In opposing Crossroad Ventures, LLC’s (“Crossroad Ventures“) endeavor to construct a vacation resort partially within the Town of Shandaken, (“Town“), grassroots preservation organization Catskill Heritage Alliance, Inc. (“Alliance“) commenced two consecutive Article 78 proceedings challenging certain approvals.  The Court addressed multiple appeals from both proceedings in Catskill Heritage Alliance, Inc. v. Crossroads Ventures, LLC, et al., 161 A.D.3d 1413 (3d Dep’t 2018).  In its opinion, the Court reinforced the principle that a board of appeals is the sole interpreter of its ordinance and that interpretations by other boards or bodies may be fatal to municipal approvals and determinations.

In this case, the Town’s zoning ordinance allowed a resort with a special permit and site plan approval from the Town Planning Board (“Planning Board“).  However, the ordinance did not define “Vacation Resort.” In 2000, Crossroads Ventures requested an interpretation and definition of the term to determine what uses are allowed as part of a resort. The Town Zoning Board of Appeals (“Zoning Board“) responded to the request by analogizing a vacation resort to a hotel, motel or lodge development and determined the term included all uses integral to the hotel, motel or lodge development and clearly accessory to it, as well as other uses allowed in the area, either as of right or by permission. After receiving the interpretation, Crossroads Ventures undertook a prolonged environmental review and developed a plan for the resort: two hotels, a conference center, community centers and additional lodging scattered among several duplexes and multiple unit buildings.

In 2013, towards the end of its environmental review, Crossroads Ventures made an application to the Planning Board for a special permit and site plan approval. The Planning Board issued the special permit and conditionally approved the site plan. The Alliance commenced its first Article 78 proceeding challenging these determinations. The Supreme Court, Ulster County, issued a decision in October 2016 denying Crossroad Venture’s motion to dismiss and granting the Alliance’s petition, in part. The Court found that, although the Planning Board properly determined that non-habitational structures fell within the clear definition of permissible accessory uses to the resort, it improperly resolved an ambiguity in the ordinance as to whether detached duplexes and multiple unit buildings were permitted uses in the area. Accordingly, the Court annulled the determinations and remitted the matter to the Zoning Board to address the propriety of residential structures. The parties appealed the October 2016 decision.

On remittal, the Zoning Board interpreted the ordinance and clarified that detached residential units were permitted “lodges.” Thereafter, the Planning Board, again, granted Crossroads Ventures’ application, issued a special permit and conditionally approved the site plan. The Alliance commenced its second Article 78 proceeding challenging both the Zoning Board’s interpretation and the latest Planning Board approvals. The Supreme Court dismissed the petition by decision dated July 2017 and the Alliance appealed.

On appeal, the Appellate Division, Third Department, decided both appeals. With respect to the October 2016 decision, the appellate Court affirmed both the denial of the motion to dismiss and the granting of the petition, in part. The Court noted that zoning boards of appeals are the bodies with the authority to interpret ordinances – not planning boards. To the extent any ambiguities exist in the pertinent ordinance, a planning board must request an interpretation thereof from its board of appeals. In 2000, the Zoning Board interpreted the “Vacation Resort” term to include conference centers and community centers as integral, accessory uses, but it did not opine on detached duplexes and multiple-unit buildings. This was problematic because the latter structures are habitations and could be viewed either as permitted lodges or as new multifamily dwellings prohibited under the ordinance affecting the project area. The Planning Board should have requested another interpretation from the Zoning Board, rather than resolving the ambiguity itself. Therefore, the appeals Court affirmed the lower Court’s October 2016 decision to annul the Planning Board’s approvals for the resort and to remit the issue to the Zoning Board.

