In this hybrid CPLR article 78 proceeding and declaratory judgment action, petitioner-plaintiff Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints ("the Church") seeks a judgment: (1) declaring that Section 375-40 of the Code of the City of Albany ("the Code") is unconstitutional, ultra vires, null, void and without force or effect, as applied to the Church's application for a demolition permit; (2) annulling the determination of respondent-defendant The City of Albany Planning Board ("the Planning Board") denying the Church's demolition application; (3) directing the Planning Board to grant the Church's demolition application; and (4) adjudging the denial of the Church's demolition application to be unconstitutional. Respondents-defendants the City of Albany ("the City"), Common Council of the City of Albany, Gerald Jennings as Mayor of the City of Albany, and the Planning Board oppose the petition/complaint, seeking its dismissal.

BACKGROUND

According to the Petition-Complaint, the Church's local congregation has outgrown the converted residence on Madison Avenue that it has been using as a temporary worship facility for more than a decade. Thus, about five years ago, the Church began a search for available property on which to build a permanent chapel in the New Scotland Avenue area of the City, a residential neighborhood in close proximity to many of its members (Verified Petition/Complaint at ¶ 11-12). After a protracted search, the Church paid approximately $1.3 million in 2010 for property located at 420 New Scotland Road ("the Property").

The Property was purchased from the Roman Catholic Diocese, which had used the building as a middle school. The existing structure "consists of a single-story concrete block (with brick facade) . . . of almost 25, 000 square feet, designed for use as large classrooms, in the style in use in the late 1950's" (id. at ¶ 14). The building, which has been vacant since 2008, was part of a larger "campus" of buildings associated with the former St. Teresa of Avila's Roman Catholic Church. The site is zoned R-2A (One and Two Family Residential Zoning District and Traditional Neighborhood Design Overlay District), a classification that expressly permits houses of worship as of right (see City Code § 375-64 [A] [3]).

After purchasing the Property, the Church engaged an architectural firm to consider whether the existing building could be renovated to serve as a "Mormon house of worship" in accord with the Church's programmatic needs and religious practices (Verified Petition/ Complaint. at ¶ 15). Based on the architectural firm's professional evaluation, the Church ultimately determined that the existing school building could not reasonably be converted into a suitable Mormon house of worship and that the better course would be to build an approximately 14,000 square-foot new chapel ("Chapel") in place of the existing single-story brick schoolhouse. As a result, the Church was required to apply for various permits from the City.

As relevant here, the Church applied for a demolition permit ("Demolition Permit").

Under recent amendments to the City Code, the Planning Board must review demolition applications prior to the issuance of a permit by the Division of Building & Codes ("DBC") (see City Code § 375-40 [D]). However, any necessary approvals for variances and parking must [*2]have been granted prior to review of the demolition application (id. [G]). While these applications were pending before the Board of Zoning Appeals ("BZA"), the Church made a preliminary presentation to the Planning Board regarding its proposed site plan and the Demolition Application. Thereafter, the BZA conditionally approved the necessary area variances and parking permit. In so doing, the BZA issued a Negative Declaration under the State Environmental Quality Review Act ("SEQRA"). Further, the BZA determined that the character of the neighborhood would not undergo an undesirable change.

The Church then amended its proposed site plan to comply with the various conditions outlined by the BZA and to address feedback received from neighborhood associations. The Church also submitted a document explaining the religious significance of the Chapel's design to the Planning Board. The Planning Board reviewed these submissions and the application for a Demolition Permit at meetings in October, November and December of 2010. The Church, through its architect, described to the Planning Board the considerable efforts it made to reuse the existing low-rise school building, but noted, inter alia, that due to the building code requirements applicable to the facility's intended use, only the concrete slab, structural steel and flat roof from the existing structure could actually be reused.

This explanation was supplemented with a letter submission from the Church dated December 14, 2010, addressing the benefits and burdens of adaptive reuse versus demolition. At the request of the Planning Board, the Church also submitted a Full Environmental Assessment Form ("EA") under SEQRA. Following at least one further meeting at which additional public comments were received, the Planning Board denied the Church's Demolition Application on February 10, 2011.

