Matter of Albany Basketball & Sports Corp. v City of Albany

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[*1] Matter of Albany Basketball & Sports Corp. v City of Albany 2013 NY Slip Op 23168 Decided on May 20, 2013 Supreme Court, Albany County Lynch, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 20, 2013
Supreme Court, Albany County

Matter of the application of, Albany Basketball & Sports Corporation D/B/A WASHINGTON AVENUE ARMORY, Petitioners,


City of Albany, CITY OF ALBANY BOARD OF ZONING APPEALS and JEFFREY JAMISON, in his official capacity as the Commissioner of the City of Albany Division of Building & Regulatory Compliance, Defendants.



(Gregory J. Teresi, Esq.)

Attorney for Petitioners

90 State Street

Albany, New York 12207Of Counel:


(John D. Hoggan, Jr., Esq.)

Attorney for Petitioners

90 State Street

Albany, New York 12206


(Eric Sugar, Esq., of Counsel)

Attorney for Respondents

City Hall

Albany, New York 12207

Michael C. Lynch, J.

This CPLR Article 78 proceeding was commenced by Order to Show Cause (Lynch, J.) dated March 26, 2013, and returnable April 30, 2013, to annul a March 13, 2013 Decision of the City of Albany Board of Zoning Appeals (BZA) interpreting the term "auditoria" under section 375-12 of the Zoning Ordinance.[FN1] The background for this dispute is outlined in the Court's Decision and Order (Lynch, J.) issued on March 26, 2013 (Index No.1505-15 - hereinafter Armory 1; and the Court's Decision and Order (Lynch, J.) issued on March 28, 2013 granting petitioner's application for a stay pending a resolution of this proceeding.As previously noted, it is undisputed that the Armory is situate in a C-O District in which an "auditoria" is a principally permitted use. Notably, the Code does not include a definition of the term "Auditoria". Oral argument was held on May 16, 2013.

As a threshold point, this Court adheres to its decision in Armory 1 that the BZA had jurisdiction to render the March 13, 2013 determination.

In the challenged March 13, 2013 decision, the BZA resolved petitioner's December 13, 2012 application as follows:

"Therefore, the Board interprets the meaning of an "Auditoria"

by its plain definition and in accordance with its prior 2003 interpretation.

An "Auditoria" is a part of a building where an audience sits or a room, hall

or building used for gatherings, which includes activities such as sporting

events and concerts that involve actual fixed seating for the persons attending.

Furthermore, the Board finds that the use of the facility for a "Rave" party,

nightclub, dance club or other similar event is excluded from the definition of

an "Auditoria", and thus an illegal use in a C-O Zoning District" (see Exhibit

"J" annexed to the Petition.

Petitioner challenges this interpretation as irrational and contrary to the BZA's 2003 determination authorizing the use of the Armory as a concert venue without restrictions as to seating. Petitioner emphasizes that the Armory has been [*2]utilized for general assembly purposes since the 2003 approval, including general admission concerts.

A zoning board's interpretation of its own ordinance is entitled to considerable deference and will be upheld unless it is irrational or unreasonable (see Matter of Letourneau v. Town of Berne, 89 AD3d 1202; Matter of Smelyansky v. Zoning Board of Appeals of the Town of Bethlehem, 83 AD3d 1267, 1268-1269; Matter of Granger Group, et al. v. Town of Taghkanic, et al., 77 AD3d 1137, 1141; Matter of Ohrenstein v. Zoning Board of Appeals of the Town of Canaan, 39 AD3d 1041). Where the dispute involves a matter of pure legal interpretation of a zoning ordinance deference is not required (Matter of Atkinson v. Witt, 94 AD3d 1218, 1219-1220). Since zoning regulations are in derogation of the common law, they are strictly construed against the enforcing municipality and any ambiguity is resolved in favor of the property owner (Id.).

This Court agrees with petitioner's observation that what is really at issue here is the use of the Armory for certain musical events, that involve general admission and a large dance area. The Court does not, however, find support for petitioner's contention that the challenged decision is a content-based restriction. By its terms, the decision is expressly focused on the event's activities, not the content of the music.

