Silvernail v. Rago

• Decision Date: 07 April 1978
• Parties: Application of Gary L. SILVERNAIL, Appellant, v. Frank A. RAGO et al., Constituting the Zoning Board of Appeals of the Town of Onondaga, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 457

404 N.Y.S.2d 457

62 A.D.2d 1144

Application of Gary L. SILVERNAIL, Appellant, v. Frank A. RAGO et al., Constituting the Zoning Board of

Appeals of the Town of Onondaga, Respondents.

Supreme Court, Appellate Division,Fourth Department.

April 7, 1978.

Grasso, Rivizzigno, Woronov, Aloi & DiLauro, Syracuse, for appellant, by John P. DiLauro, Syracuse.

Alexander J. Hersha, Camillus, for respondents, by Alexander J. Hersha, Camillus.

Before MARSH, P. J., and DILLON, HANCOCK, DENMAN and WITMER, JJ.

MEMORANDUM:

Special Term dismissed the petition for annulment of the determination of the Zoning Board of Appeals denying petitioner's application for a special exception permit to use his 31.4 acre parcel of land for public riding stables. The Board made several findings or reasons for its action, including that petitioner's corral generates noise, dirt and odors and in wet seasons the run-off therefrom pollutes private wells used for water supply in the area, and that petitioner has offered no plan to obviate such conditions. Findings in support of Zoning Board action must, of course, be supported by facts in the record (Matter of T.J.R. Enterprises v. Town Bd. of Town of Southeast, 50 A.D.2d 836, 376 N.Y.S.2d 586). Although petitioner contends that this record does not support the Board's findings, the minutes of the hearing show that three witnesses gave testimony supporting the findings.

The ordinance in this case provides for the issuance of special exception use permits of the character sought by petitioner in this residential district, and so respondents were required to grant the permit unless they had reasonable grounds for denying it (Matter of Pleasant Val. Home Constr. v. Van Wagner, 41 N.Y.2d 1029, 395 N.Y.S.2d 631, 363 N.E.2d 1376; Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243-45, 331 N.Y.S.2d 645, 648, 282 N.E.2d 606, 608). The determination of the facts is for the administrative body and not for the courts (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); and since there are facts in the record to support the Board's determination, Special Term properly dismissed the petition (Matter of Tandem Holding Corp. v. Board of Zoning Appeals, Town of Hempstead, 43 N.Y.2d 801, 402 N.Y.S.2d 388, 373 N.E.2d 282; Matter of Mobil Oil Corp. v. Oaks, 55 A.D.2d 809, 390 N.Y.S.2d 276; Matter of C & G Developers v. Granito, 53 A.D.2d 612, 384...