Pazera v. Drexelius

4 A.D.3d 804, 771 N.Y.S.2d 443, 2004 N.Y. App. Div. LEXIS 1464

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2004
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered November 14, 2002 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition and confirmed respondents’ determination denying petitioners’ application for an area variance.

It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to respondents for further proceedings in accordance with the following memorandum: Petitioners commenced this CPLR article 78 proceeding seeking to annul the determination of the Zoning Board of Appeals of the Town of Webb (Board) denying their application for an area variance. The Board failed to make sufficient findings regarding the five requisite statutory factors set forth in Town Law § 267-b (3) (b) to enable us to determine whether Supreme Court properly dismissed the petition and confirmed the determination (see Matter of Fike v Zoning Bd. of Appeals of Town of Webster, 2 AD3d 1343 [2003]; cf. Matter of Sasso v Osgood, 86 NY2d 374, 384-385 [1995]). We therefore hold the case, reserve decision and remit the matter to respondents to set forth the factual basis for their determination (see Fike, 2 AD3d 1343; cf. Matter of Filangeri v Pulichene, 229 AD2d 702, 703 [1996]). Present—Green, J.E, Wisner, Scudder, Gorski and Lawton, JJ.