Code Blue shelter debated in lawsuit against Gloversville


Court documents filed by both sides in the Free Methodist Church of Gloversville’s Article 78 lawsuit against the city of Gloversville show the case will likely come down to whether prior court decisions in other jurisdictions grant the city’s Zoning Board of Appeals the discretion to prohibit a “Code Blue Temporary shelter,” even though the city code in 2020 never mentioned the term.

The lawsuit was first filed in Fulton County Supreme Court on Feb. 15, 2021 by Rev. Richard Wilkinson, leader of the Free Methodist Church, through his attorney Ben McGuire, against the Gloversville Zoning Board of Appeals, city building inspector David Fox and the city of Gloversville itself.

“(The Gloversville ZBA’s) final determination should be annulled for being irrational, unreasonable, arbitrary and capricious and (the Free Methodist Church of Gloversville’s) application to create a Code Blue Shelter at the subject premises should be granted in its entirety,” McGuire wrote in court documents filed April 22.

McGuire on Friday said oral arguments were recently concluded in the case, and both sides are now awaiting a ruling from the judge assigned to it, Warren County Supreme Court Judge Martin D. Auffredou.

The church’s lawsuit seeks to reverse the city ZBA’s Jan. 22, 2021 “Final Letter of Determination” which denied the church’s application to establish a Code Blue Temporary homeless shelter at the site of the former YWCA at 33 Bleecker St., upholding Fox’s Oct. 21, 2020 determination that a Code Blue Shelter is not an acceptable use in a “Commercial district and in the Form Based Overlay District.”

Gloversville ZBA Chairman Jeffrey Ashe explained in the final determination letter that Gloversville’s city code in 2020 did not provide a “use definition” that described a Code Blue Shelter, defined by state law as “a walk-in, emergency homeless shelter that provides a hot meal and a safe place to sleep when temperatures in the city dip below 32 degrees.”

“[The] definition of Rooming House, although the closest, was inadequate to fully describe the proposed use,” wrote Ashe. “Our review of (the city code) found that the ‘change in use of any building that does not require exterior renovations’ was subject to Special Use Permit in the C-Commercial Zone. Our further review … concluded that the (Form Based Overlay District) does not contemplate the Code Blue Shelter use and that a ‘change in use’ as prescribed in (the city code) implies a change in use to only another presently allowable use. The ZBA determined a use variance would be required to move forward with this application.”

McGuire, of the Gloversville law firm Wood, Seward & McGuire, has argued on behalf of the church that the Gloversville ZBA was wrong in its decision precisely because the city code in 2020 did not include any language specifically prohibiting a Code Blue temporary shelter.

“When it comes to the use of real property and/or the regulation thereof, New York
Courts do appear to favor the common law principle of the freedom of use of land and any restrictions thereof must be specifically set forth in order to put the public on notice,” McGuire wrote. “That means not only must the zoning ordinance be specific as to the permitted and prohibited uses within the various districts, the Zoning Code must also provide specific provisions authorizing the ZBA to interpret the Code.”

McGuire has argued Gloversville’s city code fails to “include any specific provisions allowing for the interpretation of the Code as commonly seen in the zoning codes of other municipalities.”

“In particular, the City of Gloversville Zoning Code does not provide any provisions which allow for the interpretation of ambiguous terms or to allow the Board to give terms their ordinary meaning,” wrote McGuire. “In addition, and upon information and belief, the City of Gloversville Code also does not contain any provisions which state that any unlisted uses or terms are either considered permitted or prohibited as commonly seen in the Codes of other municipalities.”

Attorney Andrew J. Leja, of the Albany law firm Barclay Damon, is representing the Gloversville ZBA, Fox and the city.

Leja filed objections to the arguments made by McGuire on Feb. 16, 2022. Leja argues that prior rulings in other legal cases in New York state have developed case law that shows “It is well settled that the interpretation by a zoning board of its governing code is generally entitled to great deference by the courts”, and that Warren County Supreme Court Judge Auffredou is obligated to uphold the ZBA’s determination because other court rulings have show that “even if the reviewing court might have decided the matter differently [therefore] a reviewing court may not substitute its own judgment for that of the agency.”

