Asma v. Curcione
| Decision Date | 20 February 1969 |
| Citation | 298 N.Y.S.2d 286,31 A.D.2d 883 |
| Parties | Application of Elizabeth ASMA and Mobil Oil Corporation, Respondents, v. Arthur CURCIONE, Chairman, Salvatore Marasco, et al., Members of the Board of Appeals of the City of Niagara Falls, and Guy L. Forcucci, as Building Commissioner of the City of Niagara Falls, Appellants. |
| Court | New York Supreme Court — Appellate Division |
James Milne, Benjamin Gold, Niagara Falls, for appellants.
Boniello, Gellman, McNulty, Halpern, Anton & Kellick, Harold Halpern, Niagara Falls, for respondents.
Before GOLDMAN, P.J., and MARSH, WITMER, MOULE and BASTOW, JJ.
The Zoning Ordinance of the City of Niagara Falls authorizes the Board of Appeals to issue a special permit subject to the condition that such application must be referred to the Planning Board. It the latter Board recommends denial (or issuance subject to stated conditions) the permit may only be issued upon unanimous vote of the Board of Appeals. This procedure was followed in acting on petitioners' application. The Planning Board recommended disapproval and the ensuing vote of the Board of Appeals was nonunanimous. Special Term concluded that the action was arbitrary and capricious and directed issuance of the permit.
The difficulty we have in reviewing the matter is caused by the failure of either Board to take testimony or make findings. 'A denial of an application for a special permit will be reversed where it is unsupported by evidence and is justified, if at all, solely on the basis of an unfavorable recommendation of the planning board.' (3 Anderson, American Law of Zoning, § 15.16.) It follows that a record must be made so that a judicial decision may be made as to whether the determination was arbitrary (Cf. O'Boyle v. Coe, D.C., 155 F.Supp. 581). (Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20, 25, 226 N.Y.S.2d 374, 377, 181 N.E.2d 407, 409.)
Lastly, we take judicial notice of the fact that there exists an Erie and Niagara Counties Regional Planning Board. Section 239--m of the General Municipal Law mandates that in such event the appropriate municipal body before issuing a special permit where, among other things, the subject...
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