The question presented is whether the disputed concert/dance events being held at the Armory fit within the definition of "Auditoria". Contrary to the petitioner's thesis, the 2003 board decision was not a broad based approval of any general assembly concert. By its terms, that determination confirmed that "Auditoria" embraced the use of the Armory as a concert venue based on the representation that 5,000 seats would be provided. Moreover, it was reasonable for the BZA to rely upon a dictionary definition of an "auditorium" as a concert venue "in which the audience sits" (see Rozner v. Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479-480). Further, it is important to recognize that the Code includes separate "nightclub" and "dance club" definitions that speak to venues that provide both live and/or recorded musical entertainment and dancing.

Given these distinctions, the Court finds that the BZA's interpretation of "Auditoria" as embracing a traditional concert involving fixed seating, but not the hybrid musical/dance events at issue is not irrational.

That the Armory is utilized for other general assembly events that do not involve fixed seating does not compel a contrary result. As reflected in the 2007 special use permit, the BZA has authorized certain uses of the Armory, for example, trade shows and flea markets, that certainly involve general admission [*3]without fixed seating. That authorization, however, does not determine whether the events at issue qualify as a concert within the scope of the permitted "auditoria" use.

Moreover, the Court agrees with respondents that petitioner's reliance on section 202 of the NYS Existing Building Code is misplaced. That provision defines a "nightclub" as a facility with live or recorded music "and at least 20 percent of the subject assembly space is for concentrated occupancy, with or without fixed seating" (see Petition Exhibit "L"). Here, petitioner emphasizes that the Armory's dance area is only about 10% of the main concert hall and thus not a "nightclub" as defined in the State Code. The question here, however, is whether the BZA rationally defined the type of concert event embraced within the permitted "auditoria" use, not whether the Armory has been converted into a nightclub.

Accordingly, the petition is dismissed, without costs.

This memorandum represents the Decision and Order of this Court. The original Decision and Order is being mailed to the attorney for respondents. The original papers are being sent to the AlbanyCounty Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220.

Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

DATED:May, 2013

Albany, New York


Hon. Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Order to Show Cause (Lynch, J.) returnable April 30, 2013, with Verified Petition

dated March 26, 2013, and Exhibits "A" - "L"; Affirmation of Gregory J. Teresi,

Esq. dated March 25, 2013, with Exhibits "1" - "4"; Affidavit of Michael Corts,

dated March 27, 2013; Supplemental Affidavit of Gregory Teresi dated March 13,


2.Respondents' Verified Answer dated April 25, 2013; Affirmation of Eric Sugar,

Esq. dated April 25, 2013, with Exhibits "A" - "E"; Affidavit of Jeffrey Jamison [*4]

dated April 25, 2013; Respondents' Administrative Record filed April 25, 2013;

Respondents' Memorandum of Law dated April 25, 2013; Affirmation in

Opposition of Eric Sugar, Esq. dated March 28, 2013, with Exhibits "A" - "F";

3.Reply Affirmation of Gregory Teresi, Esq. dated April 29, 2013, with Exhibits

"A" - "C"; Reply Memorandum of Law dated April 29, 2013; and

4.May 10, 2013 Letter Order of the Court; May 13, 2013 letter response from

Attorney Sugar; and May 10, 2013 Affidavit of Bradley Glass. Footnotes

Footnote 1:While petitioner has raised a challenge to respondents' Administrative Record on Appeal, the Court is satisfied with respondents' explanation as set forth in the responding letter of Attorney Sugar dated May 13, 2013, and Affidavit of Bradley R. Glass dated May 10, 2013. These submittals confirm that the record includes both the records considered by the Board and a transcript of the Board's proceeding. The additional background materials identified in Attorney Teresi's Reply Affirmation have been annexed to the petition or included in earlier affidavits submitted to the Court. All of these submissions have been considered by the Court, as set forth in the "Papers Considered" listed at the end of this Decision and Order. The Court is satisfied that respondents have complied with CPLR 7804[e].