| Matter of South Blossom Ventures, LLC v Town of Elma |
| 2007 NY Slip Op 10199 [46 AD3d 1337] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of South Blossom Ventures, LLC, Appellant, v Townof Elma et al., Respondents. |
—[*1] Sargent & Collins, LLP, Williamsville (Richard G. Collins of counsel), forrespondents-respondents.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Joseph D.Mintz, J.), entered October 26, 2006 in a proceeding pursuant to CPLR article 78. The judgmentdismissed the petition.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously reversed on the law without costs and the matter is remitted to Supreme Court, ErieCounty, for further proceedings in accordance with the following memorandum: Petitionercommenced this CPLR article 78 proceeding seeking to annul the determination of the TownBoard of respondent Town of Elma denying petitioner's application for site plan approval and apreliminary business use permit and issuing a positive declaration pursuant to article 8 of theEnvironmental Conservation Law (State Environmental Quality Review Act). Respondentsmoved to dismiss the petition pursuant to CPLR 7804 for failure to state a cause of action, andSupreme Court sua sponte converted the motion to one for summary judgment and dismissed thepetition upon determining that the action of the Town Board in denying petitioner's applicationwas not arbitrary or capricious.
We note at the outset that the court erred in converting the motion to dismiss to one forsummary judgment and dismissing the petition without providing adequate notice to the partiesthat it intended to do so (see CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506[1988]). Here, the Town Board denied petitioner's application for site plan approval and apreliminary business use permit without providing any reasoning for the denial, and we note inaddition that the Town of Elma Planning Board had approved the application. " 'Findings of factwhich show the actual grounds of a decision are necessary for an intelligent judicial review of aquasi-judicial or administrative determination' " (Matter of Perrella v Suffolk CountyClassification & Salary Appeals Bd., 117 AD2d 603, 604 [1986]; see Matter of Paloma Homes, Inc. vPetrone, 10 AD3d 612 [2004]). We therefore reverse the judgment and remit the matterto Supreme Court for further proceedings consistent with our decision. Present—Gorski,J.P., Smith, Centra, Lunn and Peradotto, JJ.