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NIAGARA FALLS – State Supreme Court Justice Frank Caruso signed an order Friday blocking the city’s effort to keep a Ferry Avenue homeless shelter from housing people overnight.

The temporary restraining order came as the Niagara Gospel Rescue Mission, operators of the shelter at 1023 Ferry Ave., sued the city to overturn its April 8 order preventing overnight housing at the men’s shelter.

The mission’s attorney, Michele G. Bergevin, said the lawsuit is scheduled to be argued before Caruso on May 14.

The building was housing eight to 12 men on an average night before the city prevented that use, according to Bergevin.

The question is whether the city’s zoning ordinance barred the use of the house as a homeless shelter at the time it opened in July 2010.

Bergevin and the mission’s executive director, Shaun Smith, said the law at the time was silent on the topic of homeless shelters. Bergevin said the zoning ordinance wasn’t amended to stop homeless shelters in residential zones until 2012, so the Ferry Avenue site should be “grandfathered” as a pre-existing legal use.

“That’s a matter of interpretation,” said Inspections Director Dennis F. Virtuoso. He had said late last year that the shelter was “grandfathered” and legal.

Friday, he referred the question to the city’s Law Department. Corporation Counsel Craig H. Johnson did not return a call seeking comment.

But the city’s sign and zoning officer, Patrick Ciccarelli, contended in the April 8 cease-and-desist letter that the shelter was misinterpreting a February 2010 letter of his as granting permission for a homeless shelter. That letter said the existing certificate of occupancy for 1023 Ferry “indicates a transient use.” It also said if the operation was defined as a hotel or motel, that wouldn’t be allowed.

On April 8, Ciccarelli wrote that the mission converted the house from an adult care facility into a homeless shelter without permission, which meant it was illegal all along.

The issue blew up several months ago, when members of the Memorial Park Block Club complained to the city that the shelter was a “transient use,” which is not allowed in a residential zone. The shelter is in an area zoned for multiple dwellings.

The mission’s lawsuit contends that the shelter is not a “transient use” but rather should be considered a group home, which would be allowed under the zoning law.

Smith said he originally wanted a women’s and children’s shelter at the site, and is looking for another location for the men’s shelter, which also has a meal program that serves about 500 meals a week.

“I think it’ll be more palatable for our block club neighbors,” Smith said. “This is an opportunity our city and our community can take advantage of. …We want to move forward with the help of the city and hope God finds a way where there is no way.”

He said he runs a “dry shelter,” meaning the men are tested for alcohol and drugs.

email: tprohaska@buffnews.com