SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
CATSKILL HERITAGE ALLIANCE, IN
Petitioner, DECISION/ORDER
for a judgment pursuant to
CPLR Article 78
-against- Index No. 17-701
RJ.L No. 55-17-0461
Richard Mott, J.C.
TOWN OF SHANDAKEN ZONING BOARD OF APPEALS,
‘TOWN OF SHANDAKEN PLANNING BOARD and CROSSROADS
VENTURES, LLC,
Respondents.
X
Petition Return Date: May 2, 2017, Final submission received May 9, 2017.
APPEARANCES:
Petitioner: Claudia K. Braymer, Esq
Braymer Law, PLLC
PO Box 2369
Glens Falls, NY 12801
Co-Counse!
John W. Caffry, Esq., Of Counsel
Caffry & Flower
100 Bay Street
Glens Falls, NY 12801
Co-Counse!
Respondents: Richard J. Olson, Esq.
McCabe & Mack, LLP
63 Washington Street
Poughkeepsie, NY 12601
For: Town of Shandaken Zoning Board of Appeals and
Town of Shandaken Planning Board
John J. Henry, Esq.
Whiteman Osterman & Hanna, LLP
One Commerce Plaza
Albany, NY 12206
For Crossroads Ventures, LLCMott, J.
Petitioner in this Article 78 proceeding seeks, inter alfa, to annul Respondent Town
of Shandaken Zoning Board of Appeals (hereinafter, “ZBA”) interpretation of the
Shandaken Zoning Code (hereinafter, “SZC’) as arbitrary and capricious and thereby annul
Respondent Town of Shandaken Planning Board's (hereinafter, “Board”) special permit and
site plan approvals (hereinafter, “Approvals"), The ZBA, Board and Respondents
Crossroads Ventures, LLC, (hereinafter, "Crossroads”) oppose.
Background
The facts giving rise to this proceeding have been documented in Decisions and
Orders in a prior Article 78 proceeding, which remitted the dispute to the ZBA to determine
ifthe disputed detached lodges and duplex units, (hereinafter, “habitational structures"),
part of a proposed hotel development project, (hereinafter, “Project’), are permitted uses
under the SZC.1 The dispute involves the fact that although hotel, motel and lodge
developments and vacation resorts are permitted in the subject zoning districts, the
habitational structures do not fit the SZC definition of hotel or motel, and the term lodges is
undefined. Further, the SZC prohibits new construction multifamily [sic] dwellings? in said
districts (R3, RS) or requires a special permit (R1.5).
* Gatskill Heritage Alfiance, Inc, v. Crossroads Ventures, LLC, and Town of Shandaken Planning Board, Ulster
County Index No. 16-0385, Decision and Order dated June 21, 2016 (denying a motion to dismiss) and
Decision and Order, dated October 6, 2016. (hereinafter, “October Order")
2 The SZC defines multiple dwellings as “a detached, semidetached or attached building, or portion thereof,
containing three or more dwelling units,” but does not define multifamily dwelling, SZC § 116-4. Family is
defined as certain individuals living together in a single dwelling unit and "maintaining a common
household.” idThe disputed habitational structures consist of 163 detached lodging units
containing multiple lodge and room units grouped around the hotels® to allow larger
groups and families “somewhat longer transient stays.’ Some are intended to be sold as
time shares, remaining under hotel management and fee ownership on a single
consolidated lot. In accordance with the October Order, the Board requested that the ZBA
provide its interpretation and gave their opinion that the subject structures constitute
lodges for transient occupancy and suggesting a definition for “lodge”.
The ZBA conducted a public hearing on December 21, 2016. It also reviewed Project
applications and prior approvals and considered written submissions from Petitioner
which also intervened through counsel at the public hearing. In January, 2017 the ZBA held
a closed workshop meeting to consult with counsel on potential litigation. On February 15,
2017, it approved a resolution (hereinafter, “Resolution”) by a vote of 5-0, without further
ion.
public discu
ZBA Resolution
‘The Resolution observes that the SZC permits vacation resorts and hotel, motel and
lodge developments by special permit in the subject zoning districts. It relies upon
dictionary definitions of the term lodge to conclude that it isa similar use to that of a hotel
or motel which are defined as single structures used for transient occupancy. Further, it
notes that a lodge may be detached from the main hotel building. Therefore, it reasons that
3 A hotel is defined as “a multiple dwelling..which contains living and sleeping accommodations for transient
occupancy" with common exterior entrances”
The Petition refers to 15 detached habitational structures associated with the Wildacres Resort, The
Resolution refers to 18 buildings housing the 163 additiona) units,
3the habitational structures are permitted by special use as part of hotel, motel or lodge
development, “held under common ownership,” as here,
“where the Board's Approval is contingent upon all the individual lots being
consolidated into one lot to be retained in common ownership by Crossroads.
