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SUPPORT MINISTRIES FOR PERSONS WITH AIDS

July 30, 1992

SUPPORT MINISTRIES FOR PERSONS WITH AIDS, INC., et al., Plaintiffs,
v.
VILLAGE OF WATERFORD, NEW YORK, et al., Defendants.


SMITH, JR.


The opinion of the court was delivered by: RALPH W. SMITH, JR.

U.S. Magistrate Judge

 MEMORANDUM-DECISION AND ORDER

 This matter was referred to the undersigned on June 23, 1992, by the Honorable Frederick J. Scullin, Jr., U.S. District Judge, for all further proceedings and the entry of judgment in accordance with 28 U.S.C. ┬ž 636(c) and upon consent of the parties.

 I. BACKGROUND

 Plaintiff Support Ministries for Persons With Aids, Inc., is a non-profit corporation with a Board of Directors comprised of representatives from numerous religious denominations from throughout the Capital District region and concerned individuals within the community. This plaintiff operates a residence for homeless persons with AIDS (PWAs) in the City of Albany and has submitted an application to the Department of Social Services (DSS) for an operating certificate to establish and operate an adult care facility for homeless PWAs at 31 Sixth Street, Waterford, New York. (Complaint at paragraph 5). According to a Program Document issued by Support Ministries, their mission

 is to minister to HIV infected people who lack the physical ability to live independently, or the financial and support resources to secure living arrangements conducive to their well-being. This entails moving people out of shelters, hotels/motels or off the street, where isolation and inconsistent care can hasten their demise. The immediate need is for a safe and secure residence for PWAs, a place where they can work toward greater independence. Therefore, the residence will provide services consistent with this goal. Residents are expected to [be] independent in all normal activities of daily living.

 (Defendants' Exhibit B).

 Support Ministries entered into negotiations with the Holy Cross Novitiate, Inc., in July 1990 to purchase that property. At that time Support Ministries informed the Waterford community of its intentions with respect to the property and began a series of informational meetings (Complaint at paragraph 13), which were held on September 25 and 26, 1990. (Complaint at paragraphs 14 and 15).

 On approximately November 28, 1990, before Support Ministries completed its purchase of the property, the Board of Trustees of the Village of Waterford adopted Local Law No. 2 of 1990, which was to take effect immediately, amending the definition of the term "boarding house" contained in the Village's zoning ordinance to read as follows:

 BOARDING HOUSE AND ROOMING HOUSE: A private dwelling in which at least four but not more than six sleeping rooms are offered for rent and board may be furnished to roomers, and in which no transients are accommodated. A boarding or rooming house shall not include a nursing home, convalescent home, hospice, or other building which is primarily intended to provide accommodation for persons suffering from or recovering from or recuperating from any illness or disease or whose occupants regularly receive any medical or nursing care or treatment.

 (Local Law No. 2 of the Year 1990). Since September 7, 1965, the term "boarding house" had been defined as a private dwelling in which four but not more than ten sleeping rooms are offered for rent and table board may be furnished to roomers, and in which no transients are accommodated. In addition, rooming and boarding houses were listed as special permitted uses in residential districts. (Complaint at paragraph 16).

 Support Ministries applied to the New York State Homeless Housing and Assistance Corporation, which is administered by DSS, for funding assistance for the Waterford project. DSS determined that there is a very significant need for housing among PWAs in the Capital Region and made a conditional reservation of funds under the Homeless Housing and Assistance Program to establish the proposed adult care facility for PWAs at the Waterford property. DSS notified Support Ministries on January 7, 1991, of the conditional award of up to $ 530,000 to be used toward the cost of acquisition and rehabilitation. (Complaint at paragraph 21).

 Support Ministries completed its purchase of the Waterford property on May 29, 1991. The previous month the New York State Office of Parks, Recreation and Historic Preservation determined that the project would have no adverse impact upon 31 Sixth Street. (Complaint at paragraph 19). On November 6, 1991, the New York State Homeless Housing Assistance Corporation determined that the proposed use of the facility would have no significant adverse environmental impact (Complaint at paragraph 22).

 On October 10, 1991, the Zoning and Building Inspector of the Village of Waterford issued a decision refusing Support Ministries' request for a certificate of occupancy, stating that a variance would be needed before the property could be occupied. (Complaint at paragraph 23). Consequently, on October 31, 1991, Support Ministries applied to the Waterford Zoning Board of Appeals (ZBA) seeking two alternative forms of administrative relief. First, they sought a determination that their proposed use constituted the continuation of a pre-existing non-conforming use within the meaning of the local Zoning ordinance and New York's common law. Second, they sought a special use permit. In connection with this application, Support Ministries also sought a variance from the operation of Local Rule No. 2 of 1990 and from the provision of the local zoning ordinance requiring one parking space for each resident of the facility. (Complaint at paragraph 24).

 The ZBA referred the matter to the Saratoga County Planning Board, which on December 19, 1991, voted to return the matter for local consideration, finding that there would be no adverse county-wide impact. (Complaint at paragraph 25).

 Public hearings were then held by the ZBA over a three-month period, on January 9, February 13, and March 12, 1992. Thereafter, on March 26, 1992, the ZBA denied Support Ministries' application in its entirety. (Complaint at paragraph 26). The ZBA found that the proposed use by Support Ministries did not constitute a continuation of a prior non-conforming use because the use of the building as a convent at the time of original enactment of the zoning ordinance was conforming. In addition, they determined that in any event the non-use of the building for more than a year would have extinguished any right to a non-conforming use of the property. The application for a special permit was thus denied since the ZBA found that the proposed use of the building did not fall within the ...


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