In the written determination filed with the Albany City Clerk on March 1, 2011, the Planning Board noted that existing building was "part of a larger complex of five buildings comprising the former St. Theresa of Avila campus. . . . The campus has been noted as an integral part of the New Scotland Avenue area neighborhood" (Decision of the Planning Board at 2, Verified Petition-Complaint, Exhibit K). The Board found, based on its review and application of the factors set forth in City Code § 375-40 (H), as follows:

(1)"[t]he existing structure is intertwined with the fabric of the neighborhood and as such, the removal of said structure would have a negative impact on the character of the neighborhood";

(2)realistic alternatives to demolition exist;

(3)"the cost to rehabilitate the existing structure to perform the necessary function for the applicant is nearly identical to the cost of demolition and rebuilding a new structure"; and

(4)"there is no substantial burden to use or operate the structure for its proposed use" (id. at 3).

The Planning Board also explained that its "decision in this matter does not substantially burden the ability of the applicant to perform its religious function(s)" under the Religious Land Use and Institutionalized Persons Act ("RLUIPA") (id. at 4).

The Church then commenced this hybrid proceeding/action. Oral argument was held on September 16, 2011 at the request of the parties. This Decision, Order & Judgment follows.

[*3]DISCUSSION

The Church begins with the contention that the Planning Board's denial of the Demolition Application should be annulled as arbitrary, capricious and unsupported by substantial evidence. In addition to relying upon generally applicable principles of administrative law, the Church notes that religious institutions in New York historically have enjoyed special consideration in the context of municipal regulation and zoning matters. While recognizing that it is not exempt from local zoning laws and regulations, the Church argues that the Planning Board should have demonstrated greater flexibility in evaluating its proposal to demolish the existing schoolhouse in order to construct a new house of worship.

"[A]lthough religious institutions are not exempt from zoning laws, greater flexibility is required in evaluating applications for religious use, and every effort to accommodate such use must be made" (Matter of Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v Zoning Bd. of Appeals of Town/Vil. of Harrison, 296 AD2d 460, 462 [2d Dept 2002]; see Matter of Capriola v Wright, 73 AD3d 1043, 1045 [2d Dept 2010]). This type of special consideration appears to have been given in the context of special use permits or application of general zoning laws (see e.g. Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508 [1956]). Here, the zoning classification of the property allows it to be used for a house of worship as of right, and the BZA already has approved any necessary variances. Thus, the issue is not whether the subject property can be used for religious purposes, but only the manner in which a structure will be constructed or reconstructed.

Under the circumstances, the Court is not persuaded that respondents were required to accord petitioner any special consideration (see e.g. Matter of Turkewitz v Planning Bd. of City of New Rochelle, 24 AD3d 790, 791 [2d Dept 2005] [review of Planning Board approval of a site plan and parking plan for proposed synagogue], lv denied 6 NY3d 713 [2006]). Rather, the Court will apply generally applicable principles of administrative law to determine whether the Church has proven that the Planning Board's decision to deny the Demolition Permit is arbitrary, capricious, contrary to law or unsupported by substantial evidence (see id.; Matter of Fairway Manor, Inc. v Bertinelli, 81 AD3d 821, 823 [2d Dept 2011]). In this context, substantial evidence refers to "whether the record contains sufficient evidence to support the rationality of the Board's determination" (Matter of Kaywood Props., Ltd. v Forte, 69 AD3d 628, 629 [2d Dept 2010]; see also Matter of WEOK Broadcasting Corp. v Planning Bd. of the Town of Lloyd, 79 NY2d 373, 383 [1992]).

Review of an application for a demolition permit must be undertaken by the Planning Board in accordance with the relevant provisions of the City Code. Certain factors, including "[t]he relationship of the building to the character of the neighborhood as an established and definable area, the streetscape and its environs, or any adjacent or attached buildings", are mandatory and must be considered (City Code § 375-40 [H] [1] [d]; see also id. [a-f]). In addition, the Planning Board has discretion to consider other enumerated factors, including "[w]hether realistic alternatives, including adaptive uses, are likely based upon the nature or cost of work necessary to preserve the structure" (id. §375-40 [H] [2] [a]; see also id. [b-e]). In granting demolition approval, the Planning Board may "impose such reasonable conditions and restrictions [as] necessary" (id. [J]).