Crossroads therefore will retain ownership of the real property and will manage and
lease the lodge and duplex units to guests who visit the resort.”
The ZBA rejects Petitioner's contention that the structures are multiple dwellings. It
reasons that because motels, inns and similar uses characterized as transient occupancies
are specifically excluded from the definition of dwelling units and multiple dwellings are
made up of dwelling units, any structure used for transient occupancy cannot be a multiple
dwelling, Further, it asserts that this Court previously determined that the habitational
structures are not multiple dwellings because of its rejection of the parties’ remaining
contentions as academic or without merit.
‘The ZBA concludes that:
“the term “lodge” as used in the [SZC] should be interpreted in the manner as
proposed by the [Board], i.e, as including the detached buildings...containing one or
more units of lodging and sleeping accommodations for transient occupancy in
connection with the special permitted use of hotel or lodge development and/or
vacation resort held under common ownership. Furthermore this [ZBA] finds that
the term “transient occupancy” requires that users of the lodge units have another
or permanent place of residence or abode, so that the lodge units will not serve as a
primary residence.”
The Petition
Petitioner claims the Resolution is arbitrary and capricious, alleging in its first,
through |
'd causes of action that the ZBA acted ultra vires by legislating definitions of
5 The SZC defines a dwelling unit as:
“A building or entirely self-contained portion thereof containing complete housekeeping facilities for
only one farmily, ..and having no enclosed space... or cooking or sanitary facilities in common with
any other ‘dwelling unit’. A boarding house, dormitory, motel, inn, nursing home, fraternity, sorority
‘or other similar building shall not be deemed to constitute a ‘dwelling unit."
4lodge and transient occupancy, that it failed to acknowledge SCZ definitions of multiple
dwellings and condominiums which are not permitted as of right in the subject zoning
districts, or to respond to the Court's directive. Its fourth cause of action claims a violation
of the Open Meetings Law, (hereinafter, “OML.") and alleges that the ZBA failed to deliberate
publicly upon the six-page Resolution.
The fifth cause of action alleges that because the ZBA Chair, Keith Johnson,
(hereinafter, “Chair’) failed to recuse himself based upon an alleged conflict of interest
arising from his prior work as a commercial logger for Crossroads’ and because he once
plowed Crossroads’ driveway using the Town's equipment, the Resolution must be
annulled.
The sixth and seventh causes of action challenge the Board's Approvals upon the
2Ba's defective Resolution and that further, they are deficient because they fail to indicate
which of the Projects additional uses are integral to the hotel SZC 116-40(0)(4).«
First, Second and Third Causes of Action
Parties’ Contentions
Petitioner claims that the ZBA exceeded its authority and failed to assess whether
the structures are permitted under the SZC.
Respondents” contend that the Resolution properly reflects the ZBA’s power to
interpret the SZC and that Petitioner is collaterally estopped from asserting that the
habitational structures are multiple dwellings because the Court previously ruled thereon.
“All uses integral to the hotel or motel development shall either be clearly accessory... as defined within §
116-4, {not for human habitation] or be permitted uses or special permit uses.” SZC 116-40(0)(4).
7 Respondents proffer the same arguments and they are addressed collectively herein.
5Discussion
Zoning laws are in derogation of the common law, must be strictly construed against
the party seeking to enforce them and any ambiguity must be resolved in favor of the
property owner. Ohrenstein v Zoning Bd. of Appeals of Town of Canaan, 39 AD3d 1041, 1042
[3d Dept 2007}. Further, a zoning board's interpretation of zoning law generally is
afforded great deference and “will only be disturbed ifit is irrational or unreasonable.”
Meier v Vil. of Champlain Zoning Bd. of Appeals, 129 AD3d 1364, 1365 [3d Dept 2015]
Granger Group v Town of Taghkanic, 77 AD3d 1137, 1141 [3d Dept 2010] (ZBA reasonably
concluded that the racetrack constituted a recreational use for private recreational
Purposes within the customary meaning of recreation). However, such deference is not
absolute and the ultimate responsibility of interpreting the law is with the court. Tartan Oil
Corp. v Bohrer, 249 AD2d 481 [2d Dept 1998]. Brancato v Zoning Bd. of Appeals of City of
Yonkers, NY., 30 AD3d 515, 516 [2d Dept 2006] (narrow exception to deference doctrine
where ZBA incorrectly interprets zoning code).
