| Matter of La Russo v Neuringer |
| 2013 NY Slip Op 02250 [105 AD3d 743] |
| April 3, 2013 |
| Appellate Division, Second Department |
| In the Matter of David La Russo,Appellant, v Clark Neuringer et al., Respondents. |
—[*1] Silverberg Zalantis, LLP, Tarrytown, N.Y. (Steven M. Silverberg and KatherineZalantis of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the ZoningBoard of Appeals of the Village of Mamaroneck dated May 5, 2011, which, after ahearing, denied the petitioner's application for an interpretation of the Village ofMamaroneck Code § 342-21 (B) (7), inter alia, that a racing pigeon constituted acustomary household pet and, in effect, determined that keeping a coop of 40 or moreracing pigeons on the petitioner's residential property was not a permissible accessoryuse, the petitioner appeals from a judgment of the Supreme Court, Westchester County(Warhit, J.), entered October 27, 2011, which denied the petition and dismissed theproceeding.
Ordered that the judgment is affirmed, with costs.
"In a proceeding pursuant to CPLR article 78 to review a determination of a zoningboard of appeals, judicial review is limited to ascertaining whether the action was illegal,arbitrary and capricious, or an abuse of discretion" (Matter of Arceri v Town of Islip Zoning Bd. of Appeals, 16AD3d 411, 412 [2005]; seeMatter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608,613 [2004]; Matter ofSanantonio v Lustenberger, 73 AD3d 934, 935 [2010]). As a general rule,zoning ordinances are in derogation of the common law and must be strictly construedagainst the municipality (see Matter of Frishman v Schmidt, 61 NY2d 823, 825[1984]; Matter of Sanantonio v Lustenberger, 73 AD3d at 935; Arceri vTown of Islip Zoning Bd. of Appeals, 16 AD3d at 412). "However, this rule issubject to the limitation that where, as here, it would be difficult or impractical for alegislative body to promulgate an ordinance which is both definitive andall-encompassing, a reasonable amount of discretion in the interpretation of theordinance may be delegated to an administrative body or official" (Matter of Arceri vTown of Islip Zoning Bd. of Appeals, 16 AD3d at 412; see Matter of Frishman vSchmidt, 61 NY2d at 825; Matter of Sanantonio v Lustenberger, 73 AD3d at935). The interpretation of the zoning board of appeals or the official governs unlesssuch interpretation is unreasonable or irrational (see Matter of Frishman vSchmidt, 61 NY2d at 825; Matter of Arceri v [*2]Town of Islip Zoning Bd. of Appeals, 16 AD3d at 412;see also Matter of Sanantonio v Lustenberger, 73 AD3d at 935; Matter of Falco Realty, Inc. vTown of Poughkeepsie Zoning Bd. of Appeals, 40 AD3d 635, 636 [2007]; Matter of 151 Rte. 17M Assoc.,LLC v Zoning Bd. of Appeals of Vil. of Harriman, 19 AD3d 422, 424 [2005]).
Here, the challenged interpretation of the Village of Mamaroneck Code (hereinafterthe Code) made by the Zoning Board of Appeals of the Village of Mamaroneck(hereinafter the ZBA) was neither unreasonable nor irrational.
The ZBA determined that the petitioner's proposed use of a coop in his backyard tokeep and raise 40 or more racing pigeons, or "racing homers," did not qualify as keeping"a reasonable number of customary household pets" within the meaning of section342-21 (B) (7) of the Code. In reaching this determination, the ZBA considered recordevidence that these pigeons would be specially bred, trained, and handled to compete inraces, at least some of which may result in cash prizes. There was evidence that only thepetitioner and his father would handle the vast majority of the pigeons, the "race birds."Other members of the household, including the petitioner's children, would not be able tohandle the "race birds" because those birds are too sensitive and valuable. Moreover,there was evidence that the pigeons that were too old, slow, or weak to race would besold or destroyed. Additionally, nothing in the record revealed that, at or near the time ofthe petitioner's application, any other residents of the Village of Mamaroneck kept 40 ormore pigeons on their residential lots, for any purpose.
Based on the record evidence, it was neither unreasonable nor irrational for the ZBAto conclude that 40 or more racing pigeons, as contemplated by the petitioner, did notconstitute a "reasonable number of customary household pets" within the meaning ofsection 342-21 (B) (7) of the Code.
Additionally, the respondent John Winter, Village of Mamaroneck BuildingInspector, is not a proper party to this proceeding because he did not render the finaldetermination denying the petitioner's application, and, for that reason, the proceedingwas properly dismissed insofar as asserted against him (see Matter of Navaretta v Town ofOyster Bay, 72 AD3d 823, 826 [2010]).
The petitioner's remaining contentions are without merit.
Therefore, the Supreme Court properly denied the petition and dismissed theproceeding. Eng, P.J., Dickerson, Hall and Lott, JJ., concur.