Saint Anthony's Church v. Larkin , 15 Misc. 2d 339 ( 1957 )

Marcus Gr. Christ, J.

This article 78 proceeding is a companion proceeding to Matter of Rothstein v. County Operating Corp. (15 Misc 2d 340) decided simultaneously herewith and seeks to have court annul the determination of the Town Board of the Town of Hempstead which granted permission to the corporate respondent to install gasoline and oil storage tanks and operate a gasoline service station at the southeast corner of Atlantic Avenue and Kenneth Place in Oceanside, N. Y. The petitioner in this proceeding is St. Anthony’s Church which claims to he an aggrieved person by reason of its ownership of considerable real property in the vicinity of the plot for which the permits have been granted. In large measure this petitioner urges the same grounds for annulling the Town Board’s determination as were urged by the petitioner in the companion proceeding. As in the other proceeding, the respondent Town Board has challenged, by way of affirmative defense and motion, the petitioner’s right to review the Town Board’s determination in this proceeding asserting that such action was a legislative act and immune to review by this court in an article 78 proceeding. The court rejects this contention and denies the motion on the authority of Matter of Lerner v. Young (286 App. Div. 1109, motion for leave to appeal to Court of Appeals denied 1 A D 2d 776, 309 N. Y. 1035) and Matter of Frantellizi v. Herman (1 A D 2d 980).

The court finds on the record presented in this proceeding, as it did in the companion proceeding, that no violation of the prohibitions of the Flammable Liquids Ordinance of the Town of Hempstead is involved. It finds, further, that there is substantial evidence in the record to sustain the determination of the Town Board as a reasonable exercise of its discretion. The petition is therefore dismissed, without costs.

Settle order on notice.