Third Department courthouse. Photo: NY Courts

An Upstate town has wrongly turned away a Brooklyn-based Orthodox Jewish yeshiva's application to convert existing area buildings into classrooms and residences for boys' studies, a state appeals court has ruled, writing that the applicable zoning ordinance's definition of a place of worship “expressly” and “unambiguously” includes the facilities proposed.

An Appellate Division, Third Department panel rejected the Town of Wawarsing Zoning Board of Appeals' finding that much of the yeshiva's converted-building use proposal, from classrooms for Torah and Talmudic study to a dorm, was “akin to a school or a camp” that didn't belong on the yeshiva's 23-acre site.

The board had acknowledged that Yeshiva Talmud Torah Ohr Moshe's proposed synagogues and rabbi residence were permitted, the panel pointed out, but it had asserted that proposed summertime school and living facilities for about 150 male students between ages 12 and 17 were not permitted within the Neighborhood Settlement District on which the site is found.

Looking to the zoning ordinance's language for such districts, the panel wrote in part that “on-site school halls that provide religious instruction incident to the use of a structure for religious observance, such as the proposed synagogues, are expressly included in the definition of place of worship.”

Addressing the student living and dining facilities, the panel said that the definition “unambiguously includes the living facilities … particularly in light of [the yeshiva's] representation that its purpose in constructing the facility is to provide religious instruction at a location with tranquil natural surroundings that facilitate reflection and study—a use that is consistent with a retreat house—and, thus, such facilities are permitted uses.”

Now, the zoning board must consider the yeshiva's site-plan review application, which it hadn't taken up once it found problems with certain proposals for use of the site, a lawyer for the yeshiva and a principal at Sive Paget & Riesel in New York, Steve Barshov, said Tuesday.

The panel of Justices Christine Clark, Robert Mulvey, Sharon Aarons, Phillip Rumsey and Stan Pritzker explained that in 2016, Yeshiva Talmud Torah Ohr Moshe submitted a site-plan review application to Wawarsing regarding a proposal to rehabilitate and convert existing buildings for “ongoing torah and talmudic studies throughout the summer months” by mostly teenage students.

The proposal included two synagogues, classrooms, a residence for supervising rabbi, and student dormitory and dining facilities, the panel said. It then noted the 23-acre site sits in a Neighborhood Settlement District that allows property to be used for, among other things, places of worship.

Later in its March 28 opinion, the justices pointed out that, under the pertinent zoning ordinance, a place of worship is defined as the “[u]se of land, buildings, and structures for religious observance, including a church, synagogue, or temple and related on-site facilities such as monasteries, convents, rectories, retreat houses, and fellowship or school halls.”

After submitting the site-plan review application, a town municipal code officer determined that the planned use was not permitted because of restrictions on a camp or any type of occupancy that permits overnight residence of students, staff or families, the justices said.

Yeshiva Talmud Torah Ohr Moshe—which runs an all-boys school in Brooklyn, according to various education-related websites—in turn asked the town Zoning Board of Appeals to review that decision. The board later affirmed the determination, concluding that the proposed property use was “akin to a school or a camp,” the panel wrote.

Next the yeshiva brought an Article 78 proceeding in Ulster County Supreme Court, seeking to annul the zoning board's decision. According deference to the board's determination, Supreme Court Justice Lisa Fisher affirmed the board's decision.

The Third Department panel overruled Fisher and ended its opinion by stating that the zoning board's “determination is annulled and the matter is remitted for respondents [which includes the board] to consider [the yeshiva's] site plan application.”

“Judicial review of a determination of a zoning board of appeals is generally deferential,” the justices pointed out. But they noted that “however, where, as here, the issue presented is one of pure legal interpretation of the underlying zoning law or ordinance, deference is not required,” quoting Matter of Fruchter v Zoning Bd. of Appeals of the Town of Hurley.

Mary Lou P. Christiana, an attorney in Kingston, represented the Wawarsing's Zoning Board of Appeals. In an email Tuesday, she said, “My client and I are disappointed in the Appellate Division's decision, and we are exploring whether to seek leave to appeal the decision to the Court of Appeals.”

Barshov said by phone on Tuesday that “there was a question in my mind as to why an issue that was so clear took so long and so many forums before it was correctly ruled upon.”

He added that he and the yeshiva are “very pleased” with the Third Department panel's ruling and said that “he would note that there are many jurisdictions in this part of upstate New York that are adopting zoning rules to restrict yeshivas and their activities they [the jurisdictions] should be paying very close attention to this litigation.”