Sunset Sanitation Service Corp. v. Board of Zoning Appeals of Town of Smithtown , 172 A.D.2d 755 ( 1991 )

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Smithtown dated September 13, 1988, which declared that the petitioner’s resource recovery, separation and transfer facility was not a "non-nuisance industry” pursuant to the Building Zone Ordinance of the Town of Smithtown, and therefore denied the petitioner’s application to build such a facility, the appeal, by permission, is from an order of the Supreme Court, Suffolk County (Doyle, J.), entered June 16, 1989, which annulled the determination and remitted the matter to the appellants for rehearing.

Ordered that the order is affirmed, without costs or disbursements.

Subsequent to the close of the public hearing on the petitioner’s application, the appellants received a Planning Advisory Report from the Town of Smithtown Planning and Community Development Department. This report gave a highly negative evaluation of the petitioner’s application, and in addition, set forth factual allegations in support of the conclusion that the petitioner’s facility "may be more appropriately classified as a junkyard than a non-nuisance industry”. Because the petitioner was not given the opportunity to rebut the new evidence contained in the report, which evidence was expressly relied upon by the appellants, the trial court properly ordered a rehearing in this matter (see, Stein v Board of Appeals, 100 AD2d 590; see also, 2 Anderson, New York Zoning Law and Practice § 25.14 [3d ed]). Lawrence, J. P., Harwood, Rosenblatt and O’Brien, JJ., concur.