Driscoll v. Culbertson

Determination of the Board of Appeals annulled, without costs, without prejudice to the right of the additional respondents to reapply in a new proceeding. Memorandum: There are many procedural failures on the part of the respondents and additional respondents which require that the petition before us be granted to the extent of annulling the determination of the board. However, the more fundamental reason for annulling the determination is that the evidence presented was insufficient to empower the board to grant the variance (Matter of Crossroads Recreation v. Broz, 4 N Y 2d 39; Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Gerling v. Board of Zoning Appeals, 6 A D 2d 247). The question of whether the additional respondents were entitled to a permit as a matter of right is not before us. All concur. (Review of the action of the Board of Appeals of Geneva, New York, granting a building permit for construction of a building housing a retail garden and floral store, which proceeding was transferred to the Appellate Division for determination by order of Ontario Special Term.) Present — MeCurn, P. J., Kimball, Williams, Goldman and Halpern, JJ.