Matter of Ohrenstein v. Zoning Board of Appeals of Town of Canaan, 500218.

• Decision Date: 19 April 2007
• Docket Number: 500218.
• Citation: 2007 NY Slip Op 03225,39 A.D.3d 1041,833 N.Y.S.2d 763
• Parties: In the Matter of MANFRED OHRENSTEIN et al., Appellants, v. ZONING BOARD OF APPEALS OF TOWN OF CANAAN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

39 A.D.3d 1041

833 N.Y.S.2d 763

2007 NY Slip Op 03225

In the Matter of MANFRED OHRENSTEIN et al., Appellants, v. ZONING BOARD OF APPEALS OF TOWN OF CANAAN et al., Respondents.

500218.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided April 19, 2007.

Appeal from a judgment of the Supreme Court (Hummel, J.), entered January 27, 2006 in Columbia County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Zoning Board of Appeals of the Town of Canaan granting a special use permit to respondents Nathan Hoogs and Elizabeth Hoogs.

Mugglin, J.

Respondent Zoning Board of Appeals of the Town of Canaan (hereinafter ZBA) approved the application of respondents Nathan Hoogs and Elizabeth Hoogs for a special use permit authorizing the production of hand-blown glass as a home occupation in an accessory building to be constructed on their property. Petitioners, who own property directly opposite the Hoogses, commenced this CPLR article 78 proceeding seeking to annul the special use permit, contending first that a glass-blowing studio is not a "home occupation" within the meaning of the zoning ordinance and is not in harmony with the neighborhood and, second, that the ZBA failed to make findings of fact in support of its decisions, and, in any event, the decision is not supported by evidence in the record. Supreme Court dismissed the petition and petitioners appeal.

We have previously held that "[a ZBA's] interpretation of the home occupation provisions of [its] zoning ordinance must be upheld if it is neither irrational nor unreasonable" (Matter of Criscione v City of Albany Bd. of Zoning Appeals, 185 AD2d 420, 420 [1992]; see Matter of Baker v Polsinelli, 177 AD2d 844, 846 [1991], lv denied 80 NY2d 752 [1992]; Matter of Criscione v Wallace, 145 AD2d 697, 698 [1988]; Matter of Aboud v Wallace, 94 AD2d 874, 875 [1983]; see also Matter of Mack v Board of Appeals, Town of Homer, 25 AD3d 977, 980 [2006]). Accordingly, our review of the ZBA's determination "is limited to an examination of whether it has a rational basis and is supported by substantial evidence" (Matter of Sullivan v City of Albany Bd. of Zoning Appeals, 20 AD3d 665, 666 [2005], lv denied 6 NY3d 701 [2005]; see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Committee to Protect Overlook, Inc. v Town of Woodstock Zoning Bd. of Appeals, 24 AD3d 1103, 1105 [2005], lv denied 6 NY3d 714 [2006]). Additionally, since zoning laws are in derogation of the common law, they must be strictly construed against the party seeking to enforce them and "`any ambiguity in the language employed must be resolved in favor of the property owner'" (Matter of Town of Johnsburg v Town of Johnsburg Zoning Bd. of Appeals, 299 AD2d 796, 799 [2002], quoting Matter of Bonded Concrete v Zoning Bd. of Appeals of Town of Saugerties, 268 AD2d 771, 774 [2000], lv denied 94 NY2d 764 [2000]; see Matter of Nicklin-McKay v Town of Marlborough Planning Bd., 14 AD3d 858, 863 [2005]).

Here, the Town's zoning law defines a "home occupation," in pertinent part, as follows:

"An occupation or profession conducted in any zone subject to the limitations which follow and which:

"a) Is customarily carried on within the finished living area of a single family residential dwelling or its accessory building ...

"c) Is clearly incidental and secondary to the use of the dwelling unit for residential purpose, and

"d) Which conforms to the following additional conditions:

"1. The occupation or profession shall be carried on wholly within the principal building or its accessory building" (Town of Canaan Zoning Law, art II, § 31).

Petitioners assert that the ZBA wrongly interpreted the definition of "home occupation" since the glass-blowing business cannot be considered either customarily associated with or incidental and secondary to the use of their property for residential purposes.

In our view, however, the evidence before the ZBA clearly supports its interpretation and application of the "home occupation" definition. The glass-blowing business will be conducted entirely within the accessory building to be constructed adjacent to the Hoogses' residence. This accessory building, although barn-like in appearance, will be painted and trimmed to match the residence. The fact that deliveries of products or supplies will be made to the accessory building does not undermine the ZBA determination that all of the operations will be conducted within the building, including the storage of materials. Nor is there any record support for petitioners' conclusion that the enterprise is so significant that it precludes characterization as a type of occupation or profession customarily associated with the use of residential property. Here, the business would be primarily...