoHo Neighborhood Association, and the Bowery Alliance of Neighbors; and Councilmember Christopher Marte, Kay Powell, Amit Solomon, Ian Kerner, Lisa Rubisch, Jennifer Pettit, Robert Riccobono, and Jeanne Wilcke.

2.   Both plaintiff and defendant oppose undertaking a supplemental environmental impact statement.

3.   On reply, proposed intervenors argue that their environmental concerns are relevant to the current litigation because the environment is a factor defendant should balance against educational use when creating an educational-use zoning restriction. (See NYSCEF No. 156 at 8-9.) But this contention is in tension with the proposed intervenors' explicit belief that the ordinance is constitutional as it now stands.

4.   This court declines to consider the merits of proposed intervenors' cross-claim.

5.   Defendant contends (NYSCEF No. 146 at 13-14) that it was entitled to make a categorical determination that the value of educational uses in the Special District is outweighed in all cases by other interests, particularly affordability of housing. But the Court of Appeals rejected this precise argument in Union College. There, the Court held that the zoning ordinance at issue was legally infirm because it "merely reflect[ed] the City's sweeping policy decision that historical preservation interests will, in all cases, outweigh educational interests," thereby "improperly eliminating any opportunity for the balancing of individual educational uses against the public's historical preservation interests." (91 NY2d at 166; see also Cornell, 68 NY2d at 595-596; accord Matter of Pine Knolls Alliance Church v Zoning Bd. of Appeals of the Town of Moreau, 5 NY3d 407, 412 [2005] ["We have invalidated ordinances that impose blanket bans on religious or educational uses in particular communities in favor of a case-by-case review, endorsing the special use permit application process as the proper procedure for addressing expansion requests."].)

6.    Accord e.g. BSA Resolution 2020-61-BZ at 3-4, 6 (Feb. 8, 2021) (same), available at https://www.nyc.gov/assets/bsa/downloads/pdf/decisions/2020-61-BZ.pdf (last accessed Sept. 30, 2026); BSA Resolution 2019-6-BZ at 3-4, 5 (June 15, 2020) (same), available at https://www.nyc.gov/assets/bsa/downloads/pdf/decisions/2019-6-BZ.pdf (last accessed Sept. 30, 2026); BSA Resolution 196-58-BZ at 1-2 (Sept. 10, 2019, corrected Dec. 27, 2019) (same), available at https://www.nyc.gov/assets/bsa/downloads/pdf/decisions/2019-34-BZ.pdf (last accessed Sept. 30, 2026); BSA Resolution 223-00-BZ at 2-3 (Apr. 30, 2019) (same), available at https://www.nyc.gov/assets/bsa/downloads/pdf/decisions/223-00-BZII.pdf (last accessed Sept. 30, 2026). This court exercises its discretion to take judicial notice of these municipal administrative determinations. (See Matter of 20 Fifth Ave., LLC v New York State Div. of Hous. & Community Renewal, 109 AD3d 159, 164 [1st Dept 2013]; Matter of LaSonde v Seabrook, 89 AD3d 132, 137 n 8 [1st Dept 2011].)

7.   This court's conclusion on this point is not altered by the fact that (as defendant points out, see NYSCEF No. 146 at 11, 16), BSA resolutions on educational-use variances have also recited that "an educational institution's application is to be permitted unless it can be shown to have an adverse effect upon the health, safety, or welfare of the community, and general concerns about traffic." (E.g. NYSCEF No. 139 at 4 [312-12-BZ].) The BSA resolutions submitted by defendant also recite that as educational institutions, the applicants are entitled to deference as to their "ability to rely upon programmatic needs in support of the subject variance application[s]." (Id. at 4 [312-12-BZ]; id. at 15 [310-13-BZ]; accord id. at 9 [58-11-BZ] [reciting that the applicant, as an educational institution, "may rely on its programmatic needs, which further its mission, as a basis for the requested waivers"].) Moreover, these resolutions' substantive consideration of the applications reflects the BSA's analysis of whether the applicants have sufficiently articulated and substantiated their claimed programmatic needs for the requested variances (and whether the requested variances are no broader than necessary), and the BSA's findings based on its analysis. (See id. at 4, 5 [312-12-BZ]; id. at 9-10, 12 [58-11-BZ]; id. at 15-16 [310-13-BZ].) On defendant's characterization of these resolutions, those analyses and findings would be superfluous. And the BSA's affording meaningful weight to showings of programmatic need cannot, as defendant suggests (NYSCEF No. 146 at 16), be reconciled with Cornell.

8.   Given the court's conclusion on this point, the court does not reach plaintiff's additional argument that the exclusion of college and university uses from the Special District lacks a rational basis.

Gerald Lebovits, J.