Opinion
65 CA 18–01432
03-15-2019
In the MATTER OF Ned E. DEAN, Jr., John A. Pierce, Timothy J. Mead, Steven K. Smith, and Michele Ross, Petitioners–Appellants, v. TOWN OF POLAND ZONING BOARD OF APPEALS, Brenda M. Bunce, Terry A. Nunez, Dennis R. Ormond, Dawn Ormond Constantine and the Broadway Group, LLC, Respondents–Respondents.
WRIGHT, WRIGHT AND HAMPTON, JAMESTOWN (EDWARD P. WRIGHT OF COUNSEL), FOR PETITIONERS–APPELLANTS. THE BROADWAY GROUP, LLC, JAMESTOWN (DAVID R. STAPLETON OF COUNSEL), AND BUNCE, NUNEZ, ORMOND AND CONSTANTINE, FOR RESPONDENTS–RESPONDENTS BRENDA M. BUNCE, TERRY A. NUNEZ, DENNIS R. ORMOND, DAWN ORMOND CONSTANTINE AND THE BROADWAY GROUP, LLC.
WRIGHT, WRIGHT AND HAMPTON, JAMESTOWN (EDWARD P. WRIGHT OF COUNSEL), FOR PETITIONERS–APPELLANTS.
THE BROADWAY GROUP, LLC, JAMESTOWN (DAVID R. STAPLETON OF COUNSEL), AND BUNCE, NUNEZ, ORMOND AND CONSTANTINE, FOR RESPONDENTS–RESPONDENTS BRENDA M. BUNCE, TERRY A. NUNEZ, DENNIS R. ORMOND, DAWN ORMOND CONSTANTINE AND THE BROADWAY GROUP, LLC.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to respondent Town of Poland Zoning Board of Appeals for further proceedings in accordance with the following memorandum: Petitioners appeal from a judgment dismissing their CPLR article 78 petition, in which they sought to annul the determination of respondent Town of Poland Zoning Board of Appeals (ZBA) granting a use variance to the remaining respondents. "Generally, [f]indings of fact which show the actual grounds of a decision are necessary for an intelligent judicial review of a quasi-judicial or administrative determination" ( Matter of Livingston Parkway Assn., Inc. v. Town of Amherst Zoning Bd. of Appeals , 114 A.D.3d 1219, 1219–1220, 980 N.Y.S.2d 206 [4th Dept. 2014] [internal quotation marks omitted]; see Matter of South Blossom Ventures, LLC v. Town of Elma , 46 A.D.3d 1337, 1338, 848 N.Y.S.2d 806 [4th Dept. 2007], lv dismissed 10 N.Y.3d 852, 859 N.Y.S.2d 614, 889 N.E.2d 492 [2008] ). Inasmuch as the ZBA "failed to articulate the reasons for its determination and failed to set forth findings of fact in its decision" ( Matter of Fike v. Zoning Bd. of Appeals of Town of Webster , 2 A.D.3d 1343, 1344, 769 N.Y.S.2d 415 [4th Dept. 2003] ), the record does not permit review of Supreme Court's conclusion that the ZBA's determination has a rational basis and is not arbitrary and capricious (cf. Matter of Dietrich v. Planning Bd. of Town of W. Seneca , 118 A.D.3d 1419, 1421, 988 N.Y.S.2d 760 [4th Dept. 2014] ; Matter of Concerned Citizens of Perinton v. Town of Perinton , 261 A.D.2d 880, 880, 689 N.Y.S.2d 812 [4th Dept. 1999], appeal dismissed 93 N.Y.2d 1040, 697 N.Y.S.2d 567, 719 N.E.2d 928 [1999], cert denied 529 U.S. 1111, 120 S.Ct. 1965, 146 L.Ed.2d 796 [2000] ). Consequently, we hold the case, reserve decision and remit the matter to the ZBA to set forth the factual basis for its determination and articulate the reasons for it.