(dissenting). I am unable to agree with the majority that the City of Ithaca Zoning Ordinance must be declared invalid and thus unconstitutional.
Plaintiff university’s large campus is located in the City of Ithaca and generally bounded by two large gorges: Fall Creek on the north and Cascadilla Creek on the south. To the north of the campus and on the opposite side of Fall Creek gorge is an area known as “Cornell Heights”. Over the years, plaintiff has acquired numerous residential properties in Cornell Heights for use by its students, faculty and other of its staff members.
A portion of Cornell Heights is designated residential, R-2a (City of Ithaca Zoning Ordinance § 30.25). Permitted uses in a R-2a district as of right include: (1) one-family and two-family dwellings; (2) church and related buildings; (3) public park or playground; and (4) library, public or parochial school, and fire station. The area may also be used as a private school upon grant of a special permit (ibid.). Section 30.3 (78) of the ordinance defines “school” as a “public, private or church-affiliated establishment academically below the college level, for the education of children and for adults in subjects or skills”.
The remaining area of Cornell Heights is designated an R-U district, which permits, inter alia, “fraternity, sorority or group house” and “dormitory” uses (City of Ithaca Zoning Ordinance § 30.25). The R-U district is apparently a result of a 1977 amendment to the ordinance that enlarged the P-1 district, *404which allows as of right higher education uses, and reclassified part of the R-2a district to an R-U district. Plaintiff’s campus is zoned P-1.
In 1965, plaintiff acquired the subject house located at 316 Fall Creek Drive in the Cornell Heights area of the city. This property is within the R-2a zone and has been in such district since 1950. Plaintiff has used the property for residential purposes except for a period in 1978 and 1979 when it was used by plaintiff for admission purposes, albeit in violation of the ordinance. In 1982, plaintiff decided it wanted to use the building to house its Modern Indonesia Project (hereinafter project). After its request for a certificate of occupancy was denied on the ground that its proposed use was not a permitted use in the R-2a zone, plaintiff applied to the Board of Zoning Appeals for a use and area variance. After a public hearing, the Board denied plaintiff’s request for a use variance, concluding (1) that the evidence did not support plaintiff’s claim of economic hardship or that no housing market existed which would yield plaintiff a fair return, and (2) that granting the use variance would damage the character of the neighborhood. Having reached the above determination, the Board did not consider plaintiff’s request for an area variance. The instant action ensued.
Trial Term held a trial and concluded, inter alia, that the ordinance was void and ineffective as applied to plaintiff. Trial Term found, as a matter of fact, that plaintiff had established its need to expand and that the denial created an economic hardship for plaintiff. This appeal followed.
Plaintiff does not seriously contend that the ordinance is unconstitutional on its face, although it alleges such in its complaint. In any event, a review of the record reveals that plaintiff has not overcome the strong presumption of the ordinance’s validity by offering evidence that it is unconstitutional beyond a reasonable doubt (see, Town of Huntington v Park Shore Country Day Camp, 47 NY2d 61, 65).
The residential district here at issue was developed according to a comprehensive plan (City of Ithaca Zoning Ordinance § 30.25; see, Ithaca, N.Y.: A General Plan, City Planning Board [1971]). The ordinance was designed “to promote public health, safety, welfare and the most desirable use of land and to conserve the value of buildings and enhance the value and appearance of land throughout the City” (City of Ithaca Zoning Ordinance § 30.2). It is beyond question that these stated objectives may be the subject of a legitimate exercise of police power (see, *405e.g., Matter of New York Inst. of Technology v Le Boutillier, 33 NY2d 125, 131; Rodgers v Village of Tarrytown, 302 NY 115, 121-122).
Nor does permitting one type of use but disallowing another (i.e., permitting secondary schools as of right) create constitutional infirmities since the zoning here was not accomplished for the advantage of a particular owner, but “pursuant to a comprehensive plan for the general welfare of the community” (Rodgers v Village of Tarrytown, supra, p 124). Moreover, I am unable to agree with the majority that the distinction here between educational uses at or below the college level lacks a rational basis (see, Ann., 64 ALR3d 1138, 1146-47 [1975]).
Furthermore, I respectfully disagree with the majority’s conclusion that conditioning the issuance of a variance upon a showing of hardship here is unreasonable and thus unconstitutional. In a strikingly similar case, the Court of Appeals found no such problem (Matter of Hickox v Griffin, 298 NY 365).
