        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1048
CA 11-00506
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.


IN THE MATTER OF ERIN DEVOGELAERE,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

WEBSTER ZONING BOARD OF APPEALS,
RESPONDENT-RESPONDENT.


THE ANDERSON LAW FIRM, P.C., ROCHESTER (RICHARD F. ANDERSON OF
COUNSEL), FOR PETITIONER-APPELLANT.

CHARLES J. GENESE, TOWN ATTORNEY, WEBSTER, FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
Michael Barry, J.), entered January 14, 2011 in a proceeding pursuant
to CPLR article 78. The judgment dismissed the petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner owns property in the Town of Webster
(Town) located in a Large Lot Single Family Residential District.
Beginning in 2007, she rented the property for periods ranging from
one night to approximately three months. In 2010 the Town amended its
zoning ordinance to prohibit transient rental, i.e, “[r]ental of a
dwelling unit for a period of less than 28 continuous days” (Code of
the Town of Webster § 225-3; see § 225-80 [B]). Petitioner commenced
this CPLR article 78 proceeding seeking, inter alia, to annul the
determination denying her “application to appeal” from the
determination of the Town’s Code Enforcement Official that her use of
the property for transient rentals was not permitted and directing her
to cease the offending use.

     Supreme Court properly dismissed the petition. “ ‘[A] zoning
board’s interpretation of its zoning ordinance is entitled to great
deference . . . and judicial review is generally limited to
ascertaining whether [its] action was illegal, arbitrary and
capricious, or an abuse of discretion’ ” (Matter of Falco Realty, Inc.
v Town of Poughkeepsie Zoning Bd. of Appeals, 40 AD3d 635, 636, lv
denied 9 NY3d 807). Here, respondent reasonably determined that
petitioner’s serial rental of the subject property was prohibited
under the zoning ordinance and that it did not constitute a legal
nonconforming preexisting use, and thus petitioner had no right to
continue such use (see generally Matter of Marino v Town of Smithtown,
                                 -2-                          1048
                                                         CA 11-00506

61 AD3d 761, 762; Matter of Quatraro v Village of Kenmore Zoning Bd.
of Appeals, 277 AD2d 1001).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
