Agenda - Planning Commission - 06/07/2007

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Zoning Bulletin Home Business-Neighbor challenges special use permit for glass-blowing business Claims business does not fit definition of 'home occupation' Citation: Ohrenstein v. Zoning Bd. of Appeals of Town of Canaan, 2007 WL 1147345 (N. Y. App. Div. 3d Dep't 2007) NEWYORK (04/19/07)-Hoogs lived in the town of Canaan. He ap- plied to the zoning board of appeals for a special use permit to operate a business from an accessory building that he wanted to . construct on his property. The business, which would produce blown-glass items for wholesale, was approved under the tow-n's home occupation provision of the zoning code. In relevant part, the code defined a home occupation as: "An occupa- tion or profession.. .which: a) Is customarily carried on within the fin- ished living area of a single family residential dwelling or its accessory building, ...c) Is dearly incidental and secondary to the use of the dwell- ing unit for residential purpose, and d) Wbich conforms to the following additional conditions: 1. The occupation or profession shall be carried on wholly within the principal building or its accessory building. " Hoogs' neighbor, Ohrenstein, asked the court to review the board's decision granting the special use permit. Ohrenstein argued that Hoogs' business, which would require the use of a special oven and other equip- ment, did not conform to the part of the ordinance that stated a home occupation had to be a "customarily associated vvith" or "clearly inci- dental and secondary" to the use of the property as a residence. The trial court dismissed Ohrenstein's claims, and he appealed. Decision: Affirmed. On appeal, Ohrenstein argued again that the glass-blowing business did not qualify as a home occupation under the code, and he added that it was inharmonious with the neighborhood. Further, he claimed that the board's decision should be set aside because it did not contain specific factual findings in support of the special use permit. Although the appeals court agreed that the board did not include fac- tual findings in its w:rltten decision, that was not enough to reverse it. The court could also look to the record to see if there were factual find- ings made-for example, during the hearing process-and whether the conditions under which special use permits could be granted existed. The appeals court found that there was sufficient evidence before the board that the proposed business fit the definition of a home occupation. With regard to the arguments against that finding, neither the build- ing nor the equipment was so unusual as to require fur'-iller action be- yond the requested permit. The accessory building would look like an attached barn, and would be painted to match the house on the prop- 4 192