## Facts

- Fordham University operated WFUV, a noncommercial educational radio station used in its communications curriculum, on its Rose Hill campus in the Bronx, located in an R6 zoning district and bordering the New York Botanical Garden (NYBG).
- In 1993, Fordham obtained a Department of Buildings (DOB) permit to construct a one-story transmitting building and a 480-foot radio tower near the campus’s eastern border adjacent to NYBG.
- Fordham characterized the facility as an “accessory use” to the campus’s principal educational use under NYC Zoning Resolution (ZR) § 12-10, and the DOB agreed.
- NYBG objected, arguing the project’s size, power, and alleged quasi-commercial character made it incompatible with “accessory use” status.
- On NYBG’s administrative appeal, the New York City Board of Standards and Appeals (BSA), after two public hearings and review of submissions, unanimously affirmed the DOB’s determination.
- NYBG filed an Article 78 proceeding; the trial court dismissed the petition, and the Appellate Division unanimously affirmed.

## Issues

1. Whether, on Article 78 review, the BSA acted arbitrarily, capriciously, or contrary to law in determining that Fordham’s radio building and 480-foot tower qualified as an “accessory use” under ZR § 12-10.

## Decision

- The New York Court of Appeals affirmed the Appellate Division, leaving the BSA determination and DOB permit in place.
- The court held that BSA’s interpretation and application of ZR § 12-10 to Fordham’s broadcasting facility had a rational basis and was not arbitrary or capricious.
- The court accepted BSA’s conclusion that the facility was incidental to, customarily found in connection with, and subordinate to Fordham’s principal educational use.

## Legal Principles

- In an Article 78 challenge, a court reviews whether the agency determination has a rational basis and is not arbitrary or capricious; the court does not decide the zoning question de novo.
- Substantial deference is given to the BSA’s interpretation of ambiguous zoning terms because of its land-use expertise, so long as the interpretation is not irrational or unreasonable.
- Under ZR § 12-10, “accessory use” is evaluated functionally: whether the use is clearly incidental to and customarily found in connection with the principal use, located on the same zoning lot, and subordinate in extent.
- “Customarily found in connection with” does not require that most institutions have identical facilities; it is sufficient that the use is reasonably associated with the type of principal use.
- A use’s large scale or technological capacity does not alone defeat accessory status if the record supports that it remains subordinate to the principal use in the context of the entire site and is connected to the principal mission.

## Conclusion

The Court of Appeals upheld the BSA’s approval of Fordham’s radio transmitting building and 480-foot tower as an accessory use to an educational institution, emphasizing deferential Article 78 review and the agency’s rational, record-supported interpretation of the zoning definition of “accessory use.”


Matter of N.Y. Botanical Garden v. Bd. of Standards & Appeals, 91 N.Y.2d 413 (1998)