The Planning Board's determination denying the application for the Demolition Permit rests, [*4]in substantial part, upon the finding that "[t]he existing structure is intertwined with the fabric of the neighborhood and as such, the removal of said structure would have a negative impact on the character of the neighborhood" (Decision of the Planning Board, Administrative Record at 6). However, the Administrative Record lacks substantial support for this finding. The record shows that the existing structure — a single-story school building with a brick facade — was built in the 1950s and served as parochial middle-school until 2008, since which time it has remained vacant. Photographs of the existing structure in the Administrative Record support the Church's contention that there is nothing unique or significant about the existing structure (see e.g. id. at 51).^[FN1]

Nor is there any record basis upon which to conclude that the replacement of the existing 1950s schoolhouse with a house of worship designed specifically to meet the Church's programmatic, religious and fiscal needs would have a negative impact on the character of the local neighborhood. Indeed, as respondents-defendants acknowledge, the BZA previously determined that the Church's proposed Chapel would be consistent with the character of the neighborhood. While the Court recognizes that the BZA's determination is not binding upon the Planning Board, the divergent views of these two City agencies is noteworthy given the lack of evidentiary support for the Planning Board's "fabric of the neighborhood" finding, as well as the Planning Board's failure to distinguish the prior BZA finding.

In an effort to identify a factual predicate for the Planning Board's finding, respondents-defendants now point to the fact that the existing building is "eligible" for possible listing on the National Historic Registry. However, respondents-defendants concede that the existing structure is not on any historic registry (see Respondent's Memorandum of Law at 6). Although the "Statement of Significance" ("the Statement") from the New York State Office of Parks, Recreation and Historic Preservation indicates that St. Theresa of Avila Church and the surrounding campus were developed at the same time as the neighborhood,^[FN2] the Statement does not articulate any basis for concluding that the existing structure is historically significant or that [*5]its removal would adversely impact the neighborhood. Further, unlike St. Theresa of Avila Church, which is noted to have certain architectural details, the Statement acknowledges that the former parochial school at issue herein is a "more modern style created by an unknown architect" (id. at 49). And the Planning Board's determination did not rely upon the existing structure's "eligibility" for possible listing on the National Historic Registry, find that the existing structure had "significant historical, architectural, aesthetic or cultural value in its present or restored condition" or determine that "the loss of the building would be detrimental to the historical or architectural heritage of the city" (City Code §375-40 [H] [1] [c]).

Similarly the letter in the Administrative Record from Susan Holland, the Executive Director of the Historic Albany Foundation, does not squarely address the historic significance, if any, of the existing school structure or the significance of the St. Theresa "campus" to the neighborhood (see Holland Letter [dated 12-29-10], id. at 18-19). In fact, the letter acknowledges that neither the existing building nor any of the other buildings in the St. Teresa's complex have been listed (or even nominated) for inclusion on either the National or State Registers of Historic Places (see id. at 18). In contrast, a letter from the Roman Catholic Diocese of Albany notes its vigorous disagreement with the assertion that the existing building, or any of the St. Teresa complex, should be registered as a historic place (see Olsen Letter [dated 10-18-10], id. at 53). And again, the Planning Board's findings were not based on the historic significance of the existing structure or the complex, but rather upon the alleged "negative impact" that demolition of the existing 1950s school building would have upon "the character of the neighborhood".

To the extent that the Planning Board's "fabric of the neighborhood" finding is said to be premised on negative community reaction, the Administrative Record includes only one email and one letter from community members, who merely note in passing their disappointment that the existing building could not be reused (see Viggiani Email [dated 2-9-11], id. at 8; Hinkel Letter [dated 12-24-10], id. at 20). Rather than opposing demolition, this correspondence principally was directed at the mitigating the potential impacts of the physical process of demolition on the neighborhood, including the prevention of excessive noise and dust (see id.).^[FN3] In any event, even if the record had showed generalized community opposition to the Church, which it does not, such a showing, without more, does not provide a rational basis for denial of the permit (see Matter of Richter v Delmond, 33 AD3d 1008, 1010 [2d Dept 2006]; Matter of Eddy v Niefer, 297 AD2d 410, 412 [3d Dept 2002]; Matter of Church of Jesus Christ of Latter-Day Saints, 260 AD2d at 769-770).

