Briar Hill Lanes, Inc. v. Town of Ossining Zoning Bd. of Appeals

• Decision Date: 05 July 1988
• Citation: 529 N.Y.S.2d 911,142 A.D.2d 578
• Parties: In the Matter of BRIAR HILL LANES, INC., Respondent, v. TOWN OF OSSINING ZONING BOARD OF APPEALS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 911

529 N.Y.S.2d 911

142 A.D.2d 578

In the Matter of BRIAR HILL LANES, INC., Respondent, v. TOWN OF OSSINING ZONING BOARD OF APPEALS, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 5, 1988.

Allen, Litt & Hulnick, Tarrytown (Arthur A. Litt, of counsel), for appellant.

Stanley I. Kirwin, P.C., Ossining, for respondent.

Before BROWN, J.P., and LAWRENCE, WEINSTEIN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Town of Ossining Zoning Board of Appeals (hereinafter the Zoning Board), dated May 12, 1986, which, after a hearing, inter alia, denied the petitioner's request that the proposed use for its property be permitted under the Code of the Town of Ossining § 200-18(A)(2), the Zoning Board appeals from (1) an order of the Supreme Court, Westchester County (Donovan, J.), entered October 23, 1986, which denied its motion to dismiss the petition, (2) an order of the same court (Colabella, J.), entered July 14, 1987, which granted the petition and annulled the Zoning Board's determination and (3) a judgment of the same court (Colabella, J.), dated August 3, 1987, entered thereon.

ORDERED that the appeals from the orders are dismissed and it is further,

ORDERED that the judgment is reversed, on the law, the order entered July 14, 1987, is vacated, the determination is confirmed, and the proceeding is dismissed on the merits; and it is further,

ORDERED that the appellant is awarded one bill of costs.

The appeal from the intermediate orders must be dismissed because no appeal lies as of right from an intermediate order in a CPLR article 78 proceeding (see, CPLR 5701[b][1] ) and because even an appeal by permission therefrom would have terminated with the entry of judgment in the proceeding ( see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the orders are brought up for review and have been considered on the appeal from the judgment.

The petitioner, Briar Hill Lanes, Inc., owns a three acre parcel at 588 North State Road in the Town of Ossining, New York, which is in an area zoned "GB General Business District". This zone permits a variety of uses. One of the permitted uses is: "Personal service stores, such as but not limited to barber shops, beauty parlors and tailors" (Code of the Town of Ossining § 200-18[A][2] ). The property is presently improved with a one story building used as a bowling alley, but the petitioner desires to erect another building on the parcel to be utilized as a "self-service mini-storage facility".

The Building Inspector of the Town of Ossining denied the petitioner's request for a building permit on the ground that the proposed use was not a permitted use under the Code of the Town of Ossining § 200-18. Thereafter, the petitioner applied to the Zoning Board requesting that that section of the code be interpreted as including the proposed storage facility within the scope of the phrase "personal service stores" or in the alternative, the petitioner requested a variance. In a decision dated May 12, 1986 the Zoning Board denied both requests noting, inter alia, that the list of permitt uses enumerated in the Code of the Town of Ossining § 200-18(A)(2) did not include the proposed use.

The petitioner then commenced the instant CPLR article 78 proceeding to review the Zoning Board's determination. The Supreme Court granted the petition, annulled the Zoning Board's determination and directed it to treat the petitioner's request for a self-service mini-storage facility as a permitted use. We reverse for several reasons.

We note that in annulling the Zoning Board's determination, the court failed to apply the rule that the words in a statute or ordinance are to be construed by giving them their natural and ordinary meaning ( see, Steinbeck v. Gerosa, 4 N.Y.2d 302, 308, 175 N.Y.S.2d 1, 151 N.E.2d 170, appeal dismissed 358 U.S. 39, 79 S.Ct. 64, 3 L.Ed.2d 45; Carroll v. Ingram, 59 A.D.2d 85, 397 N.Y.S.2d 220, lv. denied 43 N.Y.2d 642, 401 N.Y.S.2d 1027, 372 N.E.2d 580, appeal dismissed 44 N.Y.2d 948, 408 N.Y.S.2d 1029, 380 N.E.2d 352). Webster'sThird New International Dictionary of the English Language 1687 (1981 ed) defines the phrase "personal service" as "economic service involving the either intellectual or manual personal labor of the server rather than a salable product of his skill". This common and ordinary definition of the phrase is essentially the same interpretation given to it by the Zoning Board in construing the language of the section in question. Moreover, it clearly excludes the proposed storage facility, which does not involve any "intellectual or manual personal...