45 A.D.2d 1006 | N.Y. App. Div. | 1974
Judgment of the Supreme Court, Suffolk County, entered February 8, 1974, reversed, on the law, without costs, and petition dismissed. The judgment held that the operation of a karate school in residential premises is a permitted use under the applicable town ordinance, but it remanded the application to the Zoning Board of Appeals (ZBA), for the purpose of establishing conditions as a prerequisite to such operation. Petitioner, Joseph Carbonara, and his wife are co-owners, as tenants by the entirety, of a residence at East Northport in the Town of Huntington. It is situated in an R-5 residential district, which requires a minimum area of 5,000 square feet and a 50-foot minimum width. The property ,is 50 feet by 150 feet for a total of 7,500 square feet. Carbonara applied for a permit to operate a karate school in the lower portion of his split level dwelling as a home occupation. The area planned to. be used for the enterprise contains 600 square feet of a- total in the house of 2,150. Upon denial of the application by the Building Inspector, Carbonara appealed to the ZBA. “Home occupations” as contained in the zoning ordinance of the Town of Huntington under definitions (eh. 62, § 62-2.1), comprise, but are not limited to, the following: “ (a) Artist’s studio but not including an art gallery; (b) Dressmaking; (c) Professional Office of a physician, dentist, lawyer, architect, engineer, accountant, or other similar occupation deemed similar by the Zoning Board by reason of education, training and experience; (d) Teaching with musical instruction limited to one or two pupils at a time.” Carbonara’s position is that the teaching of karate is a home occupation similar to that permitted by (d) above. He points out that dancing schools have been áccorde4 a permitted use status through judicial interpretation of accessory uses (Matter of Delpriore v. Ball, 281 App. Div. 214, affd. 306 N. Y. 775); and that, by extension, his project should receive like treatment. The rationale for permitting home occupations long antedates the creation of zoning ordinances. For as' stated in 73 ALR 2d 443: “ The doctor, dentist, lawyer, or