Opinion
October 1, 1992
Appeal from the Supreme Court, Saratoga County (Brown, J.).
Initially, we reject respondents' contention that Supreme Court should have transferred the proceeding to this Court. The petition sought review of a determination of a town zoning board of appeals; Supreme Court was therefore obligated by statute to dispose of the matter on its merits and to determine all of the issues raised by the pleadings (see, Town Law § 267; Matter of Kidd-Kott Constr. Co. v Lillis, 124 A.D.2d 996).
We nevertheless find that Supreme Court erred in annulling and setting aside the determination of respondent Zoning Board of Appeals of the Town of Waterford denying petitioners' request for a building permit. Petitioners' request was denied due to inadequate road frontage. The applicable zoning regulations require 100 feet of road frontage and, according to respondents' calculations, petitioners' property had only 85 feet of road frontage. Respondents' calculations were based on deeds to property adjoining petitioners' property as well as field inspections. Respondents chose to reject a subdivision map showing different property dimensions. Although petitioners present legal arguments stating that conflicts between a deed and a lot as shown on a map by which the land is conveyed should be controlled by the map (see, Mazzucco v Eastman, 36 Misc.2d 648, affd 17 A.D.2d 889), that is not the issue in this case. This is not a proceeding to determine what the boundary lines of petitioners' property were (cf., Thomas v Brown, 145 A.D.2d 849). Rather, the ultimate issue to be decided is whether respondents' actions were arbitrary and capricious (see, Thayer v Baybutt, 29 A.D.2d 486, affd 24 N.Y.2d 1018). On the record before respondents, it cannot be said that the determination was arbitrary or that it was not supported by substantial evidence (see, Matter of Fuhst v Foley, 45 N.Y.2d 441).
Finally, as to petitioners' contention with respect to the alleged deficiencies in the notice of public hearing under Town Law § 276 (4), we note that a defect in a notice of hearing does not deprive a municipality of jurisdiction (see, Fairris v Town of Washington Planning Bd., 167 A.D.2d 368, lv denied 77 N.Y.2d 805). Further, petitioners had actual knowledge of and appeared at the hearing (see, Matter of Ahearn v Zoning Bd. of Appeals, 158 A.D.2d 801, lv denied 76 N.Y.2d 706; Matter of Gaona v Town of Huntington Zoning Bd. of Appeals, 106 A.D.2d 638).
Weiss, P.J., Levine, Mercure, Mahoney and Casey, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as annulled the determination of respondent Zoning Board of Appeals of the Town of Waterford denying petitioners' request for a building permit and ordered respondent Building Inspector of the Town of Waterford to issue petitioners a building permit; determination confirmed and petition dismissed; and, as so modified, affirmed.