
    In the Matter of Colonial Sand & Stone Co., Inc., Appellant, v. William Johnston, Jr., et al., Constituting the Board of Appeals of the Town of Bethlehem, Respondents.
    Argued October 31,1967;
    decided December 7, 1967.
    
      
      Arthur Karger and Edward L. Bookstein for appellant.
    
      Karl H. Schrade for respondents.
   Memorandum. Although petitioner applied to the Town Board of Appeals for a special permit to erect a ready-mix concrete plant on its land in a heavy industrial zone, it did so because the town building inspector supervisor had ruled that this would be necessary. The petitioner expressly argued before the board that the proposed plant was a permitted use under the zoning ordinance in a heavy industrial zone. There is no substantial evidence in the record that the plant would £ £ be offensive because of injurious or obnoxious * * # dust or other objectionable features” within the terms of the zoning ordinance requiring a special permit. Therefore, a special permit was not required and, in view of the ruling of the building inspector that a permit would be necessary and of the specific objection to its necessity by petitioner in its appearance before the board, this question was not waived by making the application for a special permit.

The order should be reversed, without costs, and judgment granted annulling the determination of the Board of Appeals.

Breitel, J.

(dissenting). There is cumulative evidence in the record that the operation of the ready-mix concrete plant, despite control equipment supplied to meet State specifications, would produce offensive dust on discharging the primary ingredients, loading of trucks, and transit of the trucks through the community. This evidence appears as candid admissions made by petitioner's expert. Consequently, petitioner’s plant was subject to the zoning regulations requiring a special permit (art. V, § B, subd. 4). On such application the balancing of public convenience as required by article NVT1I of the Zoning Ordinance merited, if it did not indeed require, the balancing of the need for additional concrete plants in the community against the palpable, albeit controlled, effusions from such operations. A test of substantial evidence is not whether the court is moved by the quantum of evidence but whether it was unreasonable or capricious for the Town Board to be so moved. The Appellate Division exercised precisely such judicial restraint although it suggested that if it had the discretion, which it did not, it might have determined the application differently.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Fuld and Judges Van Voorhis, Scileppi, Bergan Keating concur in memorandum; Judge Burke concurs in result; Judge Breitel dissents and votes to affirm in an opinion.

Order reversed, without costs, and judgment granted annulling the determination of the Board of Appeals in a memorandum.  