Posted by: Patricia Salkin | August 23, 2019

NY Appellate Court Upholds Requirement for Use Variance and Conditions for Dog Training Facility and Finds it is not a Home Occupation

Petitioners wished to lease their land for the operation of a dog training facility in an R-2 Residential District where such use was not specifically permitted.  The zoning board determined a use variance was required, and in granting one, attached a condition that the business could not have more than six dogs at any one time and it could not provide overnight boarding.  The Court below upheld the determination.  On appeal, Petitioners claimed they did not need a use variance and that a condition could not be imposed. The appellate court disagreed with the Petitioners, pointing out that the use was not allowed in the District. Further, the Court concluded that “the proposed dog training business does not qualify as a ‘customary home occupation’ permitted in an R–2 district.”  The Court also noted with respect to the home occupation argument that, “petitioners do not dispute that the proposed dog training business is not the sort of occupation customarily carried on in a dwelling unit, and our conclusion is further justified by the fact that petitioners here are not attempting to carry on a typical home occupation but instead propose to lease a portion of their property, but not the dwelling, for use by others…” The Court held that, “Because the proposed business is not permitted in an R–2 district, respondent properly required petitioners to obtain a use variance and was authorized to place on that variance such ‘reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property[,] … consistent with the spirit and intent of the zoning ordinance or local law, … [and] imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community’” (Town Law § 267–b [4] ).”

Lastly, the Court rejected the argument that “the conditions placed on their use variance are improper because the zoning code allows one “animal unit” per 40,000 square feet of “open, unused land” in R–2 districts (Ordinance § 180–16[D][2] ),” explaining that, “The zoning code’s allowance for a certain ratio of “animal units” to “unused land” explicitly applies to “customary agricultural operations,” and thus does not apply to petitioners’ proposed dog training business.”

McFadden v. Town of Westmoreland Zoning Board, 2019 WL 3955311 (NYAD 4 Dept. 8/22/2019)

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