Opinion
November 8, 1976
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Yorktown, which denied petitioner's application for a special use permit, the appeal is from a judgment of the Supreme Court, Westchester County, dated June 23, 1975, which, after a nonjury trial, annulled the determination and dismissed the answer. Judgment reversed, on the law, without costs or disbursements, and proceeding dismissed on the merits. In our opinion it was error for the Special Term, in effect, to hold the subject zoning ordinance unconstitutional in the absence of the town legislative body, a necessary party in order for such a holding to be made (see Matter of Overhill Bldg. Co. v Delaney, 28 N.Y.2d 449; Matter of Trifaro v Zoning Bd. of Appeals of Town of Red Hook, 45 A.D.2d 1015). In our view, the fact that the petitioner had moved his residence from the subject premises some time before the zoning ordinance amendment in question was adopted (under the amendment's provision, applicable herein, his residence at such premises was a required condition for the issuance of the requested permit) provided a sufficient basis for the board's denial of his application, and no further findings were required to have been made. Hopkins, Acting P.J., Martuscello, Margett, Rabin and Hawkins, JJ., concur.