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Keeping Animals In Cages On the Same Lot as Petitioner’s Home, as Part of the Operation of a Business, Constituted a “Home Occupation” Requiring Approval by the Zoning Board

The Third Department determined the zoning board of appeals had properly ruled that petitioner was conducting a business inside his home without approval, a so-called “home occupation.”  The fact that large animals were kept outside petitioner’s home in permanent cages was found to be within the scope of the relevant definition of an “accessory structure:”

Petitioner contends that the activities occur in the cages on his property, not in any building on the property or any offsite location. There is no evidence in this record to show that business activities are conducted “inside the residence” or “at off-site locations,” so such activities must be conducted in “a legally constructed accessory building” to fall within the ordinance (Zoning Law [2008] of the Town of Mayfield § 202 [A] [42]). An “[a]ccessory [s]tructure” is defined as a building “which is located on the same lot” as, and “the use of which is incidental to that of,” a one- or two-family dwelling (Zoning Law[2008] of the Town of Mayfield § 202 [A] [1]). “Building” is defined as a one- or two-family dwelling or portion thereof “intended to be used for human habitation” but also “shall include accessory structures thereto” (Zoning Law [2008] of theTown of Mayfield § 202 [A] [10]). While cages would not generally be considered buildings, the Zoning Law contains a section on “[w]ord [u]sage” stating that “[t]he word ‘building’ includes the word ‘structure'” (Zoning Law [2008] of the Town of Mayfield § 201). That provision clarifies any ambiguity concerning the definitions of the relevant terms here, as a cage that is built into the ground – like these cages apparently are – can be considered a structure, and the cages are on the same lot as and incidental to the use of petitioner’s residence … .The code enforcement officer did not assert that the cages were illegally constructed. Thus, as petitioner is carrying on business activities in legally constructed accessory structures, he is operating a home occupation. Matter of Salton v Town of Mayfield Zoning Board of Appeals, 516523, 3rd Dept 4-3-14

 

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