Appellate Division of the Supreme Court of New York, 1991

Sunset Sanitation Service Corp. v. Board of Zoning Appeals of Town of Smithtown

Appellate Division of the Supreme Court of New York · Decided April 22, 1991

172 A.D.2d 755; 569 N.Y.S.2d 141; 1991 N.Y. App. Div. LEXIS 5375

Cases that cite this one

10 later published cases cite this decision.

Matter of Bali Two, LLC v. Pascale (Appellate Division of the Supreme Court of New York 2024)
Matter of BKP Harrison, LLC v. Town/Vil. of Harrison (Appellate Division of the Supreme Court of New York 2026)
Matter of Troy Sand & Gravel Co., Inc. v. Fleming (Appellate Division of the Supreme Court of New York 2017)
CERTIFIED ROAD CONSTRUCTORS, INC. v. TOWN OF RUSSIA ZONING BOARD OF APPE, ALS (Appellate Division of the Supreme Court of New York 2015)
Certified Road Constructors, Inc. v. Town of Russia Zoning Board of Appeals (Appellate Division of the Supreme Court of New York 2015)
Certified Road Constructors, Inc. v. Town of Russia Zoning Board of Appeals (Appellate Division of the Supreme Court of New York 2015)
McAvoy v. Klein (Appellate Division of the Supreme Court of New York 2014)
McAvoy v. Klein (Appellate Division of the Supreme Court of New York 2014)
31 Commerce Street, LLC v. Darden (Appellate Division of the Supreme Court of New York 2008)
Hampshire Management Co. v. Nadel (Appellate Division of the Supreme Court of New York 1997)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Smithtown dated September 13, 1988, which declared that the petitioner’s resource recovery, separation and transfer facility was not a "non-nuisance industry” pursuant to the Building Zone Ordinance of the Town of Smithtown, and therefore denied the petitioner’s application to build such a facility, the appeal, by permission, is from an order of the Supreme Court, Suffolk County (Doyle, J.), entered June 16, 1989, which annulled the determination and remitted the matter to the appellants for rehearing.

Ordered that the order is affirmed, without costs or disbursements.

Subsequent to the close of the public hearing on the petitioner’s application, the appellants received a Planning Advisory Report from the Town of Smithtown Planning and Community Development Department. This report gave a highly negative evaluation of the petitioner’s application, and in addition, set forth factual allegations in support of the conclusion that the petitioner’s facility "may be more appropriately classified as a junkyard than a non-nuisance industry”. Because the petitioner was not given the opportunity to rebut the new evidence contained in the report, which evidence was expressly relied upon by the appellants, the trial court properly ordered a rehearing in this matter (see, Stein v Board of *756Appeals, 100 AD2d 590; see also, 2 Anderson, New York Zoning Law and Practice § 25.14 [3d ed]). Lawrence, J. P., Harwood, Rosenblatt and O’Brien, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.