Opinion
September 23, 1957
John F. Coffey for petitioners.
Hubbell Davis for respondent.
This is an application for an order pursuant to article 78 of the Civil Practice Act reviewing and annuling a determination of the respondent wherein and whereby an order of the building inspector of the Incorporated Village of Garden City, directing the petitioners to discontinue the conduct of "ceramic classes" on their premises, was affirmed.
The petitioners reside in a one-family dwelling at 77 Bayberry Avenue. The premises are in an R-6 zone. The petitioners conduct classes in ceramics in the basement of their home. These classes are held on Monday, Tuesday and Friday from 3:30 P.M. to 4:30 P.M. and on Wednesday from 1:30 P.M. to 2:30 P.M. and from 3:30 P.M. to 4:30 P.M. They are also held from 8:00 P.M. until 9:30 P.M. on Monday, Tuesday and Thursday. During the day the average attendance at a class is "twelve to fifteen" children, and is "less than fifteen" adults per evening.
On June 12, 1957 the building inspector directed the petitioners to discontinue the use as contrary to the Zoning Ordinance of the village. The petitioners appealed to the respondents for a revocation of the building inspector's order on the ground that theirs was a permitted use under the ordinance. After a hearing on July 30, 1957, the respondents determined that "the use is not one of those permitted in a residential area as a matter of right under section 500 of the Ordinance" and affirmed the building inspector's order.
The pertinent regulation under section 500 of the ordinance permits in an R-6 district "office, studio or occupational room of a physician * * * artist * * * or a similar professional person when located in the same building in which the practitioner resides and is merely incidental to the primary residential use".
The respondents contend that the petitioners are conducting a "private school"; whereas the petitioners urge that they are "artists" who are practicing their art, as permitted under the ordinance quoted above; and that in connection with such practice share their enthusiasm with others in the conduct of art classes on a nonprofit basis. The only charge made is "for materials ultilized by those sharing in the enjoyment of this art".
In support of the appeal to the respondents, a petition signed by many residents of Garden City was submitted. This petition urged the respondents to permit "Mrs. Gladys Schweizer to continue the conduct of a ceramic school on the premises." (Emphasis supplied.) The petitioners contended that it was not a school which would require an application to the respondents for an exercise of their discretion under the ordinance.
However laudable it may be considered by those who may be enjoying the benefits of the petitioners' teaching, it must be held that the respondents' determination rests on a reasonable basis. A school "has been defined as a place where instruction is imparted to the young ( State v. Peterman, 32 Ind. App. 665, 70 N.E. 550), `Any place or means of discipline, improvement, instruction, or training' ( Matter of Sanders, 53 Kan. 191); `it is the organization, the union of all the elements in the organization to furnish education in some branch of learning — the arts or sciences or literature.' ( Smith v. Donahue, 202 App. Div. 656, 664.)" ( Matter of Flagg v. Murdock, 172 Misc. 1048, 1050.) In the Flagg case, the teaching of dancing in the basement of an apartment house was considered a school. In People v. Collins ( 191 Misc. 553, 554) the defendant was regarded as operating a school when she "took into her home each morning from Monday through Friday up to fourteen children of pre-school age, and kept them until approximately noontime. In her back yard she had a play yard, and in clear weather the children were allowed to play under supervision. In rainy or inclement weather, they were taken inside where a room equipped for that purpose was maintained."
Webster's New International Dictionary (2d ed.) defines a school as "A place for instruction in any branch or branches of knowledge; an establishment for imparting education".
The fact that the petitioners received no payment from their students does not warrant a different label for their activity. While contending that they are not operating a school, the petitioners nevertheless urge that they may teach art under the ordinance. The ordinance does permit an artist or similar professional person to have an office or studio in his home, but it does not permit, even under a strained construction of the language used, the teaching activity involved here.
If we were concerned with an occasional gathering of persons interested in the subject of ceramics who merely discussed their problems or experiences it may very well be that any zoning ordinance which prohibited such gatherings would be ruled invalid; but here we have a regular schedule of classes with many students in attendance.
A zoning ordinance which is concerned with maintaining the quiet, uncrowded, atmosphere expected in a residential district may not be held unreasonable because it requires the applicant for the conduct of such classes to satisfy the Board of Appeals that such use will not be detrimental to the neighborhood or to the residents thereof; or that the use will not create a hazard to health, safety, morals, or the general welfare.
Accordingly, the application is denied.
Settle order on notice.