Where a zoning ordinance does not define a term, courts will give such term its
ordinary meaning. Sullivan v Bd. of Zoning Appeals of City of Albany, 144 AD3d 1480, 1482
[8d Dept 2016], lv to appeal denied, 29 NY3d 901 [2017] ((ZBA improperly imposed an
additional requirement in defining place of worship, requiring it also be communal). Such
interpretation must construe the whole ordinance in a harmonized manner “to give it plain
meaning, thereby avoiding a construction that renders superfluous any language therein.”
“Winterton Properties, LLC v Town of Mamakating Zoning Bd. of Appeals, 132 AD3d 1141,
1143 [3d Dept 2015]; Saratoga County Economic Opportunity Council, Inc. v Vil. of Ballston
Spa Zoning Ba. of Appeals, 112 AD3d 1035, 1037 [3d Dept 2013]; Lewis Family Farm, Inc. v‘New York State Adirondack Park Agency, 64 AD3d 1009, 1014 [3d Dept 2009] (although
farmworker residences fall within definition of single family dwellings they are also
agricultural use structures under the ordinance)
Finally, while it is proper for a zoning board to impose conditions and safeguards in
conjunction with a special permit, they must be reasonable and relate only to the use of the
land without regard to the person who owns or occupies it. Dexter v Town Bd. of Town of
Gates, 36 NY2d 102, 105 [1975]. Therefore, a zoning board of appeals "may not insert
conditions or criteria into a zoning ordinance that are not contained in the statutory
language. Winterton Properties, LLC v Town of Mamakating Zoning Bd. of Appeals, 132 AD3d.
1141, 1143 [3d Dept 2015], citing Saratoga County Economic Opportunity Council, Inc. v Vil.
of Ballston Spa Zoning Bd. of Appeals, 112 AD3d 1035, 1037 [3d Dept 2013].
S2C § 116-68(A)(2)(a) empowers the ZBA:
“To decide upon the following questions upon request by an administrative official,
board or agency of the town:
(a) Determination of the meaning of any portion of the text of this
Chapter or of any conditions or requirement specified or made
{hereunder}.”
SZC § 116-10 (B) states that:
“Any use not listed specifically or through a similar use, as such may be deemed by the
Zoning Board of Appeals, as a permitted, special permit or accessory use ...shall be
considered a prohibited use...”
While the ZBA improperly concluded that this Court previously determined that the
habitational structures were not multiple dwellings, its conclusion that their use is similar
to that of a hotel in accordance with a dictionary definition of a lodge, is rationally based.
8 Hotel and motel are specifically defined as multiple dwellings in the SZC, albeit those intended for transient
occupancy.
7Cole v Town of Esopus, 55 Misc 3d 382 [Sup Ct 2016] (interpretation by a zoning board of
appeals of an ambiguous zoning law is entitled to deference). Winterton Properties, LLCv
Town of Mamakating Zoning Bd. of Appeals, 132 AD3d at 1143. Indeed, the ZBA notes that
although some units would be sold as time shares, they would continue to be owned and
managed by Crossroads as part of the whole Project, located on a single consolidated lot.
Similarly, while the ZBA exceeded its authority by defining transient occupancy as
Fequiring an occupant to have a primary residence elsewhere, Dexter v Town Bd. of Town of
Gates, 36 NY2d at 105, its reasoning that the term “transient” excludes the habitational
structures’ use as a primary residence is rational, where the plain meaning of the term
limits occupancy to a short, fleeting or transitory period.
Accordingly, the Resolution constitutes a rational interpretation of the SZC’s
ambiguity which permits hotel, motel and lodge developments by special permit in the
subject zoning districts, despite the prohibition on new construction multifamily dwellings
in those same zones. Consequently, Petitioner's first three causes of action are without
merit.
Open Meetings Law
Parties’ Contentions
Petitioner claims that the ZBA violated the OML and frustrated its purpose of
ensuring meaningful public participation by deliberating in a private workshop session
with its attorney. Petitioner cites that the Resolution vote, while occurring in a public
session, was not preceded by ZBA public deliberations
The ZBA maintains that it properly engaged in a closed session discussion with its
attorney to discuss potential litigation, that the OML does not specifically require publicdeliberations following a hearing and that the Resolution reflects each member's
determination.
‘The OML requires that meetings of a public body be open to the public, “except that
an executive session of such body may be called and business transacted thereat in
accordance with.” POL § 105; POL § 103 [a]; Zehner v Bd. of Educ. of Jordan-Elbridge Cent.
School Dist, 91 AD3d 1349 [4th Dept 2012]. However, the OML is not to be construed to
cover attorney-client communications. POL § 108(3); Brown v Feehan, 125 AD3d 1499,
1501 [4th Dept 2015]; Young v Bd. of Appeals of Inc. Vil. of Garden City, 194 AD2d 796, 798
[24 Dept 1993] (confidential communications between the board and its counsel
concerning legal matters are exempt from the OML). Thus, Board may seek advice of
counsel without regard to the OML disclosure requirements so long as executive session is
not used to avoid public debate.
