DOB enjoined from revoking Church’s catering permit

Church contracted with caterer to run year-round private catering affairs. The Third Church of Christ, Scientist, located on Park Avenue and 64th Street in Manhattan, was concerned with its dwindling membership and concomitant lack of funds. Its building required major capital repairs to bring it up to code. In an effort to avoid selling the building, the Church entered into a long-term lease agreement with Rose Group Park Avenue LLC. Under the terms of the agreement, Rose Group could hold catered events at the Church over a period of twenty years at any time unless it conflicted with the Church’s use. In exchange, Rose Group would invest millions in capital repairs and pay rent and maintenance costs.

Before any of the catering began, the Church sought permission from the City. The New York City Department of Buildings issued a pre-consideration determination allowing catered events provided that the social hall was used and operated exclusively by the Church for its members. The Church sought a modification, claiming that there would be limited periods when the Church was not used by its congregation and a professional caterer would run catered events. Buildings accepted the modification, noting that the catered events under contract with the Church complied as an accessory use.

Believing that the necessary approvals had been granted, the Church and Rose Group executed the lease. When repairs got underway, neighbors began complaining to Buildings. Subsequently, Buildings withdrew its pre-consideration determination and revoked approval. It claimed that after learning of the extent and frequency of the professional catering activity, as compared to the use by the Church, it determined that approval should not have been granted. Buildings contended that Rose Group was planning to use the Church as a commercial event space. The Church sued, claiming that the catering was its means to preserve the building as a place of worship. The Church further claimed that Buildings’ actions imposed a substantial burden on the Church and treated it on less than equal terms with nonreligious institutions in the neighborhood.

District Judge Deborah Batts permanently enjoined Buildings from revoking the earlier accessory use approval to hold catering events under a contract with Rose Group. Judge Batts ruled that Buildings’ decision to revoke the Church’s approval while other food and catering businesses operating in the same neighborhood were only issued violations demonstrated that the Church was treated on less than equal terms. The court detailed the operations of restaurants at the neighboring Beekman Hotel and the Regency Hotel, both in violation of the Zoning Resolution. The judge also ruled that revocation was not a burden on the Church’s ability to have catered events. Judge Batts did not rule on whether the use of the building by Rose Group was an accessory use.

Third Church of Christ, Scientist v. Buildings, 07 Civ. 10962 (S.D.N.Y. Dec. 2, 2008) (Batts, J.).