        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1374
CA 13-00364
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF LIVINGSTON PARKWAY
ASSOCIATION, INC., KENNETH PASLAQUA, EDWARD
BUTLER, JR., DIANE RODMAN, JAMES REYNOLDS,
RAYMOND PAOLINI AND MICHAEL HUNTRESS,
PETITIONERS-APPELLANTS,

                    V                                MEMORANDUM AND ORDER

TOWN OF AMHERST ZONING BOARD OF APPEALS,
THOMAS KETCHUM, TOWN OF AMHERST, ISKALO 5000
MAIN LLC, ISKALO DEVELOPMENT CORP., SONOMA
GRILLE, INC., DOING BUSINESS AS SONOMA GRILLE
AND MICHAEL R. MILITELLO, RESPONDENTS-RESPONDENTS.


RICHARD G. BERGER, BUFFALO, AND LIPPES & LIPPES, FOR
PETITIONERS-APPELLANTS.

HODGSON RUSS LLP, BUFFALO (DANIEL A. SPITZER OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS SONOMA GRILLE, INC., DOING BUSINESS AS SONOMA
GRILLE AND MICHAEL R. MILITELLO.

BENNETT, DIFILIPPO & KURTZHALTS, LLP, HOLLAND (RONALD P. BENNETT OF
COUNSEL), FOR RESPONDENT-RESPONDENT THOMAS KETCHUM.

LEONARD BERKOWITZ, ORCHARD PARK, FOR RESPONDENTS-RESPONDENTS TOWN OF
AMHERST ZONING BOARD OF APPEALS AND TOWN OF AMHERST.

HOPKINS & SORGI, PLLC, WILLIAMSVILLE (SEAN W. HOPKINS OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS ISKALO 5000 MAIN LLC AND ISKALO DEVELOPMENT
CORP.


     Appeal from a judgment of the Supreme Court, Erie County (Tracey
A. Bannister, J.), entered November 26, 2012 in a proceeding pursuant
to CPLR article 78. The judgment, inter alia, dismissed the amended
petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioners commenced this CPLR article 78
proceeding seeking to annul the determination of respondent Town of
Amherst Zoning Board of Appeals (ZBA) that a condition imposing a
height restriction for proposed new buildings on the subject parcel
(Condition No. 4) was no longer enforceable. We conclude that Supreme
                                 -2-                           1374
                                                          CA 13-00364

Court properly dismissed the amended petition.

     We reject petitioners’ contention that the ZBA’s failure to adopt
formal, written findings of fact renders its determination arbitrary
and capricious. Generally, “[f]indings of fact which show the actual
grounds of a decision are necessary for an intelligent judicial review
of a quasi-judicial or administrative determination” (Matter of South
Blossom Ventures, LLC v Town of Elma, 46 AD3d 1337, 1338, lv dismissed
10 NY3d 852 [internal quotation marks omitted]; see Matter of Paloma
Homes, Inc. v Petrone, 10 AD3d 612, 613). Where the issue is one of
pure legal interpretation of statutory terms, however, we have the
power to conduct an independent review of the applicable law (see
Matter of BBJ Assoc., LLC v Zoning Bd. of Appeals of Town of Kent, 65
AD3d 154, 160; see also Matter of Emmerling v Town of Richmond Zoning
Bd. of Appeals, 67 AD3d 1467, 1467-1468), and petitioners correctly
concede that this case involves only an issue of legal interpretation.
Under the circumstances, we conclude that the record “contain[s]
sufficient facts to permit intelligent judicial review of the . . .
determination” (Matter of Iwan v Zoning Bd. of Appeals of Town of
Amsterdam, 252 AD2d 913, 914; see Matter of Tall Trees Constr. Corp. v
Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 93; see also
Matter of Friends of Hammondsport v Village of Hammondsport Planning
Bd., 11 AD3d 1021, 1022).

     We reject petitioners’ contention that Condition No. 4 survived
the passage of respondent Town of Amherst’s Zoning Ordinance of 1976,
which continued to give effect to, inter alia, “laws, rules, [and]
regulations . . . previously adopted or issued” (§ 203-2-2.1 [1976]).
A “regulation is ‘a fixed, general principle to be applied by an
administrative agency without regard to other facts and circumstances
relevant to the regulatory scheme of [a] statute’ ” (Matter of SLS
Residential, Inc. v New York State Off. of Mental Health, 67 AD3d 813,
816, lv denied 14 NY3d 713, quoting Matter of Roman Catholic Diocese
of Albany v New York State Dept. of Health, 66 NY2d 948, 951). Here,
we conclude that Condition No. 4 is not a regulation inasmuch as it is
not a fixed, general principle. Indeed, the language of Condition No.
4 specifically and unambiguously applied the height restriction only
to new buildings proposed by a developer in June 1968. That
development never came to fruition, and the subject parcel was rezoned
in 1976. We therefore conclude that the Amherst Town Board annulled
Condition No. 4 when it rezoned the property in 1976 (cf. Matter of
D’Angelo v Di Bernardo, 106 Misc 2d 735, 737, affd 79 AD2d 1092, lv
denied 53 NY2d 606).

     We have reviewed petitioners’ remaining contentions and conclude
that they are without merit.




Entered:   February 7, 2014                      Frances E. Cafarell
                                                 Clerk of the Court
