Constantino v. Moline

821 Appeal from a judgment of the Supreme Court, Erie County (John F. O’Donnell, J.), entered April 8, 2003 in a proceeding pursuant to CPLR article 78. The judgment granted the petition and directed respondents to issue a special use permit to petitioners. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Petitioners commenced this CPLR article 78 proceeding to annul the determination of the Town Board of the Town of Tonawanda (Town Board) denying their application for a special use permit to construct three multiple dwelling units consisting of 20 condominiums. Supreme Court properly granted the petition. Although respondents contend that petitioners did not satisfy all the requirements in the Tonawanda Town Code for a special use permit (see generally Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190, 195 [2002]), they stated in their resolution denying the application that petitioners “complied in every respect with the requirements” of the Tonawanda Town Code provisions regarding special use permits. The record establishes that the Town Board’s denial of petitioners’ application was based solely upon community objection to the project, and thus the court properly determined that the denial of petitioners’ application is not supported by substantial evidence (see Retail Prop. Trust, 98 NY2d at 196; Matter of Twin County Recycling Corp. v Yevoli, 90 NY2d 1000, 1002 [1997]; Matter of PDH Props. v Planning Bd. of Town of Milton, 298 AD2d 684, 686-687 [2002]). Present—Wisner, J.E, Hurlbutt, Scudder, Kehoe and Hayes, JJ.