By Order to Show Cause (Lynch, J.) dated March 12, 2013 returnble March 21, 2013, petitioner commenced this proceeding to obtain a stay pursuant to Albany City Code §375-12 precluding enforcement of a March 8, 2013 Cease and Desist Order issued by the City of Albany's Division of Building and Regulatory Compliance.

Some background is in order. By determination dated May 28, 2003, the City's Board of Zoning Appeals (BZA) held that the petitioner's proposed use of the Washington Avenue Armory for sporting events and concerts fit the definition of "Auditoria", a principally permitted use in this commercial-office district (see Exhibit "A" annexed to petition). In October 2012, the City issued three Cease and Desist Orders to prohibit certain events the City maintained fell outside the permitted use (see Exhibit "E" annexed to respondents' Notice of Motion). The parties thereafter entered into a "Memorandum of Understanding (MOU) dated November 27, 2012, by which, in part, petitioner agreed to submit an application to the BZA for a further interpretation/clarification as to the permitted uses as an "Auditoria" (see Exhibit "B"). Petitioner submitted the application on December 13, 2012 (see Exhibit "C").

With the December 13, 2012 application still pending, the March 8, 2013 Cease and Desist Order was issued, prohibiting the use of the armory "for the purposes of a Rave Party' or similar function" (Exhibit "E"). By application dated March 11, 2013, petitioner appealed this order to the BZA and again requested an interpretation of the term "auditoria" under section 375-12 of the zoning ordinance (Exhibit "F"). Citing to Albany City Code §375-17, petitioner asserted that the appeal effected a "stay" of the March 8, 2013 order (Id.) By letter dated March 12, 2013, Commissioner Jamison certified to the BZA that "the operation of the premises for Rave' events causes an imminent threat to life and property" (Exhibit "H").

Pursuant to City Code §375-17, an appeal of an action effects a stay,

"unless the Administrator certifies to the Board that, by reasons of facts

stated in the certificate, a stay would cause imminent peril to life or property.

When such certificate is filed, proceedings shall not be stayed unless a restraining

order is issued by the Supreme Court".

By this proceeding, petitioner seeks to obtain a restraining order under §375-17 to stay enforcement of the March 8, 2013 Cease and Desist Order pending a resolution of its March 11, 2011 appeal. [*2]

By Decision dated March 13, 2013, the BZA rendered the following determination on petitioner's December 13, 2012 application:

"Therefore, the Board interprets the meaning of an "Auditoria" by

its plain definition and in accordance with its prior 2003 interpretation.

An "Auditoria" is a part of a building where an audience sits or a room, hall

or building used for gatherings, which includes activities such as sporting

events and concerts that involve actual fixed seating for the persons

attending. Furthermore, the Board finds that use of the facility for a "Rave"

party, nightclub, dance club or other similar event is excluded from the

definition of an "Auditoria", and thus an illegal use in a C-O Zoning District"

(see Exhibit "H" annexed to respondents' Notice of Motion).

Respondents maintain this determination renders the instant proceeding moot. Petitioner contends, however, that the BZA lacked jurisdiction to render the determination, contending that their December 13, 2012 appeal was not based on any of the triggering events that would invoke the BZA' jurisdiction under General City Law §81-a[4] or City Code §375-14A. As such, petitioner maintains that its request for a stay of the March 8, 2013 Cease and Desist Order remains ripe for review.

General City Law §81-a[4] provides, in pertinent part, as follows:

"Unless otherwise provided by local law or ordinance, the jurisdiction

of the board of appeals shall be appellate only and shall be limited to hearing

and deciding appeals from and reviewing any order, requirement, decision,

interpretation, or determination, made by the administrative official charged

with the enforcement of any ordinance or local law adopted pursuant to this

article". (Emphasis added)

Correspondingly, City Code §375-14 provides, in pertinent part, as follows:

"The Board shall have the following powers and duties:

A. To hear and decide appeals from any orders, requirements, decisions

or determinations made by the Administrator...The Board may

(1) Interpret the provisions of this chapter..

B. To determine if a use not specifically listed is consistent with the

enumerated uses in one or more specified districts (emphasis added).

Under paragraph 25 of the MOU, petitioner "[agreed] to submit an [*3]

application to the Board of Zoning Appeals for the City of Albany for a further interpretation/clarification as to which events/uses constitute a permitted use of the premises as an Auditoria' under the City of Albany Ordinance within 20 days of the date of this Agreement" (Exhibit "B" annexed to petition). Petitioner complied by application dated December 13, 2012, expressly acknowledging that the application was "required" under the MOU (Exhibit "C" annexed to petition).

Considering that the MOU was signed by Commissioner Jamison, the administrator charged with enforcing the City Code, and that petitioner was required to file the appeal under the MOU, the Court finds that the statutorily-prescribed "requirement" was established to invoke the jurisdiction of the Board (see General City Law §81-1[4]; City Code §375-14A; Matter of Rinaldi v. Zoning Board of Appeals of Town of Stillwater, 23 AD3d 810; Matter of Gaylord Disposal Serv. v. Zoning Board of Appeals of Town of Kinderhook, 175 AD2d 543, 544). That the MOU called for the Commissioner to revoke the October, 2012 Cease and Desist Orders (which the Commissioner acknowledged were then revoked) does not compel a different result. The operative point here is that petitioner was required to submit the appeal as a condition of the MOU. Alternatively, jurisdiction has been extablished under City Code

§375-14B, since the issue presented was whether the event described as a "rave party" and other like events, which are not listed as approved uses in the code, are consistent with the "auditoria" use allowed under Code §375-72[A][1].

Given that the BZA's March 13, 2013 determination effectively renders an interpretation as to the scope of the permitted "auditoria" use, the Court agrees with respondents that the instant proceeding is now moot and should be dismissed. In so holding, the Court recognizes that the BZA's March 13, 2013 determination concerned petitioner's December 13, 2012 application. By its own terms, however, petitioner's March 11, 2013 application "supplements the Armory's prior application of December 13, 2012, seeking an interpretation of the term

Auditoria'" (Exhibit "F"). Since an interpretation has now been issued, the proceeding to obtain a stay pending the issuance of an interpretation has been rendered academic.

Accordingly, respondents motion to dismiss the petition is granted, without costs.

This memorandum represents the Decision and Order of this Court. The original Decision and Order is being mailed to the attorney for respondents. The original papers are being sent to the AlbanyCounty Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. [*4]

Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

DATED:March 26, 2013

Albany, New York

________________________________________

Hon. Michael C. Lynch

Justice of the Supreme Court