Opinion
CA 03-01745.
February 11, 2004.
Appeal from a judgment of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered November 14, 2002 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition and confirmed respondents' determination denying petitioners' application for an area variance.
KERNAN AND KERNAN, P.C., UTICA (KEVIN G. MARTIN OF COUNSEL), FOR PETITIONERS-APPELLANTS.
FOLEY, FRYE FOLEY, UTICA (RICHARD A. FRYE OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
Before: PRESENT: GREEN, J.P., WISNER, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to respondents for further proceedings in accordance with the following Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking to annul the determination of the Zoning Board of Appeals of the Town of Webb (Board) denying their application for an area variance. The Board failed to make sufficient findings regarding the five requisite statutory factors set forth in Town Law § 267-b (3)(b) to enable us to determine whether Supreme Court properly dismissed the petition and confirmed the determination ( see Matter of Fike v. Zoning Bd. of Appeals of Town of Webster, 2 A.D.3d 374 [Dec. 31, 2003]; cf. Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384-385). We therefore hold the case, reserve decision and remit the matter to respondents to set forth the factual basis for their determination ( see Fike, 2 A.D.3d 1343; cf. Matter of Filangeri v. Pulichene, 229 A.D.2d 702, 703).