Here, Petitioner fails to allege facts meriting a sanction, because it has failed to
demonstrate a formal rule violation evidencing an attempt to avoid public serutiny of its
deliberations. POL § 103(e). Cf. Frigault v Town of Richfield Planning Bd, 107 AD3d 1347,
1352 [3d Dept 2013] (no good cause for sanction even where there is a formal rule
violation concerning change of mecting location where purpose was to ensure public
Participation) with, Gordon v Vil. of Monticello, Inc., 87 NY2d 124 [1995] (village board
violated public deliberations requirement when it created and divided up elected
leadership positions in closed executive session, thereby avoiding quorum requirements).
Further, there is no specific requirement of public discussion prior to a vote after a hearing.
Therefore, Petitioner's fourth cause of action must be dismissed.Conflict of interest
Petitioner’s submission is insufficient to demonstrate that the ZBA Chair had a
conflict of interest that affected the outcome of deliberations inasmuch as the Board’s vote
was 5-0, In addition, Petitioner failed to rebut the Chair's affidavit substantiating that he
had no conflict of interest. The Chair disclosed a 2010 contract with Crossroads to log land
it then owned, which the Chair had logged for a prior owner and which Crossroads later
sold to New York State. Cf, Zagoreos v Conklin, 109 AD2d 281, 282 [2d Dept 1985] (where
employees of a utility cast the decisive votes of ZBA granting said utility’s application for a
variance said determination was properly set aside due to a perceived conflict of interest)
and Tuxedo Land Trust, Inc. v Town Bd. of Town of Tuxedo, 112 AD3d 726 [2d Dept 2013]
(petitioners could not prevail where they failed to controvert the sworn allegations of the
involved officials) with Matter of Tuxedo Conservation & Taxpayers Assn, v. Town Bd. of
Town of Tuxedo, 69 A.D.2d 320, 323-327 (2nd Dep't 1979) (determination correctly set
aside where voting member was employed by entity that did business with applicant and
would likely benefit financially if application were granted); see also, Parker v Town of
Gardiner Planning Bd, 184 AD2d 937, 938 [3d Dept 1992] (mere fact of employment or
similar financial interest does not mandate disqualification, especially where such interest
is insubstantial). Consequently, Petitioner's fifth cause of action is without merit.
Board Approvals
Given the ZBA’s rational conclusion that the habitational structures are a lodge
development permitted in the subject zoning districts by special permit, the Approvals are
also entitled to deference. Valentine v McLaughlin, 87 AD3d 1155, 1158 [2d Dept 2011]
(where planning board's decision has a rational basis in the record, a court may not
10substitute it
‘own judgment, even where the evidence could support a different
conclusion); Kinderhook Dev, LLC v City of Gloversville Planning Bd., 88 AD3d 1207, 1209
[3d Dept 2011] (petitioner met its burden of demonstrating that the proposed project has
complied with any legislatively imposed conditions on an otherwise permitted use)
Accordingly, the petition is dismissed. Any remaining contentions have been
rendered academic by this determination.
This constitutes the Decision and Order of this
Court. The Court is forwarding the
original Decision and Order directly to the Respondent ZBA who is required to comply with
the provisions of CPLR §2220 with regard to filing and entry thereof. A photocopy of the
Decision and Order is being forwarded to all other parties who appeared in the proceeding.
All original motion papers are being delivered by the Court to the Supreme Court Clerk for
transmission to the County Clerk.
Dated: Hudson, New York
June 30, 2017
RICHARD MOTT>
Papers Considered:
1. Notice of Petition of Claudia K. Braymer, Esq,, date March 22, 2017 and Petition of
Claudia K. Braymer, Esq., dated March 23, 2017 with Exhibits A-D;
2. Verified Answer and Affirmation and of Richard J. Olson, Esq., dated April 28, 2017, with
Exhibits A-E, Affidavit of Keith Johnson, dated April 27, 2017 with Exhibit A, Certified
Copy of the Administrative Record and Supplement to Certified Copy of Administrative
Record of Anne Ricciardella, dated July 7, 2016 and April 25, 2017, respectively;
3. Verified Answer, Affirmation and Memorandum of Law of John J. Henry, Esq, dated
April 28, 2017 with Exhibits A-E;
4, Reply Memorandum of Law of Claudia K. Braymer, Esq., and Reply Affidavit of Kathy
Nolan, dated May 2, 2017.
a