Opinion
December 20, 1961
Appeal from an order of the Supreme Court entered in Madison County which dismissed the petition in a proceeding under article 78 of the Civil Practice Act to review and annul the determination of the Zoning Board of Appeals of the Town of Sullivan denying petitioners' application for a special use permit to operate a trailer park, issuable, under the provisions of the applicable zoning ordinance, if the board "shall determine in its judgment that: 1. It is reasonably necessary for the public health or general interest or welfare." (Zoning Ordinance of Town of Sullivan, art. IV, § 8, subd. C.) In support of their application, petitioners put in evidence a survey made by them of existing trailer park facilities, including data assembled in interviews with owners and operators thereof, which indicated that such facilities were inadequate to meet the demand therefor. This conclusion was contradicted by evidence that the building inspector found vacancies in the area, that the Town Board had granted to owners of existing trailer parks permission to expand their facilities, that trailer space was advertised for rental in a local newspaper and that vacancies existed on a particular date in a trailer park in an adjoining town. While another trier of the facts might have found petitioners' evidence more persuasive or have attached less significance to the somewhat isolated items of the proof in opposition, the weight of the evidence was for the respondent board and our limited power upon review does not permit us to substitute our judgment for that of the administrative body concerned. We cannot appraise the evidence upon which the board relied as less than substantial nor is there any basis for a determination that the board's judgment was arbitrary or unreasonable or so exercised as to constitute an abuse of discretion. Further, the weight and credibility of the hearsay evidence of appellants' purported survey, upon which their case depends, were for the board. Appellants did not call any of the trailer park operators interviewed nor did they accede to the suggestion that the questionnaires allegedly circulated be produced. Contrary to appellants' additional contention, the board's findings are adequate. Despite their further assertion that their application for a variance, made prior to the application before us and once reviewed, has not been determined upon remittal and that this proceeding should be remitted to the board for determination of that additional application, it is stated in respondents' brief and uncontradicted, that such application has since been determined; but, in any event, that matter bears no legal relation to this proceeding and is not before us. Order affirmed, without costs. Bergan, P.J., Gibson, Herlihy and Taylor, JJ., concur.