Third Department Upholds ZBA Determination That Property Used By Church To House Homeless Qualified As A House Of Worship Under Zoning Code

Respondent Bethany Reformed Church (“Church”) owned property within zoning district R-1B, for single family medium density residencies, that was adjacent to Petitioner’s home.  Permitted uses include single family detached dwellings and houses of worship, defined by the Code of City of Albany 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, and based upon the apparent non-religious use, the Church 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 (“ZBA”), the ZBA found that the “proposed use is consistent with mission and actions of a house of worship,” and that no zoning exemptions were necessary. Petitioner filed an Article 78 proceeding to annul the Board’s determination. The Supreme Court granted the petitioner’s application, annulling the Board’s determination, and this Respondents appealed.

On appeal, the Appellate Division, Third Department noted the well-established standard that a ZBA’s interpretation of a zoning provision is afforded great deference, except where there is an issue of pure legal interpretation.  While the Court noted Respondents and the Supreme Court took different views on whether the issue was factual or legal, the Court determined that this issue did not affect the ultimately outcome, namely that the Board’s determination should be upheld under either standard.

While the term “house of worship” often is synonymous with a structure where formal, organized religious services take place, the Court recognized that “the courts of this [s]tate have been very flexible in their interpretation of religious uses under local zoning ordinances.” Noting that religious uses and activities are more than prayer and sacrifice, and that the concept of acts of charity as an essential part of religious worship is a central tenet of all major religion, “services to the homeless have been judicially recognized as religious conduct.”  Accordingly, the Court concluded that the plain and ordinary meaning of the term “house of worship” included the instant circumstances, reversed the decision of the Supreme Court, and reinstated the decision of the ZBA.

The case was Sullivan v Board of Zoning Appeals City of Albany, 144 A.D.3d 1480 (3d Dep’t 2016), leave to appeal denied, 29 N.Y.3d, 901 (2017).

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