Posted by: Patricia Salkin | April 6, 2014

NY Appellate Court Upholds Determination that Owner of Exotic Animals Was Operating an Illegal Home Occupation

Following notification by the Town code enforcement officer to Salton that he was operating an unauthorized home occupation as he was keeping exotic animals (including 3 tigers and 2 leopards) on his property under government licenses that required the exhibition of the large cats and allegedly collecting viewing fees from the public, he appealed to the ZBA who upheld the determination of the code enforcement officer. The trial court dismissed the petition to appeal and Salton appealed again.

The appellate court began with the Town’s zoning law, which provides in relevant part, “[h]ome occupations are defined as businesses where the owner resides on the property and where the activities of the business are conducted inside the residence, a legally constructed accessory building, or at off-site locations.” At issue was whether Salton was operating a home occupation and if so, whether his actions were grandfathered in by predating the applicable zoning ordinance.

The Court found that Salton was operating a business based on the following: he lives on the same property that contains the cat cages; despite the fact that he has no employees, does not file business taxes, has no business insurance and makes no profit as he claims to not charge people to view the animals, he did list a business name on one of his licenses, and he has a business card listing him as the owner and he lists prices for adults and children to see the animals.

Further, the court found that the cages were a legally constructed accessory building since the language in the applicable zoning ordinance says that the word “building” also includes a “structure,” and the court said, “a cage that is built into the ground – like the cages apparently are – can be considered a structure, and the cages are on the same lot as and incidental to the use of petitioner’s residence.” Further, the Court said that the code enforcement office did not assert that the cages were not legally constructed. Therefore, since Salton was “carrying on business activities in a legally construed accessory structure, he is operating a home occupation.”
Finally, Salton was not carrying on a legal use prior to the enactment of the zoning ordinance as was demonstrated by the dates his licenses to legally operate were issued.

Salton v Town of Mayfield Zoning Board of Appeals, 2-13 WL 1316363 (NYAD 3 Dept. 4/3/2014)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/decisions/2014/516523.pdf


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