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MTR. OF COLONIAL STONE CO. v. JOHNSTON

28 A.D.2d 18 (1967)

In the Matter of Colonial Sand & Stone Co., Inc., Appellant, v. William Johnston, Jr., et al., Constituting The Board of Appeals of the Town of Bethlehem, Respondents

Appellate Division of the Supreme Court of the State of New York, Third Department.

June 28, 1967.

Attorney(s) appearing for the Case

Kohn, Bookstein & Karp (Edward L. Bookstein of counsel), for appellant.

Schrade, Morris & Roche (Karl H. Schrade of counsel), for respondents.

REYNOLDS, STALEY, JR., and GABRIELLI, JJ., concur with HERLIHY, J. P.; AULISI, J., dissents and votes to reverse, in the following memorandum: I cannot agree with the majority for the reason that the petitioner's proof here is virtually uncontradicted. In light of the fact that the premises are located in a heavy industrial district, the denial of the special permit was, in my view, arbitrary and capricious.

HERLIHY, J. P.

The appellant planned to locate a "ready-mix" concrete plant at a site known as Cabbage Island in the Town of Bethlehem. During August of 1966 it filed an application with the Board of Appeals of the Town of Bethlehem for permission to construct its plant at that location. The location is within an area zoned for heavy industrial uses, but the zoning ordinance provides that certain businesses require a special permit and an initial determination...

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