32 N.Y.2d 930 (1973)

Frank Bloom et al., Respondents, v. Town Board of the Town of Oyster Bay, Appellant, and Robert Liebowitz et al., Intervenors-Appellants.

Court of Appeals of the State of New York.

Decided June 7, 1973.

Attorney(s) appearing for the Case

John M. Conroy, Town Attorney (Charles F. Lynch of counsel), for appellant.

George C. Pratt for intervenors-appellants.

William R. Cotter for respondents.

Concur: Chief Judge FULD and Judges BURKE, GABRIELLI, JONES and WACHTLER. Judge JASEN dissents and votes to affirm in the following opinion in which Judge BREITEL concurs.

Order reversed, without costs, on the dissenting opinion at the Appellate Division and judgment granted to appellants declaring valid the rezoning resolution in question in accordance with the conditions and distinctions contained therein.

JASEN, J. (dissenting).

I agree with the majority that Special Term's construction of the phrase "lot area", excluding as it did the 13 acres of sloping land, was erroneous. However, I would otherwise affirm the order of the Appellate Division. In the posture that this case comes to us, the issue of whether the intervenors' property was validly reclassified is essentially factual and nonreviewable in this court. The applicable section of the zoning ordinance requires that before the Town Board act, the town engineer approve the proposed sewage system and the evidence of this approval be satisfactory to the Town Board. Whether that approval had been obtained and whether the Town Board was satisfied with the evidence of that approval were questions of fact. As the evidence of the occurrence of these necessary preconditions to the Town Board's power to act was conflicting, the courts below had the power to resolve the issues of fact and these affirmed findings are binding on this court.

Order reversed, etc.


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