Fornaby v. Feriola

• Decision Date: 21 February 1962
• Citation: 34 Misc.2d 878,232 N.Y.S.2d 218
• Parties: In the Matter of FORNABY et al., Petitioners, v. Ralph FERIOLA et al., Constituting the Zoning Board of Appeals of the City of Yonkers, et al., Respondents, and Helen Cook, Intervenor-Respondent.
• Court: New York Supreme Court

Page 218

232 N.Y.S.2d 218

34 Misc.2d 878

In the Matter of FORNABY et al., Petitioners, v. Ralph FERIOLA et al., Constituting the Zoning Board of

Appeals of the City of Yonkers, et al.,

Respondents, and Helen Cook,

Intervenor-Respondent.

Supreme Court, Westchester County.

Feb. 21, 1962.

Ralph R. Nobile, Yonkers, for petitioners.

John F. Trainor, Corp. Counsel, for respondents.

Samuel S. Weiner, Yonkers, for intervenor-respondent.

CLARE J. HOYT, Justice.

This is a proceeding under article 78 of the Civil Practice Act to review a determination of the Zoning Board of Appeals of the City of Yonkers, and approved by the Common Council of the City of Yonkers, granting a special exception use to permit the erection of a gasoline filling station at the corner of Yonkers Avenue and Dunwoodie Street in the City of Yonkers.

The location of the proposed filling station is in a 'B' zone area under the Zoning Ordinance which permits without any application a variety of commercial and business activities, including stores, theatres, truck loading and unloading berths, laundromats, auto sales agencies.

The return of the respondents shows that a lengthy hearing was held, many witnesses were heard and evidence adduced both in favor of and against the application.

The petitioners moved to dismiss the answers as being insufficient in law and then submitted replies for a determination on the merits in the event the motion to dismiss the answers were denied. Petitioners argue that the answers are insufficient because the respondents failed to make sufficient findings. The ordinance requires that for the granting of a special exception use there must be findings that the purposes and intent of the Zoning Ordinance will be in harmony therewith; the purposes and intent in general being to promote public health, safety and welfare, regulate the growth of the city, protect property, conserve values, promote land utilization, prevent overcrowding and minimize congestion.

The findings made by the board were as follows: 'The Board gave careful consideration to the entire area, reviewing it again, and found that in the 'B' zone there were lumber yards and stone companies and sand companies. And a gas station is permitted, and in view of it being a 'B' zone, the Board unanimously granted it. The Board granted this special exception use subject to the approval of the Common Council.'

These findings are, in the opinion of the court, insufficient. The board might have made adequate findings to support its determination upon the basis of the evidence presented before it. It is not the court's duty or province, however, to go through the evidence and then speculate that the board could have made proper requisite findings on that evidence. This situation was dealt with in Matter of Hattem v. Silver, 19 Misc.2d 991, 992, 197 N.Y.S.2d 535, 537, where, in rejecting findings, the court held:

'The argument that no formal finding of fact need be made because recourse may be had to facts contained in the record is lacking in persuasiveness. Simply put, it means that the court must wade through the record and find for itself facts and reasons to sustain the Board's determination; and then hold that those were the facts and reasons which the Board members had in mind and which persuaded them in making the determination. The...