DeBlois v. Wallace
| Decision Date | 17 June 1982 |
| Citation | 452 N.Y.S.2d 734,88 A.D.2d 1073 |
| Parties | In the Matter of Diana DeBLOIS et al., Petitioners, v. George WALLACE et al., Constituting the Zoning Board of Appeals of the Town of Moreau, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Carl J. Madonna, Glens Falls, for petitioners.
William Nikas, Hudson Falls, for respondent Petrolane, Inc.
Before MAHONEY, P. J., and SWEENEY, MAIN, CASEY and YESAWICH, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of respondent Zoning Board of Appeals of the Town of Moreau which granted respondent Petrolane, Inc. a special use permit.
On March 31, 1981, after a public hearing was held, the Town of Moreau Zoning Board of Appeals (board) granted the application of Petrolane, Inc. for a special use permit allowing it to operate a fueling station in a commercially zoned area. At the request of petitioners, all of whom are property owners near the site of the proposed fueling station, the board granted a rehearing of Petrolane's application and a further hearing was conducted on June 9, 1981. At the conclusion of that hearing, at which testimony from all interested parties was taken, the matter was declared closed and a meeting of the board was scheduled for June 18 at which time a decision on Petrolane's application was to be made.
When the board convened on June 18, however, a question arose concerning the adequacy of the water supply at the site of the proposed fueling station. A special meeting of the board was scheduled for June 22, in order to hear from the town's fire chief regarding the fire department's capabilities in handling potential fires at the proposed site. The June 22 meeting was categorized as being "informational" and was open to the public. On June 23, 1981, at a regular meeting of the board, the chairman read into evidence a letter from Petrolane's attorney indicating the applicant's willingness to install two underground water storage tanks to provide additional firefighting protection. The board then granted Petrolane a special use permit with the additional condition that the water storage tanks be installed. Petitioners commenced this transferred CPLR article 78 proceeding to challenge the board's determination. *
While we deem it unwise for the board to have taken testimony from the town's fire chief on June 22, 1981 without affording petitioners an opportunity to appraise or rebut it, we cannot agree with petitioners' contention in this proceeding that such conduct should serve as a basis for annulling the determination granting the special use permit (Matter of Socony Vacuum Oil Co. v. Murdock, 165 Misc. 713, 1 N.Y.S.2d 574, 2 Anderson, New York Zoning Law and Practice § 20.16, pp....
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