McDonald's Corp. v. Kern

260 A.D.2d 578, 688 N.Y.S.2d 613, 1999 N.Y. App. Div. LEXIS 4097

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Zoning Appeals of the Town of Smith-town, which denied the petitioner’s application for a special exception use permit, the appeal is from a judgment of the Supreme Court, Suffolk County (Henry, J.), dated April 8,1998, which granted the petition, annulled the determination, and directed that the application be granted upon certain stated conditions. The judgment brings up for review an order of the Supreme Court, Suffolk County (Stark, J.), dated September 26, 1996, which reversed and annulled a prior determination of the Board of Zoning Appeals of the Town of Smithtown on the same application, and remitted the matter for further proceedings.

Ordered that the judgment is affirmed, with costs.

We agree with the Supreme Court that the Board of Zoning Appeals exceeded its authority when it sua sponte raised the issue of the location of the relevant zoning district boundary lines and, upon its own inquiry, rendered essentially a de novo determination on that issue (see, Moriarty v Planning Bd., 119 AD2d 188; Barron v Getnick, 107 AD2d 1017; Matter of Carlington Corp. v Siegel, 61 AD2d 813). Accordingly, the special exception use permit should be granted to the petitioner, provided the petitioner otherwise satisfies the conditions stated. Ritter, J. P., Altman, Friedmann and Goldstein, JJ., concur. .