Opinion
CA 03-01798.
February 11, 2004.
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.
GORDON D. TRESCH, DEPUTY TOWN ATTORNEY, KENMORE, FOR RESPONDENTS-APPELLANTS.
SULLIVAN OLIVERIO GIOIA LLP, BUFFALO (RICHARD T. SULLIVAN OF COUNSEL), FOR PETITIONERS-RESPONDENTS.
Before: PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
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 N.Y.2d 190, 195), 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 N.Y.2d at 196; Matter of Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 1002; Matter of PDH Props. v. Planning Bd. of Town of Milton, 298 A.D.2d 684, 686-687).