NY Appellate Court Affirms Denial of Building Permit Finding it Did not Qualify for Preferential Treatment as a Religious or Educational Use

This post was authored by Amy Lavine, Esq.

A New York appellate court held in 2021 that a Jewish day school and summer camp did not qualify for preferential zoning treatment as a religious or educational use.

The petitioner, Sid Jacobson Jewish Community Center, owned property in the Village of Brookville in an R-5 zoning district. In addition to detached single-family dwellings, the R-5 district also allowed various conditional uses, including “nonresidential uses which may not be excluded pursuant to the state and federal laws.” The JCC operated a day school and camp on its property and in 2014 it applied for a building permit to expand its facilities and widen the existing driveway to its property. The zoning board denied its application, however, based on a determination that the JCC’s use of the property was not a conditional use permitted in the R-5 district and that the proposed use would be detrimental to the neighborhood.

The court agreed with the zoning board that the JCC’s use of its property did not qualify as either a religious or educational use that would be entitled to deferential zoning treatment. The court first explained that even though “the JCC is a religious organization, the evidence presented to the ZBA supports its determination that the activities and programs offered at the Day School and Camp are standard recreational activities that are offered at any summer camp.” The court similarly found that the JCC’s use of the property was recreational, rather than academic in nature. As it observed, “the evidence in the record established that the camp is operated under a children’s camp permit issued by the Nassau County Department of Health, and the activities offered are predominantly athletic and recreational in nature, eg, sports, swimming, horseback riding , and diving. Further, no evidence was presented to demonstrate that the staff employed by the camp are qualified to instruct in subjects which are part of a regular school curriculum.” The court also upheld the zoning board’s determination that the JCC’s proposed use would be detrimental to the neighborhood. As the court explained, this finding was supported by “specific, detailed testimony” from adjoining property owners that was based on their “personal knowledge,” and this it was not solely based on “subjective considerations such as general community opposition.”

Matter of Sid Jacobson Jewish Community Ctr., Inc. v Zoning Bd. of Appeals of the Inc. villa. of Brookville, 192 AD3d 693 (NY App Div 2d Dept 3/3/21).