Opinion
April 26, 1990
Appeal from the Supreme Court, Columbia County (Connor, J.).
Since 1979, petitioner Patricia McIntyre has operated a beauty parlor on the first floor of a two-story structure owned by petitioner Traveler Real Estate, Inc. as a permitted nonconforming use in an R-2 zone of the Village of Kinderhook, Columbia County. In 1987, McIntyre applied for and was granted a building permit authorizing renovation of the second story of the premises. The renovations were completed and McIntyre installed body-toning equipment, consisting of two sets of seven toning tables, and was issued a certificate of occupancy by the village building inspector. Thereafter, a village resident, Marjorie Greene, appealed the issuance of the certificate of occupancy to respondent Zoning Board of Appeals and, after a hearing, the appeal was upheld upon the ground that McIntyre's body-toning business was not permitted in the absence of a use variance. Petitioners then commenced this CPLR article 78 proceeding, seeking to annul the determination of the Zoning Board. Supreme Court dismissed the petition and petitioners appeal.
The judgment should be affirmed. Respondents acknowledge that under the provisions of the village zoning ordinance (Code of Village of Kinderhook ch 97) relating to nonconforming uses, McIntyre was permitted to expand her existing beauty parlor business into the second floor of the premises. Furthermore, she was permitted to substitute the body-toning business, another nonconforming use "which is of the same or more restricted in nature" (Code of Village of Kinderhook § 97-29), for the beauty parlor business. However, under the Zoning Board's interpretation of the zoning ordinance, the establishment of a second nonconforming use in the building constitutes a prohibited extension and enlargement of the prior nonconforming use. "It is axiomatic that a zoning board of appeals has the power to interpret the provisions of the local zoning ordinance or code" (Matter of Rembar v. Board of Appeals, 148 A.D.2d 619, 620) and its interpretation will not be disturbed unless unreasonable or irrational (see, Matter of Frampton v. Zoning Bd. of Appeals, 114 A.D.2d 670). In our view, the Zoning Board's interpretation is by no means irrational, particularly in view of the clear "public policy to restrict nonconforming uses in order ultimately to eliminate them" (Matter of Aboud v. Wallace, 94 A.D.2d 874, 875; see, Matter of Cave v. Zoning Bd. of Appeals, 49 A.D.2d 228, 233-234, lv denied 38 N.Y.2d 710). Finally, there is more than adequate support in the record for the Zoning Board's determination that the body-toning business constitutes a separate enterprise and is not a mere accessory to the beauty parlor business (see, 1 Anderson, New York Zoning Law and Practice § 6.28, at 252 [3d ed]).
Section 97-27 of the Code of the Village of Kinderhook provides that "[a] nonconforming use shall not be extended, enlarged or structurally altered, but the extension of a lawful use to any portion of a nonconforming building which existed prior to * * * adoption of [the ordinance] shall not be deemed the extension of such nonconforming use".
Judgment affirmed, without costs. Kane, J.P., Casey, Weiss, Mercure and Harvey, JJ., concur.