Posted by: Patricia Salkin | April 2, 2017

NY Appellate Court Upholds Zoning Board’s Determination that Housing for Homeless Met the Definition of House of Worship under City’s Zoning Code

Editor’s note: This blog entry was authored by Andrew Fillipazzi of Touro Law Center.

Bethany Reformed Church owned property adjacent to the petitioner’s property, both of which are located within zoning district R-1B, zoned for single family medium density residencies. In the R-1B district, the principal permitted uses are single family detached dwelling and houses of worship. The Code of City of Albany § 357-63(A)(1), (2) defines a house of worship as “a structure or part of a structure used for worship or religious ceremonies.” The church advised the City of its desire to partner with a not-for-profit corporation to establish a “home base” for up to 14 homeless individuals. The church inquired whether it needed a use variance to establish the home base. The church’s counsel was informed that a use variance and/or special use permit would be required. Following the church’s application and public hearings by the Board of Zoning Appeals, the Board found that the “proposed use is consistent with mission and actions of a house of worship,” and that no additional zoning exemptions were necessary. Petitioner Sullivan filed an action to annul the Board’s determination. The Supreme Court granted the petitioner’s application, annulling the Board’s determination, and this appeal followed.

The Appellate Division stated that a zoning board’s interpretation of a zoning law is afforded great deference and will only be disturbed if it is irrational, unreasonable, or where there is an issue of pure legal interpretation of the underlying zoning law. The court found that none of these reasons were present here and the Board’s determination should be upheld. Furthermore, the court cited to prior decisions that held services to the homeless were judicially recognized as religious conduct and the acts of charity are an essential part of religious worship. The Court reversed the decision below and reinstated the decision of the Zoning Board of Appeals.

Sullivan v Board of Zoning Appeals City of Albany, 144 A.D.3d 1480 (NYAD 3 Dept. 11/23/2016), leave to appeal denied 2017 WL 1094771 (NY 3/23/2017)

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