Posted by: Patricia Salkin | November 9, 2015

NY Appellate Court Holds that Mikvah was a Building Set Aside for Religious Devotion, and was a “Neighborhood Place Of Worship” Permitted in Zoning District

Petitioner was the owner of real property in the Town of Mamakating which had previously been used as a day spa. The petitioner proposes to convert the spa into use as a mikvah. The Town Building Inspector issued a written determination that the proposed use conformed with the definition of a neighborhood place of worship and was therefore a permitted use. Following approval of petitioner’s site plan by the Town Planning Board, respondents Michael Hassler and Beverly Martin sought review of the Building Inspector’s determination by respondent Town of Mamakating Zoning Board of Appeals. The ZBA reversed the determination of the Building Inspector, concluding that a mikvah did not constitute a neighborhood place of worship and disallowing petitioner’s proposed use. Petitioner then commenced a CPLR article 78 proceeding and action for a declaratory judgment seeking to annul the ZBA’s determination, but the Supreme Court dismissed the petition and granted costs, disbursements, and counsel fees to respondents. The petitioner then appealed.

Under Jewish Law, a mikvah must be built in a new community even before the construction of a synagogue. Petitioner’s submissions further showed that immersion in a mikvah is generally accompanied by the recitation of blessings or prayers. The court looked to ordinary dictionary meanings of “neighborhood place of worship” since it was not defined in the Town law. It found that this term referred to a building or location set aside in a certain area for any form of religious devotion, ritual or service showing reverence, especially for a divine being or supernatural power. While the ZBA imposed an additional requirement of communal worship in its interpretation, the terms of the ordinance did not support this requirement. Thus, the court found that the uncontroverted evidence established that a mikvah comports with the definition of a neighborhood place of worship and, thus, constituted the same for purposes of the Town’s zoning law. Accordingly, the court reversed the dismissal of the petition seeking to annul the determination of respondent Town of Mamakating Zoning Board of Appeals prohibiting petitioner’s proposed development plan, and declared that petitioner’s proposed mikvah is a neighborhood place of worship for purposes of the Town of Mamakating Zoning Code.

Winterton Properties, LLC v Town of Mamakating Zoning Board of Appeals, 2015 WL 6181319 (NYAD 3 Dept. 10/22/2015)


  1. This case really shows how broadly a town board can read a “neighborhood place of worship” to be. Further, this also shows how when a town law does not specifically define the terms in its laws, the board has discretion to interpret the law less rigidly.

    Here, the petitioners wanted to construct a mikvah in what used to be a day spa, and at first gained approval from the Town Planning Board. Then, respondents challenged the determination based on the fact that this was unlike the approval of a church or synagogue. Although this use of the property is a little different from the usual places of worships one would think would be in a community, the board has great discretion to allow or reject an applicant’s plan when the key terms are not explicitly defined in the law. Thus, because of this lack of a rigid definition, petitioners are able to pursue their plan to construct the mikvah in the community.

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