Berzon v. Jones

Appellate Division of the Supreme Court of New York

Berzon v. Jones

33 A.D.2d 989, 307 N.Y.S.2d 404, 1970 N.Y. App. Div. LEXIS 5765

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 15, 1970

StatusPublished

This text of 33 A.D.2d 989 (Berzon v. Jones) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berzon v. Jones, 33 A.D.2d 989, 307 N.Y.S.2d 404, 1970 N.Y. App. Div. LEXIS 5765 (N.Y. Ct. App. 1970).

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Opinion

—Order unanimously reversed and determination annulled, with costs to appellants. Memorandum: The resolution adopted by respondent Town Board approving the application of one Mrs. Tiburzi to operate a beauty parlor in her home was in violation of the provisions of the Town Zoning Law. The home was situated in an R-3 District where a “ home occupation,” as defined in article IV of the law, was permitted subject to approval by the Town Board, after a public hearing (§ 56-57). Such “home occupation” was defined (art. IV, par. 22) as one of secondary importance to that of use as a residence “and not specifically listed elsewhere as a principal permitted use ”. Elsewhere in the ordinance (§ 56-83) operation of a beauty salon was one of the permitted uses in a B-2 Neighborhood Business District. It follows that the board was without statutory authority to approve the application. There is no merit to the contention of respondents that the drafter of the ordinance envisioned a distinction between a “ beauty shop ” and a “ beauty salon.” The two phrases, together with “beauty parlor,” are used indiscriminately to describe one and the same establishment. Indeed, in processing the application herein the two appellations were used interchangeably. (Appeal from order of Erie Special Term denying application to annul determination of Town Board.) Present — Goldman, P. J., Marsh, Gabrielli, Moule and Bastow, JJ.

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—Order unanimously reversed and determination annulled, with costs to appellants. Memorandum: The resolution adopted by respondent Town Board approving the application of one Mrs. Tiburzi to operate a beauty parlor in her home was in violation of the provisions of the Town Zoning Law. The home was situated in an R-3 District where a “ home occupation,” as defined in article IV of the law, was permitted subject to approval by the Town Board, after a public hearing (§ 56-57). Such “home occupation” was defined (art. IV, par. 22) as one of secondary importance to that of use as a residence “and not specifically listed elsewhere as a principal permitted use ”. Elsewhere in the ordinance (§ 56-83) operation of a beauty salon was one of the permitted uses in a B-2 Neighborhood Business District. It follows that the board was without statutory authority to approve the application. There is no merit to the contention of respondents that the drafter of the ordinance envisioned a distinction between a “ beauty shop ” and a “ beauty salon.” The two phrases, together with “beauty parlor,” are used indiscriminately to describe one and the same establishment. Indeed, in processing the application herein the two appellations were used interchangeably. (Appeal from order of Erie Special Term denying application to annul determination of Town Board.) Present — Goldman, P. J., Marsh, Gabrielli, Moule and Bastow, JJ.

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Bluebook (online)

33 A.D.2d 989, 307 N.Y.S.2d 404, 1970 N.Y. App. Div. LEXIS 5765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berzon-v-jones-nyappdiv-1970.