The college has failed to establish in this case that the decision of the Board of Zoning Appeals was arbitrary or unreasonable (see, Matter of New York Inst. of Technology v Le Boutillier, supra). While the evidence supports Trial Term’s findings that the building currently housing the project was decrepit and that the project requires proximity to the central campus, it does not support a finding that the denial of the use variance would create a hardship for plaintiff or that there are no facilities available on the present campus which would serve the project’s needs (cf. Matter of New York Inst. of Technology v Le Boutillier, supra).
At the public hearing, plaintiff’s employees testified to the effect that plaintiff was unable to rent or sell the premises for a fair return. They further testified that costs of heat and renovation were prohibitive. Further testimony, however, revealed that plaintiff never attempted to sell the premises, did not seriously attempt to rent the premises and, in fact, refused to sell or rent. Furthermore, it was indicated at the public hearing that plaintiff had available land but did not want to dedicate it for the project and that, to the extent plaintiff suffered a hardship, it was similar to that of the residents generally. Moreover, plaintiff made no showing of need at the administrative level.
Plaintiff failed to demonstrate hardship at trial and, in any event, the evidence adduced thereat was insufficient to support plaintiff’s claim of a need to expand (see, Matter of New York Inst. of Technology v Le Boutillier, supra, p 132). Most strikingly, plaintiff’s analysis was performed solely for the purpose of *406this litigation, not to support its application for a variance. In addition, the analysis was wholly incomplete insofar as it did not consider whether the new construction on campus could house the project, no study was performed to determine cost relative to construction of facilities to house the project, although land was available, and it did not consider all vacant buildings and land. Indeed, although the space needs of the College of Arts and Sciences, with which the project was associated, were being addressed, no consideration was given to the project. The short of the matter is that plaintiff has planned to spend $10 million on new construction on campus, yet contends that it has a need to use the subject property, which contains only 3,100 of the 5,500 square feet required for the project.
Having failed to demonstrate need, plaintiff is subject to the factors which justify denial of a variance or special permit (Matter of New York Inst. of Technology v Le Boutillier, supra, at pp 131, 133; Matter of Hickox v Griffin, 298 NY 365, supra), particularly those factors associated with both. Here, like in Le Boutillier, the city has adopted a comprehensive plan. Approval of plaintiff’s application would constitute a substantial departure from that plan (see, City of Ithaca Zoning Ordinance § 30.25). The property is located across a large gorge in a residential district. Approval of plaintiff’s application would negate city planning objectives of keeping college uses primarily within a P-1 district, an area buffered by two large gorges, thereby minimizing the impact on area residents. Approval would also create traffic hazards and parking problems, in addition to damaging the control of city growth (see, 2 Anderson, New York Zoning Law and Practice §§ 23.29, 24.21 [3d ed 1984]).
Finally, it seems evident that the City of Ithaca, containing parts of two college campuses (i.e., plaintiff and Ithaca College) which occupy substantial acreage in the city, is not practicing exclusionary or insulary zoning (cf. Long Is. Univ. v Tappan, 202 Misc 956, 960, affd 281 App Div 771, affd 305 NY 893). Far from having such a policy, the city has enlarged the P-1 district, used primarily for higher educational purposes, and rezoned part of the Cornell Heights residential district (R-2a) to an R-U district to accommodate plaintiff’s use for fraternities, sororities and the like. The above are legitimate considerations, since plaintiff has failed to demonstrate need (see, 1 Anderson, New York Zoning Law and Practice § 11.13, at 549 [3d ed 1984]). They also represent substantial evidence to sustain the constitutionality of the ordinance’s application to plaintiff and the reasonableness of the Board of Zoning Appeals determination (see, Matter of *407New York Inst. of Technology v Le Boutillier, supra, p 133; cf. Matter of Hickox v Griffin, 298 NY 365, supra). Accordingly, the judgment of Trial Term should be reversed.
Mahoney, P. J., Weiss and Levine, JJ., concur with Casey, J.; Kane, J., dissents and votes to reverse in an opinion.
Judgment modified, on the law, without costs, by deleting the first three decretal paragraphs thereof and substituting therefor (1) a provision declaring invalid the City of Ithaca Zoning Ordinance insofar as it requires the issuance of a variance for plaintiff’s proposed expansion of an educational use into the Cornell Heights area of the City of Ithaca and conditions the issuance of such variance upon a showing of hardship, and (2) a provision converting the remainder of the action to a CPLR article 78 proceeding; determination of respondent Board of Zoning Appeals dated August 2, 1982 annulled and matter remitted to respondent Board of Zoning Appeals for further proceedings not inconsistent herewith; and, as so modified, affirmed.