Opinion
June 27, 1955.
In a proceeding, under article 78 of the Civil Practice Act, it appears that petitioner, owner of land situated within a "Business `A' District" under the zoning ordinance of the City of Mount Vernon, was granted permission by the local zoning board, after hearings, to use the land as a parking lot for a stated period of years. The board's permission was granted on the condition, among others, that petitioner apply for and receive a curb-lowering permit, the issuance of which is within the power of the common council of the city, under section 7-a of chapter II of the ordinances of the City of Mount Vernon. The common council declined to grant the curb-lowering permit. In this proceeding an order was made at Special Term remitting the matter to the common council to make findings of fact which would provide a basis for judicial review of the refusal of the curb-lowering permit. Petitioner and the members of the common council appeal from the order. Order reversed on the law, with $10 costs and disbursements, the petition granted, and the members of the common council directed to issue the curb-lowering permit. There is no necessity for remission of the matter, inasmuch as the return to the petition herein shows that the council refused the permit on the ground of traffic congestion and in the interests of public safety. ( People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N.Y. 280.) Considerations of traffic congestion and public safety, among others, were before the zoning board which made its determination after hearings. The zoning board having granted to petitioner a lawful right to use the land as a parking lot, the council's function in respect of the curb-lowering permit is merely ministerial, not legislative ( Matter of Monument Garage Corp. v. Levy, 266 N.Y. 339, 344), and the permit should have been granted to effectuate the parking lot permit. ( Matter of Beckmann v. Talbot, 278 N.Y. 146, 153-154.) While in the usual case the council's function in treating with applications for curb permits may be discretionary under section 7-a of chapter II of the local ordinances, in this case the council was not empowered to reject the application upon findings contrary to those of the zoning board on the same subject matter.
Wenzel, Acting P.J., MacCrate and Ughetta, JJ., concur;
Concededly, the right to permit curb cuts is in the common council. The permit to use the land as a parking lot, issued by the zoning board, was expressly conditioned upon the granting of a curb-lowering permit by the council. Since, as observed by the majority, the council's function in such matters is usually discretionary, the express condition made the board's permit subject to the council's discretion. Otherwise, the condition is meaningless. The return to the petition herein indicates that the council refused to grant a curb cut permit on the ground of traffic congestion and in the interests of public safety. If congestion or danger exists, the facts establishing their existence should appear from the return, for only then can the court know whether they are substantial or illusory. ( People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N.Y. 280, 287.) The return herein, however, contains neither findings based on evidence submitted at a hearing nor a statement of facts known to the members thereof, which would provide a basis for judicial review. While the Special Term might have taken the requisite testimony and made appropriate findings herein ( Matter of Newbrand v. City of Yonkers, 285 N.Y. 164, 178), it was no abuse of discretion to remit to the council to do so in the first instance. Accordingly, the order appealed from should be affirmed.