| Matter of Sanantonio v Lustenberger |
| 2010 NY Slip Op 04205 [73 AD3d 934] |
| May 11, 2010 |
| Appellate Division, Second Department |
| In the Matter of Cathy Sanantonio, Appellant, v LouisLustenberger et al., Respondents. |
—[*1] Stecich Murphy & Lammers, LLP, Tarrytown, N.Y. (Marianne Stecich of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the Village of Irvington dated February 19, 2009, which, after a hearing, deniedthe petitioner's application to review an interpretation of the Village of Irvington Code by theVillage of Irvington Building Inspector, the petitioner appeals from a judgment of the SupremeCourt, Westchester County (Loehr, J.), entered July 6, 2009, which, in effect, denied the petitionand dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
"In a proceeding pursuant to CPLR article 78 to review a determination of a zoning board ofappeals, judicial review is limited to ascertaining whether the action was illegal, arbitrary andcapricious, or an abuse of discretion" (Matter of Arceri v Town of Islip Zoning Bd. of Appeals, 16 AD3d411, 412 [2005]; see Matter ofPecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]). As ageneral rule, zoning ordinances are in derogation of the common law and must be strictlyconstrued against the municipality (see Matter of Frishman v Schmidt, 61 NY2d 823,825 [1984]; Matter of Baker v Town ofIslip Zoning Bd. of Appeals, 20 AD3d 522, 523 [2005]). However, this rule is subject tothe limitation that where, as here, it would be difficult or impractical for a legislative body topromulgate an ordinance which is both definitive and all-encompassing, a reasonable amount ofdiscretion in the interpretation of the ordinance may be delegated to an administrative body orofficial (see Matter of Frishman v Schmidt, 61 NY2d at 825; Matter of Arceri vTown of Islip Zoning Bd. of Appeals, 16 AD3d at 412; Matter of Saglibene v Baum,246 AD2d 599, 600 [1998]). "Under a zoning ordinance which authorizes interpretation of itsrequirements by the board of appeals, specific application of a term of the ordinance to aparticular property is, therefore, governed by the board's interpretation, unless unreasonable orirrational" (Matter of Frishman v Schmidt, 61 NY2d at 825; see Matter of Conti v Zoning Bd. ofAppeals of Vil. of Ardsley, 53 AD3d 545, 547 [2008]).
Here, the challenged interpretation of the Village of Irvington Code (hereinafter the Code)made by the Zoning Board of Appeals of the Village of Irvington (hereinafter the ZBA) wasneither unreasonable nor irrational. The ZBA, which is authorized to interpret the provisions ofthe zoning chapter [*2]of the Code (see Village ofIrvington Code § 224-97 [A]), determined that the petitioner's proposed use of herresidence for professional hairdressing did not qualify as a "[h]ome occupation[ ]" within themeaning of section 224-8 (B) (1) of the Code. The Code expressly enumerates both barbershopsand beauty parlors as types of "[p]ersonal service stores" which are permitted in the "BusinessDistrict B" zoning district (Village of Irvington Code § 224-36 [A] [2]). The ZBAconsidered this zoning provision during its review of the petitioner's application. "[I]t is awell-settled principle of statutory construction that a statute or ordinance must be construed as awhole and that its various sections must be considered together and with reference to each other"(Matter of Armonas v Pratt, 138 AD2d 697, 699 [1988] [internal quotation marksomitted]; see McKinney's Cons Laws of NY, Book 1, Statutes §§ 97, 98,130). Since the rendering of beauty and hair care services is specifically authorized in a sectionof the Code setting forth permissible uses within a business district, it was neither unreasonablenor irrational for the ZBA to conclude that such services were not "[h]ome occupations" withinthe meaning of section 224-8 (B) (1) of the Code (see Matter of Cohen v Bohrer, 249AD2d 388, 389 [1998]; Matter of Saglibene v Baum, 246 AD2d at 600-601; Matterof Simon v Board of Appeals on Zoning of City of New Rochelle, 208 AD2d 931 [1994];cf. Matter of Arceri v Town of Islip Zoning Bd. of Appeals, 16 AD3d at 412-413).
The petitioner's remaining contentions are without merit. Rivera, J.P., Florio, Miller andAustin, JJ., concur.