Colonial Sand & Stone Co. v. Johnston

New York Court of Appeals

Colonial Sand & Stone Co. v. Johnston

233 N.E.2d 858, 20 N.Y.2d 964, 286 N.Y.S.2d 855, 1967 N.Y. LEXIS 1052

DecidedDecember 7, 1967

StatusPublished

This text of 233 N.E.2d 858 (Colonial Sand & Stone Co. v. Johnston) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Colonial Sand & Stone Co. v. Johnston, 233 N.E.2d 858, 20 N.Y.2d 964, 286 N.Y.S.2d 855, 1967 N.Y. LEXIS 1052 (N.Y. 1967).

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Opinions

Memorandum. Although petitioner applied to the Town Board of Appeals for a special permit to erect a ready-mix concrete plant on its land in a heavy industrial zone, it did so because the town building inspector supervisor had ruled that this would be necessary. The petitioner expressly argued before the board that the proposed plant was a permitted use under the zoning ordinance in a heavy industrial zone. There is no substantial evidence in the record that the plant would £ £ be offensive because of injurious or obnoxious * * # dust or other objectionable features” within the terms of the zoning ordinance requiring a special permit. Therefore, a special permit was not required and, in view of the ruling of the building inspector that a permit would be necessary and of the specific objection to its necessity by petitioner in its appearance before the board, this question was not waived by making the application for a special permit.

The order should be reversed, without costs, and judgment granted annulling the determination of the Board of Appeals.

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Memorandum. Although petitioner applied to the Town Board of Appeals for a special permit to erect a ready-mix concrete plant on its land in a heavy industrial zone, it did so because the town building inspector supervisor had ruled that this would be necessary. The petitioner expressly argued before the board that the proposed plant was a permitted use under the zoning ordinance in a heavy industrial zone. There is no substantial evidence in the record that the plant would £ £ be offensive because of injurious or obnoxious * * # dust or other objectionable features” within the terms of the zoning ordinance requiring a special permit. Therefore, a special permit was not required and, in view of the ruling of the building inspector that a permit would be necessary and of the specific objection to its necessity by petitioner in its appearance before the board, this question was not waived by making the application for a special permit.

The order should be reversed, without costs, and judgment granted annulling the determination of the Board of Appeals.

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Bluebook (online)

233 N.E.2d 858, 20 N.Y.2d 964, 286 N.Y.S.2d 855, 1967 N.Y. LEXIS 1052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colonial-sand-stone-co-v-johnston-ny-1967.