The Planning Board's second and third findings — that realistic alternatives to demolition exist and "the cost to rehabilitate the existing structure to perform the necessary function for the applicant is nearly identical to the cost of demolition and rebuilding a new structure" (Decision of the Planning Board, Administrative Record at 6) — also lack substantial support in the Administrative Record. From the very inception of the project, the Church diligently considered the feasibility of reusing the existing structure, analyzing the issue from fiscal, programmatic and theological perspectives. Further, the Church submitted considerable information to the Planning Board from its architect regarding the feasibility of reuse and the various benefits and detriments [*6]associated with such an approach. A review of these submissions, which stand unrebutted by any other proof of record, leads the Court to conclude that reuse of the existing low-rise schoolhouse as a Mormon house of worship was neither realistic nor cost-neutral.

In terms of re-use, the Church's submissions establish that the existing structure has more than double the required square footage. The existing building comprises 24,722 square feet, whereas the proposed new Chapel utilizes only slightly more than one-half as much space, about 14,010 square feet (see Narrative Description, Administrative Record at 109). Further, the Church articulated to the Planning Board that the existing building's structural configuration as a series of large classrooms was inconsistent with the Church's manner of religious practice (see Transcript of Planning Bd. Meeting 12-9-10, Verified Petition-Complaint, Exhibit G). And in submissions before the Planning Board, the Church explained in detail the religious significance and programmatic utility of the proposed design of the new structure (see id. at 27-28; see also Matter of Committee to Protect Overlook, Inc. v Town of Woodstock of Zoning Bd. of Appeals, 24 AD3d 1103, 1104 [3d Dept 2005] [" a church is more than a merely an edifice affording people the opportunity to worship God and religious uses and activities are more than prayer and sacrifice'"(quoted source omitted)], lv denied 6 NY3d 714 [2006]).

Further, the architectural information provided to the Planning Board establishes without contradiction that only the concrete slab, structural steel and flat roof from the existing structure could be reused. The Church explained that obtaining a certificate of occupancy for the structure as a house of worship would require, among other things: (1) the installation of a fire pump, fire alarm system, and mechanical ventilation system; (2) reconfiguration of restrooms and doorways to comply with the American with Disabilities Act; and (3) reconstruction of exterior walls, room walls, corridor walls, ceilings and windows to meet the current energy code (see id.). In addition, the Church explained that air conditioning would need to be installed in the facility, which together with a new ventilation system, would require upgrading the electrical system (see id.). No contrary evidence on these points was adduced before the Planning Board.

With respect to the cost of rehabilitation, the record does support the Planning Board's finding that the initial cost of rehabilitating the existing structure would be comparable to new construction. But as the Church aptly notes, the costs are similar because, "even in a reuse[,] construction essentially would be from the ground up" (Memorandum of Law at 19 n7). And while the up-front costs of the reuse scenario may be comparable to new construction, the record establishes that rehabilitation would result in substantially higher recurring costs to the Church for operations, maintenance and energy (see Transcript of Planning Bd. Meeting 12-9-10, Verified Petition-Complaint, Exhibit G). Nothing in the Planning Board's decision evidences any consideration of these ongoing fiscal burdens.

In addition to these fiscal burdens, the Administrative Record demonstrates that reuse of the existing 1950s, low-rise schoolhouse would not meet the Church's programmatic and religious needs. Indeed, in its written determination, the Planning Board seemingly acknowledged that reuse would be "a significant departure in terms of programmatic suitability for this Church" (Decision of the Planning Board, Administrative Record at 6).

In sum, the record simply does not substantially support the Planning Board's findings that the existing building can be realistically adapted to meet the fiscal, programmatic and doctrinal needs [*7]of the Church at a nearly identical cost (cf Matter of Richter, 33 AD3d at 1010). Given the above, the Planning Board's fourth finding — that "there is no substantial burden [on the Church] to use or operate the structure for its proposed use" — also must be rejected as unsupported.^[FN4] Under the reuse scenario relied upon by the Planning Board, the Church would be saddled with the costs of operating and maintaining a building that is more than 40% larger than its actual needs while, at the same time, being deprived of facilities consistent with its programmatic and theological needs (cf. Matter of Society for Ethical Culture in City of NY v Spratt, 51 NY2d 449, 454-455 [1980]).

