Opinion
June 21, 1976
In a proceeding pursuant to CPLR article 78 inter alia to review a determination of the respondent zoning board of appeals which, after a hearing, denied petitioner's application for a special use permit, he appeals from a judgment of the Supreme Court, Westchester County, dated March 1, 1976, which dismissed the petition. Judgment reversed, on the law, without costs or disbursements, and matter remanded to the zoning board of appeals for a new determination in accordance herewith. The zoning board of appeals erroneously considered petitioner's application for a special use permit as an application for a variance. The board thus applied a stricter standard than was warranted. Accordingly, we remand the matter to the board for consideration of petitioner's application as one for a special permit. On remand, the board shall consider whether the proposed use meets the standards prescribed by the ordinance, since the "inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood" (see Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243). Hopkins, Acting P.J., Martuscello, Margett, Rabin and Hawkins, JJ., concur.