Opinion
July 10, 1967
In a proceeding pursuant to article 78 of the CPLR, the Board of Zoning Appeals of the Town of Hempstead appeals from an order and judgment of the Supreme Court, Nassau County, dated September 27, 1966, which annulled the board's determination of August 25, 1965 denying petitioner's application for a special permit to erect a booster pumping station and ordered the board to grant the application and to cause the permit to issue. Judgment modified on the law (1) by striking out (a) the second decretal paragraph ordering the board to grant petitioner's application for such permit and (b) the third decretal paragraph ordering the building permit to issue, and (2) by substituting therefor a provision remanding the proceeding to the local Zoning Board of Appeals for the purpose of rendering a decision not inconsistent herewith. As so modified, order and judgment affirmed, with costs. In our opinion, Special Term was correct in holding that a zoning board may not exclude a utility from a community where the utility has shown the necessity for its facilities. The board does have the right, however, to require of the utility some degree of conformity with its community plan ( Matter of Long Is. Lighting Co. v. Griffin, 272 App. Div. 551, affd. 297 N.Y. 897; Matter of Long Is. Lighting Co. v. Horn, 24 A.D.2d 840, affd. 17 N.Y.2d 652; Matter of New York State Elec. Gas Corp. v. McCabe, 32 Misc.2d 898; Matter of Consolidated Edison Co. v. Village of Briarcliff Manor, 208 Misc. 295; Matter of Niagara Mohawk Power Corp. v. City of Fulton, 8 A.D.2d 523; Anderson, Zoning Law and Practice in New York State, § 9.18-22). The proceeding is remanded to the board solely for the purpose of determining what, if any, reasonable regulations, consonant with the town's zoning plan, should be imposed upon the utility (cf. Matter of Long Is. Lighting Co. v. Horn, supra). Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.