New York Botanical Garden v. Board of Standards

—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 intervenorrespondent’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 (NY City Zoning Resolution § 12-10 [b], [q]). Accordingly, the determination was properly confirmed (see, Matter of Toys "R" Us v Silva, 89 NY2d 411, 423; Matter of Khan v Zoning Bd. of Appeals, 87 NY2d 344, 351). Concur—Rosenberger, J. P., Ellerin, Nardelli and Tom, JJ.