Opinion
May 5, 1997
Appeal from the Supreme Court, Nassau County (Dunne, J.).
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 the 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 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 N.Y.2d 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 A.D.2d 740).
O'Brien, J.P., Goldstein, McGinity and Luciano, JJ., concur.