Schonbrun v. Board of Zoning Appeals of North Hempstead

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of North Hempstead, dated October 6,1995, which, after a hearing, denied the petitioner a use variance or a permit pursuant to Town of North Hemp-stead Code § 70-25, and an action for a judgment declaring unconstitutional Town of North Hempstead Code § 70-231, the appeal is from an order and judgment (one paper), of the Supreme Court, Nassau County (Dunne, J.), dated May 21, 1996, which dismissed the proceeding pursuant to CPLR article 78 and severed the action for a declaratory judgment. Ordered that the order and judgment is affirmed, with costs. Town of North Hempstead Code § 70-5 (G) and § 70-231 authorize the use of space in a residential dwelling for the professional office of certain enumerated professionals. The petitioner sought to establish an office for the practice of physical therapy, although that practice was not one of the enumerated professions. The Board of Zoning Appeals of che Town of North Hempstead (hereinafter the Board) denied the petitioner’s application, noting that the petitioner had not established grounds for a use variance (see, Town Law § 267-b). Further, although the Board acknowledged that it had the discretion under Town of North Hempstead Code § 70-25 to grant a permit for a proposed use not specifically authorized by the Code so long as the use was found to be in harmony with the 509 neighborhood, it declined to exercise that discretion here, as the proposed use was not in harmony with a historic residential district, and the petitioner refused to comply with certain conditions. The determination of the Board is supported by substantial evidence and is not arbitrary and capricious (see, Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309). The action for a declaratory judgment was properly severed (see, CPLR 603; Matter of Garden City Ctr. Assocs. v Incorporated Vil. of Garden City, 193 AD2d 740). O’Brien, J. P., Gold-stein, McGinity and Luciano, JJ., concur.