Miller v. Ward — 51 N.Y.2d 887

Majority

p. 887

In the Matter of Charles Miller et al., Appellants, v Frank Ward et al., Constituting the Zoning Board of Appeals of the Town of East Fishkill, Respondents.

Argued October 6, 1980;

decided November 11, 1980

p. 888

APPEARANCES OF COUNSEL

Arden H. Rathkopf and Daren A. Rathkopf for appellants.

Ian G. MacDonald for respondents.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum opinion of that court.

We find no merit to the contention that in denying appellants’ application for a special permit to conduct soil mining the zoning board of appeals was precluded from considering evidence of the prospective inability of the applicant to comply with the operating standards prescribed in the zoning ordinance. There is evidence in the record to support the board’s determination that the elaborated standards of the ordinance had not been met in full, and there is no merit to appellants’ contention that the board’s decision was improperly based on material outside the record.

p. 889

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.