Beebe v. Zoning Board of Appeals of Town of New Castle , 65 A.D.2d 794 ( 1978 )

Proceeding pursuant to CPLR article 78 to review a determination of the respondent zoning board of appeals dated December 28, 1977, which, inter alia, granted an application of the intervenor-respondent for a special use permit. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. Under subdivision 7 of section 267 of the Town Law, this matter should have been disposed of at Special Term in the first instance, rather than having been transferred to this court. However, in view of the fact that the matter is before the court, it will be determined on the merits (see Falkenbury v Shultz, 44 AD2d 827). Henceforth, these matters are to be determined at Special Term. Addressing ourselves to the merits, we hold that the record does not indicate that the zoning board acted in a manner that was in any way arbitrary, illegal or unreasonable. In addition, the determination is supported by substantial evidence. Therefore, it should not be disturbed. Mollen, P. J., Titone, Hawkins and O’Connor, JJ., concur; Hopkins, J., not voting.