Opinion
November 15, 1965
In a proceeding under article 78 of the CPLR to vacate a determination of the Town Board of the Town of Oyster Bay denying an application for special permission to erect multiple dwellings, the Town Board appeals from a judgment (denominated in the notice of appeal as an order) of the Supreme Court, Nassau County, entered April 15, 1965, which granted the application and directed that such permission be granted. Judgment affirmed, with costs to petitioner. No opinion. Beldock, P.J., Rabin, Hopkins and Benjamin, concur; Ughetta, J., dissents, with the following memorandum: I dissent from affirmance of the judgment granting vacatur of the determination of appellant denying special permission to erect multiple dwellings in a neighborhood business zone, to the extent that such order directs the Town Board to grant the special permission. The matter should be remitted to the Town Board for the making of proper findings. The so-called findings are nothing more than conclusions arrived at on the immaterial basis of occupancy of the proposed 270 apartment house units by aged persons. Facts upon which conclusions pertinent to such construction, irrespective of occupants, should be set forth, not only on the basis of the record but "the personal knowledge of the members" of which the Town Board speaks, including the present nature of the improvement of the area adjoining the site along Jericho Turnpike near or at the intersection of the expressway. On such facts the expert judgment of the members of the board should be expressed as to the community welfare.