Abany Preparatory Charter School v. City of Albany

Mugglin, J. Appeal from a judgment of the Supreme Court (Spargo, J.), entered November 30, 2005 in Albany County, which, inter alia, granted petitioners’ application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to annul a determination of respondent City of Albany Board of Zoning Appeals denying petitioners’ request for a use variance, area variances and a parking lot permit to construct and operate a charter school. Petitioners’ property at 30 Watervliet Avenue in the City of Albany was, for 70 years prior to its conversion to commercial office space, used as Public School No. 3. Petitioners’ current plans for this property include reconverting the existing building and constructing an addition thereto for school purposes. The property is located half in a C-l neighborhood commercial zone and half in a C-2 highway commercial zone. The zoning ordinance does not list a school as an allowable principle, accessory or special permit use in either district. Petitioners’ application for conversion back to school purposes was denied and petitioners applied to respondent City of Albany Board of Zoning Appeals (hereinafter BZA) for a use variance, area variances and a parking lot permit. The BZA denied the variances, finding essentially that petitioners failed to demonstrate either need or hardship which was not self-created. Petitioners commenced this combined proceeding pursuant to [871] CPLR article 78 and action for declaratory judgment challenging the BZA’s determination as arbitrary and capricious and seeking a declaration that the provisions of the City of Albany Zoning Ordinance, which excluded schools in commercial zones, were unconstitutional on their face or as applied. Supreme Court converted respondents’ motion to dismiss for failure to state a cause of action to a summary judgment motion and declared the pertinent provisions of the zoning ordinance to be unconstitutional on their face and as applied. Further, Supreme Court declared the BZA’s denial of the requested variances and parking lot permit to be arbitrary and capricious and directed the issuance of a special permit for the use of the property as a school. Respondents appeal and allege that Supreme Court improperly relied on Cornell Univ. v Bagnardi (68 NY2d 583 [1986]) and Trustees of Union Coll. in Town of Schenectady in State of N.Y. v Members of Schenectady City Council (91 NY2d 161 [1997]) because the former involved the educational use of property in a residential zone and the latter involved the educational use of property in a residential historic zone, not a commercial zone as is here involved. We disagree, finding that the general principles enunciated in those cases apply with equal force to areas zoned commercial as well as those zoned residential. As therein pointed out, because of their inherently beneficial nature, educational institutions enjoy special treatment and are allowed to expand into neighborhoods where nonconforming uses would otherwise not be allowed. An ordinance which excludes educational uses from a zone deprives an applicant of any opportunity to demonstrate that its proposed educational use is consistent with the public good (see Trustees of Union Coll. v Members of Schenectady City Council, 230 AD2d 17, 21 [1997], affd 91 NY2d 161 [1997]). Accordingly, we agree with Supreme Court that the provisions of the City of Albany Zoning Ordinance that result in a wholesale exclusion of educational uses from the commercial districts in question are unconstitutional on their face. Notwithstanding the foregoing analysis, we must reject Supreme Court’s conclusion that petitioners are entitled to the issuance of a special permit. By so doing, the court stripped the BZA of its ability to engage in the deliberative process and to evaluate the proposed educational use against other legitimate interests which impact the public welfare. An educational use does not enjoy a conclusive presumption that it automatically outweighs its ill effects (see Cornell Univ. v Bagnardi, supra at 595). A special permit application should be submitted to the [872] BZA so that agency may engage in the requisite balancing to determine whether a special permit should, in fact, issue and, if so, whether reasonable conditions should be imposed that would mitigate any deleterious effects on the community. Reasonable conditions directly related to the public’s health, safety and welfare may be imposed consistent with the exercise of the municipal police power (see id. at 596). Cardona, EJ., Carpinello and Lahtinen, JJ., concur.