Based on the forgoing, the Court concludes that the Planning Board's determination to deny the Demolition Permit is arbitrary and capricious and lacks a rational basis in the administrative record (see Matter of Church of Jesus Christ of Latter-Day Saints, 260 AD2d at 769). Furthermore, to the extent that respondents-defendants now seek to support the challenged determination on the basis of new factors that were not considered or articulated by the Planning Board, they may not do so (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758 [1991], supra).

Accordingly, the Court hereby annuls the determination of the Planning Board denying the Demolition Permit and remits the matter to the Planning Board with a direction to issue the Demolition Permit (see Matter of Capride, 73 AD3d at 1046; Matter of Church of Jesus Christ of Latter-Day Saints, 260 AD2d at 769; see generally Matter of Peckham v Calogero, 54 AD3d 27, 34 [1st Dept 2008], affd 12 NY3d 424 [2009]), subject to any reasonable conditions and safeguards that are necessary (see City Code §375-40 [J]).

Given the above, the Court need not address the Church's remaining arguments offered in support of annulling the Planning Board's denial of the Demolition Permit, including the claim that such denial violated RLUIPA (see e.g.Town of Mount Pleasant v Legion of Christ, Inc., 7 NY3d 122, 129 [2006], cert denied 549 US 1208 [2007]).

In addition, the Court declines to consider petitioner's request for declaratory relief. "The primary purpose of a declaratory judgement is to adjudicate the parties' rights before a wrong actually occurs in the hope that later litigation will be unnecessary'" (Klostermann v Cuomo, 61 NY2d 525, 539 [1984], quoting Matter of Morgenthau v Erlbaum, 59 NY2d 143, 148 [1983], cert denied 464 US 993 [1983]). The decision to entertain an action for declaratory judgment is a matter committed to the sound discretion of the Court, which may decline to consider such relief where other adequate remedies are available (Clarity Connect, Inc. v AT & T Corp., 15 AD3d 767, 767 [3d Dept 2005], citing Matter of Morgenthau, 59 NY2d at 148; CPLR 3001). Here, petitioner has an effective remedy under article 78 of the CPLR, and a declaration is, therefore, unnecessary (see Matter of Gable Transp., Inc. v State of NY, 29 AD3d 1125, 1127-1128 [3d Dept 2006]; see also Town of Fishkill v Royal Dutchess Props., Inc., 231 AD2d 511, [*8]511-512 [2d Dept 1996]).

Therefore, it is

ADJUDGED that the portion of the verified petition/complaint seeking relief under article 78 of the CPLR is granted to the extent indicated herein and dismissed in all other respects; and it is further

ORDERED and ADJUDGED that the February 10, 2011 determination of the City of Albany Planning Board is annulled; and it is further

ORDERED and ADJUDGED that the matter is remitted to the City of Albany Planning Board, which is directed to approve the application of the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints for authorization to demolish an existing 24,722+ s.f. building pursuant to City Code § 375-40 (d) in order to accommodate a 14,010+ s.f. building and parking lot with 77 spaces, subject to any reasonable conditions and safeguards as are necessary (see City Code §375-40 [J]) in accordance with the foregoing.

This constitutes the Decision, Order & Judgment of the Court. The original of this Decision, Order & Judgment is being returned to petitioner-plaintiff's counsel; all other papers are being transmitted to the Greene County Clerk. The signing of this Decision, Order & Judgment shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated: October 20, 2011

Albany, New York

Richard M. Platkin, A.J.S.C.

Papers Considered:

Notice of Petition dated March 29, 2011;

Verified Petition and Complaint for Declaratory Judgment verified March 29, 2011, with annexed Exhibits A-K;

Affidavit of John P. Stockli, Esq., sworn to March 29, 2011;

Affidavit of Donald Swartz sworn to March 24, 2011, with annexed Exhibit A;

Affidavit of Richard G. Hedberg sworn to March 24, 2011;

Memorandum of Law in Support of Verified Petition and Complaint for Declaratory Judgment dated March 28, 2011; [*9]

Answer verified April 19, 2011;

Administrative Record;

Respondents' Memorandum of Law in Opposition to the Petition dated June 7, 2011;

10. Reply Affidavit of John P. Stockli, Jr., Esq., sworn to July 5, 2011, with annexed Exhibits A-E;

11. Reply Affidavit of Richard Hedberg sworn to June 30, 2011;

12. Reply Memorandum of Law in Support of Verified Petition and Complaint for DeclaratoryJudgment dated July 5, 2011.