Next, the appeals Court reviewed the July 2017 decision. This later decision addressed both the Zoning Board’s interpretation of the duplexes and multiple-unit buildings and the Planning Board’s subsequent (second set of) approvals. The appeals Court found the Zoning Board’s interpretation deserved deference because it was not a purely legal interpretation – it was rendered upon the facts of Crossroads Ventures’ proposal. The Town ordinance defined “multiple dwellings” as structures within three or more dwelling units, but stated that rooms in a boardinghouse, dormitory, motel, inn or other similar building do not constitute dwelling units. Although the Town ordinance did not define the term “lodge,” the Zoning Board noted that a lodge is commonly defined as a transient residence, such as an inn or similar building having rooms that are excluded from the ordinance’s definition of dwelling unit. Ultimately, the permanence of residency was determinative.

The Zoning Board concluded that a lodge includes structures containing one or more units of lodging and sleeping accommodations for transient occupancy in connection with the special permitted use of a hotel, lodge development or vacation resort held under common ownership – so long as the users had primary residence elsewhere. And, the Zoning Board determined that the proposed structures at the resort were intended for transient occupancy, as rentals or timeshares; therefore, these were permitted lodges, as opposed to prohibited new multifamily dwellings. The Court found this interpretation to be rational. The Court also found that the Planning Board, relying upon the Zoning Board’s 2000 and 2017 valid interpretations, rationally determined to issue the special permit and conditional site plan approval for the resort. Therefore, the Court affirmed the July 2017 decision.

Note:  Law clerk Joanna Lima assisted in drafting this blog post.

Courts have recently expanded what constitutes religious conduct. In particular, in Matter of Sullivan v. Board of Zoning Appeals of City of Albany, 144 A.D. 3d 1480 (3d Dep’t 2016), an appellate court ruled that the use of a portion of a church parsonage for a “home base” for up to 14 homeless individuals was a permissible use of a “house of worship.”

Respondent Bethany Reformed Church owned certain real property, including a sanctuary, an educational and social building, a parsonage, and a parking lot, all of which were located adjacent to petitioner’s property. The properties were located in a residential district, which permitted, among other uses “houses of worship.” The Code of the City of Albany defined “houses 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 who were not attending school, enrolled in training programs or working at their current jobs. The City’s Building Department told the Church that it needed a use variance or special use permit as the proposed use did not appear to be for a religious purpose.   The Church then sought an interpretation from the Board of Zoning Appeals as to whether this intended use was permitted within the zoning district. The Board found that the Church’s intended use was consistent with “the mission and actions of a house of worship…” and did not require a variance or special use permit.  Petitioner brought a proceeding to annul the Board’s determination.

The Supreme Court, County of Albany, did not agree with the Board’s interpretation and annulled the Board’s decision, finding that the proposed use for the parsonage was not reasonably consistent with the term, “house of worship.” The Church appealed.  The Appellate Division reversed the decision of the Supreme Court, noting that, generally, “a zoning board’s interpretation of a zoning law [] is afforded great deference and will only be disturbed if it is irrational or unreasonable.”  An exception to this standard is where the issue is a pure legal interpretation of the zoning law.  Moreover, where a term is not defined by a zoning law, courts can apply the term’s ordinary meaning and that “any ambiguity in the language employed must be resolved in favor of the property owner.”

The Third Department first explained the rules applicable to judicial deference of municipal decisions, whether the issue presented was fact-based warranting judicial deference to the Board’s interpretation or a pure legal question excepting such deference.  Interestingly, the Appellate Division did not apply these rules in its reversal of the lower court.  The Appellate Division held that, regardless of the analytical approach, the Board’s interpretation should be upheld.  The Court noted that the term “worship” was not defined in the applicable zoning law, so the Appellate Division chose to use its ordinary meaning. The Court, relying on the dictionary meaning of the term, determined that the ordinary meaning of “worship” is defined as “any form of religious devotion, ritual, or service showing reverence – especially with respect to a divine being or supernatural power” and also includes “an act of expressing such reverence.” Noting that previous courts have been flexible in their interpretation of religious uses under zoning ordinances and did not limit religious uses solely to mean a house of prayer, the Court found that services to homeless individuals constitute religious conduct because acts of charity play a significant role in religious worship.