Leja has argued that in order for McGuire and the church to show the city ZBA’s ruling was unreasonable it has to show it lacked any rational basis. He argued the record of the proceeding shows the ZBA board carefully considered the city code with evidence included in the record. He argued the ZBA’s process was rational. He said the ZBA determined the Code Blue shelter did not fit accurately any of the code’s defined terms “club or lodge, community health service center, conference center, daycare center for adults, health care facility, hospital, hotel, motel, nursing or convalescent home, or rooming house” they also considered whether it fit the definition of a “dwelling unit” or mixed use.”

“Examining the legislative intent behind the 2018 Code amendment, the ZBA determined that the Common Council’s specific removal of ‘rooming house’ from the list of specially permitted uses indicated a deliberate intent to exclude rooming houses and similar uses from the Commercial District and downtown area, which included the Property,” wrote Leja.

Leja argued that it was a local court case, “Gloversville Androme Leather Corp. V. City of Gloversville” in 2003 where the court ruled in favor of the ZBA, in part, because the court found “unpersuasive the petitioner’s argument that its use was permitted because it was not expressly prohibited.”

“It would be impossible for the Gloversville City Council to construct an all-encompassing list of every possible prohibited use in every zoning district within the City, because such uses would literally number in the tens or hundreds of thousands. Indeed, such an impractical, all-encompassing list of every possible prohibited use in every zoning district within the City, because such uses would literally number in the tens or hundreds of thousands,” wrote Leja. “Indeed, such an impractical, all-encompassing piece of zoning legislation would clearly fit (Lavender v ZBA of the Town of Bolton’s) noted exception to rule strictly construing zoning ordinances in favor of the property owner.”

McGuire argued Leja is misapplying the ruling in Gloversville Androme Leather Corp. V. City of Gloversville, because in that case the court ruled that one of the city’s zones allowed for the use Androme was seeking, which by default prohibited that use in the city’s other zones, even though the prohibition was not expressly stated in the code. He said the difference in the Free Methodist Church of Gloversville’s case is that a Code Blue shelter at the time of the church’s application was not “comprehended” in any part of Gloverville.

“Where a ‘proposed use’ was neither comprehended nor contained within any of the provisions or definitions under the Code, then in that situation, the proposed use should be allowed so long as the use conforms with the character of the neighborhood,” argued McGuire.

McGuire and the Free Methodist Church of Gloversville have also argued the ZBA’s decision to deny the church’s application for a Code Blue Temporary shelter was also a violation of the federal “Religious Land Use and Institutionalized Persons Act” (RLUIPA), which states “No government shall oppose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly or institution is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.”

Leja in his Feb. 16 court filing attempted to knock down the RLUIPA argument in several ways. He said the New York state county supreme court has no jurisdiction over the federal statue and that the church is too late in tryng to assert the federal law as its reason for obtaining a permanent certificate of occupancy for a Code Blue shelter at 33 Bleecker St.

“As an additional threshold issue there is no evidence in the record that church argued a possible violation of that federal statute before the ZBA,” wrote Leja. “So, the Petitioner is precluded from mounting those claims in this proceeding.”

Leja also argued that even if the RLUIPA were applied to this case the ZBA’s decision does not impose a substantial burden on the church and that the Code Blue Shelter does not qualify as a religious exercise under RLUIP, in part “because it occurs at a location separate and distinct from the Petitioner’s worship site.”

McGuire in his rebuttal argued that state courts are empowered to review and enforce federal law when making decisions, “Because the Federal Statute and this matter do not directly involve either Constitutional questions or Diversity of the parties, upon information and belief this Court does have authority as well as jurisdiction to hear this matter.”

Neither McGuire nor Leja in their respective court briefs referenced in any way the original executive order from Gov. Andrew Cuomo in 2016, which first mandated that Code Blue temporary shelter’s can be established on nights when the temperature goes below 32 degrees. Cuomo’s Code Blue executive order states it supersedes “all local laws, as well as any local directives, guidance, or policies to the contrary.”









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