Persichilli Homes, Inc. v. Zoning Board of Appeals of Huntington

Memorandum. The order of the Appellate Division and the judgment of Special Term should be reversed, without costs to any party, and the proceedings remitted to Special Term for the purpose of considering a remand to the Zoning Board of Appeals to reconsider the application for a variance and building permits. The record before respondent board failed to establish any basis justifying petitioners’ application for a variance and building permits. But, in Anew of the additional matter mentioned on the hearing and presented by affidavit and exhibit to the court at Special Term which may have a bearing on a charge of discrimination and arbitrariness on the part of the board, petitioners should be afforded an opportunity to present such matter to the board for its consideration before an ultimate determination is made. Respondent, moreover, on the argument, indicated that it would not object to a reconsideration of the application on a full record before it of relevant matter. Petitioners are, therefore, entitled to a remand to the Toavu Board (see Matter of Berg v. Michaelis, 21 A D 2d 322, affd. 16 N Y 2d 822; cf. Matter of Colonial Liq. Distrs. v. O’Connell, 295 N. Y. 129, 141; People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280, 289-291). [670] Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating and Brbitel concur in memorandum; Judge Van Voorhis dissents and votes to affirm upon the opinion at Special Term. Order of Appellate Division and judgment of Special Term reversed, without costs, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.