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Homeless Shelter Operated by Church Complies With Zoning

The Appellate Division determined that a homeless shelter operated by a church complies with zoning that limited permitted uses to single family homes and houses of worship. In Matter of Sullivan v. The Board of Zoning Appeals of the City of Albany, the Appellate Division, Third Department, reversed the Supreme Court and held that operating a shelter for the homeless in a church parsonage meets the definition of house of worship, as a use permitted in the local zoning code.

The subject church and the Petitioner, who resides on an adjacent parcel, are in a zoning district permitting single family detached homes and houses of worship. A house of worship is defined in the zoning code as “[a] structure or part of a structure used for worship or religious ceremonies.” The term worship is not defined in the zoning code.  The church inquired of the City if providing housing for up to 14 homeless individuals in the parsonage, which shares a parcel with the church, would be permitted. An opinion was issued stating that the use is not permitted. The church appealed to the zoning board seeking an interpretation of the zoning code.

After holding hearings, the zoning board concluded that the proposed use is “consistent” with a house of worship. Petitioner then brought this article 78 proceeding challenging the determination. The Supreme Court concluded “the proposed use of the parsonage could not reasonably be interpreted as a ‘house of worship’ as such term is defined in the Code…”.

On appeal, the Appellate Division reversed the lower court and determined that the zoning board was correct in finding the use is compliant with the zoning code. The Court restated the well established rule that where, as here, a term is not defined any ambiguity is determined in favor of the property owner. The Court noted there is no claim that there will be religious ceremonies conducted in the space to be made available to the homeless. The Court therefore concluded: “our inquiry distills to whether the contemplated use of the parsonage falls within the ambit of ‘worship’ — a term not defined under the Code. According such term its plain or ordinary meaning, worship is broadly defined as ‘[a]ny form of religious devotion, ritual, or service showing reverence’ — especially with respect to ‘a divine being or supernatural power’ (Black’s Law Dictionary 1844 [10th ed 2014]) — and includes ‘an act of expressing such reverence’ (Merriam-Webster Online Dictionary, worship; see The Law Dictionary: Black’s Law Dictionary Free Online Legal Dictionary [2d ed], worship; see also Matter of Winterton Props., LLC v Town of Mamakating Zoning Bd. of Appeals, 132 AD3d at 1142).”

Following that definition the Court went on to hold:

“Indeed, it has long been recognized that ‘[a] church is more than merely an edifice affording people the opportunity to worship God. Strictly religious uses and activities are more than prayer and sacrifice and all churches recognize that the area of their responsibility is broader than leading the congregation in prayer. . . . To limit a church to being merely a house of prayer and sacrifice would, in a large degree, be depriving the church of the opportunity of enlarging, perpetuating and strengthening itself and the congregation’ (Matter of Community Synagogue v Bates, 1 NY2d 445, 453 [1956]; see Matter of Committee to Protect Overlook, Inc. v Town of Woodstock Zoning Bd. of Appeals, 24 AD3d at 1104). To that end, “[s]ervices to the homeless have been judicially recognized as religious conduct” (Fifth Ave. Presbyterian Church v City of New York, 2004 WL 2471406, *2 n 3, 2004 US Dist LEXIS 22185, *8 n 3 [SD NY, Oct. 29, 2004, No. 01-Civ-11493], affd 177 F Appx 198.”

The Court concluded that providing charity is part of religious worship.  Therefore, the Court held that the proposed use falls within the permitted use of a house of worship.

-Steven Silverberg

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