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Portions of Albany Zoning Ordinance Excluding Schools from Commercial Zone Held Unconstitutional

A court recently reversed a zoning board determination and held that sections of a city zoning ordinance which excluded schools from commercial districts was unconstitutional, because educational institutions enjoy special treatment regardless of what zoning district they seek to build in.

In Albany Preparatory Charter School v. City of Albany, the Appellate Division Third Department rejected the City of Albany’s attempt to distinguish cases relied upon by the School in the lower court decision. The Appellate Division held that general principals announced in earlier decisions apply “with equal force to areas zoned commercial as well as those zoned residential.” In so holding, the court noted that since educational institutions are “inherently beneficial,” they receive special treatment and are permitted to enter neighborhoods where nonconforming uses would otherwise not be allowed. The court further held that since an ordinance excluding educational uses from a zone deprives an applicant of any opportunity to demonstrate that its proposed educational use is consistent with the public good, provisions of the City of Albany Zoning Ordinance that cause an exclusion of educational uses from the commercial districts at issue are unconstitutional.

In his concurring opinion, Justice Spain wrote about his concern that the existing law does not support a holding that excluding private schools from non-residentially zoned districts can never be upheld, since the precedent only specifies that schools and churches should enjoy preferred treatment in residential districts.


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