Posted by: Patricia Salkin | July 22, 2013

NY Appellate Court Upholds BSA’s Interpretation That Proposed Homeless Shelter was a “Transient Hotel” Pursuant to the Zoning Resolution

Chelsea Business & Property Owners’ Association (“Chelsea”) challenged a determination by the Board of Standards and Appeals of the City of New York (“BSA”) affirming a determination of the Commissioner of the New York City Department of Buildings (“DOB”) denying Chelsea’s request to revoke permits and approvals issued to Bowery Residents’ Committee, Inc. (“BRC”) who wanted to convert and operate a 12–story building into a homeless shelter and offices. Chelsea asserted that the facility was not properly classified, under the Zoning Resolution, as a Use Group 5 “transient hotel.” This permitted the BRC to operate in the M1–6 light manufacturing zoning district where the building was located. Chelsea asserted that the proper classification for the facility was a Use Group 3 “non-profit institution with sleeping accommodations,” or in the alternative a Use Group 3 “health related facility.” These uses are prohibited in the M1–6 district. Chelsea also sought to enjoin the occupancy and operation of the BRC’s facility, which housed a 32–bed detoxification unit, a 96–bed reception center and a 200–bed homeless shelter, until compliance with all laws, rules and regulations could be established; to compel the City of New York to submit the proposed facility to Uniform Land Use Review Procedure (ULURP) for review; and to enjoin the operation of the proposed facility unless it is in compliance with the Administrative Code of City of N.Y. restriction on shelters exceeding 200 beds. The City Council of the City of New York was also in agreement that the facility did not comply with the Administrative Code’s restriction.

The trial court denied the petition and dismissed the proceeding. Chelsea appealed. The appellate court affirmed the lower court’s decision and held that (1) the BSA rationally determined that the proposed homeless shelter met the definition of “transient hotel” in the Zoning Resolution; (2) that review pursuant to the ULURP was not required; and (3) that the reception center and 200–bed shelter did not constitute a single homeless shelter for purposes of the Administrative Code restriction.

On the matter of the BSA determining that the proposed homeless shelter met the definition of “transient hotel” in the Zoning Resolution, the court held that the BSA and the DOB are responsible for administering and enforcing the zoning resolution, and that their interpretation must be given greater weight and judicial deference, as long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute. The court stated that the BSA rationally determined that the definition of “transient hotel” in the Zoning Resolution was clear and unambiguous and that the proposed use of the building met the three criteria of the definition, which stated (1) provides sleeping accommodations used primarily for transient occupancy; (2) has a common entrance to serve the sleeping accommodations; and (3) provides 24–hour desk service, housekeeping, telephone and laundry.

The court held that the lower court correctly determined that a ULURP review was not required. The municipal respondents did not have a lease or the equivalent of a lease of the building. It was also not evidenced that the contract between BRC and the Department of Homeless Services was part of an actual housing and urban renewal plan.

With respect to the reception center and 200–bed shelter not constituting a single homeless shelter for purposes of the Administrative Code, the court held that the lower court properly rejected Chelsea’s argument that the building operated in violation of the Administrative Code, but the lower court determined in error that the reception center and the 200–bed shelter constituted a single homeless shelter for purposes of the census limitation. The evidence showed that the reception center and the 200–bed shelter were separately operated and had separate budgets. Each program was separately licensed and operated pursuant to separate agreements with the Department of Homeless Services. The court held that even though they are located in the same building, they are “separately operated programs,” and should have been evaluated separately for compliance with the Administrative Code. The court held that even assuming a census in excess of 200 persons, the lower court had correctly determined that the building was permitted as a grandfathered shelter under the “Camp LaGuardia” exception to the Administrative Code’s restriction of the 200-bed limit.

Chelsea Business & Property Owners’ Association v. City of New York, 2013 WL 2396026 (NYAD 1 Dept.  6/4/2013)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad1/calendar/appsmots/2013/June/2013_06_04_dec.pdf


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