Opinion
July 9, 1981
Appeal from the Monroe Supreme Court, Patlow, J.
Present — Simons, J.P., Hancock, Jr., Callahan, Denman and Schnepp, JJ.
Judgment unanimously affirmed, without costs. Memorandum: This case involves an appeal from a judgment of Special Term which sustained the action of the Town Board of the Town of Penfield in granting a permit to operate a restaurant in a designated historic site under the town's "Historical Preservation" ordinance and is before us for the third time. We first held the case and remitted the matter because the town board failed to make specific findings mandated by subdivision H of section 14-7 of the Code of the Town of Penfield (Matter of Foxluger v Gossin, 65 A.D.2d 922). The facts of this case appear in detail in that decision. Thereafter we again held the case and remitted the matter because the town board acted without regard to the entire record (Matter of Foxluger v. Gossin, 75 A.D.2d 1014). Before us is a further resolution of the town board dated December 29, 1980 approving the application and making findings of fact. Although petitioners concede that the findings now appear to be procedurally proper, they claim that the record as a whole does not support the issuance of a permit, that applicants failed to sustain their burden of proof and that, consequently, the board's action is arbitrary and capricious. Viewing the record as a whole we conclude that the town board did not act arbitrarily, illegally, or without jurisdiction and that its decision is supported by substantial evidence and must be affirmed (Matter of Foxluger v. Gossin, 75 A.D.2d 1014, supra; see, also, Matter of Stork Rest. v. Boland, 282 N.Y. 256, 267).