Opinion
July 21, 1986
Appeal from the Supreme Court, Westchester County (Palella, J.).
On the court's own motion, the notices of appeal and cross appeal are treated as applications for leave to appeal, said applications are referred to Justice Rubin, and leave to appeal is granted by Justice Rubin.
Order and judgment dated September 25, 1984, reversed insofar as appealed from, on the law, determination confirmed, and proceeding dismissed on the merits.
Appeal from the order entered June 11, 1985, dismissed as academic, in light of the determination on the appeal from the order and judgment dated September 25, 1984.
One bill of costs is awarded to the members of the board and the intervenor appearing separately and filing separate briefs.
In 1983, the intervenor Daytop purchased a parcel of real property which was improved with a two-story building and which is situated within the Central Avenue Mixed Use Impact District of the Town of Greenburgh. Daytop subsequently applied to the town building inspector for a change of permitted use permit in order to use the property as a counseling and teaching center for adolescents with a history of drug abuse, the overwhelming majority of whom were involved in the use of alcohol and marihuana. The application was denied because the building inspector concluded that the proposed use was not a permitted use under the zoning ordinance. Daytop then appealed to the board solely on the issue of whether the proposed use was permitted. The board, after conducting public hearings on two separate occasions, concluded that Daytop's proposed use of the property was permitted as a professional office use under section 65.3.41.2 (1) of the town's zoning ordinance. The petitioners thereafter commenced the instant CPLR article 78 proceeding to review the board's determination, and Special Term granted the petition to the extent of annulling the board's determination and remitting the matter to the board for a hearing and de novo determination. Special Term's order and judgment forms the basis for the current appeals. We conclude that reversal and dismissal of the proceeding on the merits are warranted.
Section 65.3.41.2 (1) of the ordinance expressly permits the use of property located within the district for professional office uses. In determining that Daytop's proposed use fell within this category, the board relied upon section 65.2 of the ordinance, which defines "professional office" as follows: "An office for a person who practices an occupation in which some department of science or learning is applied to the affairs of others, either advising or guiding them, or otherwise serving their interests or welfare in the practice of an art founded on such knowledge. The word `professional' implies attainments in knowledge as distinguished from mere skill, and the application of such knowledge to serve others. A professional license issued by the State of New York or validated membership in a national professional organization may be considered sufficient, but not necessary, to establish the status of a professional person". Contrary to Special Term's findings, we conclude that the board's interpretation and application of the ordinance in this case was not erroneous.
It is firmly established that a zoning board's determination may only be set aside where the record reveals illegality, arbitrariness or abuse of discretion (see, Matter of Frishman v Schmidt, 61 N.Y.2d 823; Matter of Cowan v Kern, 41 N.Y.2d 591; Human Dev. Servs. v Zoning Bd. of Appeals, 110 A.D.2d 135, affd 67 N.Y.2d 702). Moreover, a zoning board's interpretation of the ordinance which it administers may not be disturbed absent a showing that the interpretation is irrational or unreasonable (see, Matter of Frishman v Schmidt, supra; Matter of Gaona v Town of Huntington Zoning Bd. of Appeals, 106 A.D.2d 638, appeal discontinued 65 N.Y.2d 691; Matter of Albert v Board of Stds. Appeals, 89 A.D.2d 960, appeal dismissed 59 N.Y.2d 673). We discern no irrationality or arbitrariness in the board's decision in this case, as it was supported by substantial evidence. Indeed, the hearing record contains uncontroverted testimony that the Daytop facility is both licensed and supervised by the New York State Division of Substance Abuse Services, and is staffed with an amalgam of licensed teachers, social workers, psychologists, psychiatrists and "intensely trained paraprofessionals". Additionally, the services it offers include education, psychiatric counseling, and therapy. Hence, the record fully supports the board's determination that Daytop's proposed use was permitted under the ordinance as a professional office use, and Special Term erred in finding to the contrary.
Similarly unpersuasive is Special Term's finding that the board was required to consider both the impact of the Daytop center upon surrounding property values and the possibility of alternative sites for the proposed use. Section 65.3.41.1 of the town zoning ordinance expressly provides that in enumerating the permitted uses within the district, land values had already been taken into account. Moreover, since Daytop sought neither a variance nor any type of special permit in this case, the board was not required to explore the issues of property value impact or alternative sites. Finally, the express inclusion of professional office uses in the list of uses which are permitted within the district strongly suggests that a legislative determination has already been made that such uses will not be detrimental to the surrounding area (see generally, Matter of Lee Realty Co. v Village of Spring Val., 61 N.Y.2d 892; Matter of Pleasant Val. Home Constr. v Van Wagner, 41 N.Y.2d 1028; Matter of North Shore Steak House v Board of Appeals, 30 N.Y.2d 238; RPM Motors v Gulotta, 88 A.D.2d 658). Therefore, Special Term's order and judgment must be reversed.
In light of our determination, we find it unnecessary to review the issues raised by Daytop's appeal from the denial of its motion to dismiss the proceeding, which was treated as a motion for renewal. We have considered the remaining contentions of the petitioners and find them to be without merit. Brown, J.P., Weinstein, Rubin and Lawrence, JJ., concur.