Second Circuit affirms Park Avenue church ruling

District court stopped Buildings from revoking church’s catering permit. The Third Church of Christ, Scientist, located at Park Avenue and 63rd Street in Manhattan, had a dwindling congregation, and its 80-yearold building was in need of major repairs. In order to avoid selling the building, Third Church agreed to allow Rose Group Park Avenue LLC to cater private events at the church. In exchange, Rose Group would pay for Third Church’s operating expenses and capital improvements. Prior to finalizing the agreement, Third Church sought an accessory use permit to allow Rose Group to cater events when the building was not being used by the congregation. Buildings found that the proposed use would qualify as an “accessory use” under the zoning resolution, and the caterer began holding private events.

After receiving complaints from neighbors about the events, Buildings issued Third Church a notice of intent to revoke the accessory- use approval. Buildings found that the catering business appeared to be the principal commercial establishment based on the frequency of events. The notice stated that, beginning in six months, Buildings would not allow any catered events to be held at Third Church.

Third Church sued, claiming that Buildings was treating it on unequal terms with nonreligious institutions in the area. Third Church argued that the nearby Beekman and Regency hotels both operated restaurants and event spaces in violation of the zoning resolution. Rather than revoking its approvals, Buildings had only issued the hotels notices of violation for operating outside their certificates of occupancy. The district court found that Buildings had treated Third Church on less than equal terms with similar secular entities and enjoined Buildings from revoking its approval. 6 CityLand 15 (Feb. 15, 2009).

Buildings appealed the injunction, claiming that the hotels were not valid secular comparators to Third Church and that the hotels had not been treated differently. Buildings argued that Third Church’s catering activities violated the zoning resolution because they did not qualify as an accessory use, while the hotels’ activities had qualified as an accessory use under the zoning resolution but allegedly violated their certificates of occupancy.

The Second Circuit affirmed the injunction. The circuit court found that Third Church’s and the hotels’ catering activities were similarly situated, noting that they were located in the same residential zoning district and engaged in allegedly impermissible activities. Regardless of whether the activities violated the zoning resolution or a certificate of occupancy, the three entities were allegedly violating the City’s land use regulations. The court added that Buildings’ notice of intent to re-convoke appeared to prohibit all catering events at the church, including concededly accessory catering uses such as a wedding or baptism. In contrast, there was no evidence that Buildings threatened to “shutter” the hotels’ catering facilities, thereby permitting what Buildings must have considered an accessory use.

Third Church of Christ, Scientist v. Buildings, 2010 WL 4869763 (2d Cir. Dec. 1, 2010) (Attorneys: John R. Cuti, for Third Church; Michael A. Cardozo, Ronald E. Sternberg, for Buildings).

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