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In re Krause

Supreme Court of New York, Second Department

May 22, 2013

In the Matter of Richard G. Krause, et al., appellants,
v.
Joann Piccozzi, etc., et al., respondents. (Index No. 35379/10)

Donald J. King, Kings Park, N.Y., for appellants.

Laury L. Dowd, Town Attorney, Shelter Island, N.Y., for respondents.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, SHERI S. ROMAN, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Shelter Island dated September 22, 2010, which, upon a request by the Building Permits Coordinator of the Town of Shelter Island for an interpretation of section 133-10(E)(2)(c) of the Code of the Town of Shelter Island, after a hearing, determined that a proposed lawnmower repair business was a permitted "home occupation" in the relevant residential zoning district under section 133-10(E)(2)(c) of the Code of the Town of Shelter Island, the petitioners appeal from a judgment of the Supreme Court, Suffolk County (Cohen, J.), entered May 30, 2012, which denied the petition and dismissed the proceeding.

ORDERED that the appeal is dismissed as academic, with costs.

In August 2010, the Building Permits Coordinator of the Town of Shelter Island requested, pursuant to section 133-32(F)(1) of the Code of the Town of Shelter Island (hereinafter the Town Code), an interpretation from the Zoning Board of Appeals of the Town (hereinafter the Board) as to whether a proposed lawnmower repair business was a permitted "home occupation" in the relevant residential zoning district under section 133-10(E)(2)(c) of the Town Code. After a public hearing, on September 22, 2010, the Board determined that the proposed lawnmower repair business was a permitted home occupation in the relevant residential zoning district under that provision of the Town Code.

Thereafter, the petitioners, owners of property adjacent to the proposed lawnmower repair business, commenced this CPLR article 78 proceeding to review the Board's determination. The Supreme Court concluded that the Board's interpretation was rational, and denied the petition and dismissed the proceeding in a judgment entered May 30, 2012.

The respondent asks us to take judicial notice of the fact that on April 5, 2012, the Town amended section 133-10(E)(2)(c) of the Town Code to specifically provide that "[l]awn and garden equipment repair and maintenance" is a permitted home occupation in the relevant zoning district (Code of the Town of Shelter Island § 133-10[E][2][c][13]). This Court may take judicial notice of matters of public record (see e.g. Matter of Winona Pi. [ Winona Pa. ], 86 A.D.3d 542, 543). Generally, a court must apply the zoning ordinance as it exists at the time a decision is rendered (see Matter of Pokoik v Silsdorf, 40 N.Y.2d 769, 772-773; Matter of Demisay, Inc. v Petito, 31 N.Y.2d 896, 897; Matter of BBJ Assoc., LLC v Zoning Bd. of Appeals of Town of Kent, 65 A.D.3d 154, 158-159), and the special facts exception to this rule is inapplicable here (see Matter of Nathan v Zoning Bd. of Appeals of Vil. of Russell Gardens, 95 A.D.3d 1018, 1019-1020; Matter of Golden Horizon Terryville Corp. v Prusinowski, 94 A.D.3d 888; Matter of D'Agostino Bros. Enters., Inc. v Vecchio, 13 A.D.3d 369, 370). Accordingly, applying the zoning ordinance as it exists at this time, the amended zoning provision is controlling and has rendered this appeal academic.

In light of our determination, we need not reach the petitioners' remaining contentions.

DILLON, J.P., CHAMBERS, AUSTIN and ROMAN, JJ., concur.


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