A recent Fourth Department decision upheld a determination by the Town of Westmoreland Zoning Board of Appeals (the “Westmoreland ZBA” or the “Board”) finding that a dog training business is not a “customary home occupation” within the meaning of the local zoning code.
Matter of McFadden v Town of Westmoreland Zoning Bd. presents a strikingly similar issue to that in a case from the Town of East Hampton, discussed earlier this year by Long Island Land Use and Zoning Blog Contributor Anthony S. Guardino. In the East Hampton case, the Town of East Hampton Zoning Board of Appeals (the “East Hampton ZBA”) determined that a home-based dog-walking and pet-sitting business was a legal “home occupation” under the applicable zoning code. In so deciding, the East Hampton ZBA found that such use met all of the regulations of the zoning code permitting home occupations, and it rejected the argument that the business would change the character of the neighborhood.
However, what is permitted in one municipality may be prohibited in another. McFadden effectively illustrates that point. In McFadden, the Petitioners are the owners of property in the upstate New York Town of Westmoreland (the “Town”). They sought to lease a portion of their property for use as a dog training business. The Westmoreland ZBA determined that such use did not meet the definition of a “home occupation” under the Town’s zoning code, and would only be permitted with a use variance. The Westmoreland ZBA granted the use variance application subject to restrictions, such “that the business could entertain a maximum of six dogs at one time and could not provide for overnight boarding.” The Petitioners brought an Article 78 proceeding seeking an order annulling the Board’s determination, arguing that no variance was required because the use conformed to existing code. The Supreme Court denied the Petition, and the Petitioners appealed.
According to the Westmoreland Town Code a “home occupation” is “[a]n occupation or profession which . . . [i]s customarily carried on in a dwelling unit or in a building or other structure accessory to a dwelling unit”, subject to several other requirements and conditions (see Westmoreland Town Code § 180-2 [“Home Occupation”]). Here, the Petitioners’ stated intention to lease their property for use as a dog training business rather than running the business themselves, undermined their argument in support of a “home occupation.” Furthermore, the Court distinguished the Petitioners’ proposed commercial use of the property from the “ability to keep certain personal animals on their property as pets or livestock,” which is permitted. Notably, that distinction is at odds with the position taken by the East Hampton ZBA, which effectively equated the two.
On appeal, the Fourth Department ultimately affirmed the lower court’s order upholding the Board’s determination that a dog training business was not one “customarily carried on in a dwelling unit,” and thus did not meet the applicable definition of “home occupation.” Therefore, the Board’s requirement and issuance of the use variance and such reasonable restrictions was proper.
The different outcomes in these two cases, interpreting similar language in zoning codes, provide an example of how a particular fact can greatly impact a zoning determination. It is important to be cognizant of all material facts when exercising property rights.