I cannot agree with the majority that the order should be reversed, the determination of the Board of Zoning Appeals annulled and the matter remitted for further proceedings. It is my opinion that the determination of the board should be upheld and the order affirmed. There was presented to the superintendent of buildings, and later to the appeal board, the simple application for a permit to demolish an existing dwelling and to erect two masonry buildings “to be used for office, warehouse and storage and the manufacture of cement blocks, cinder blocks and accessories.” The applicant for the permit did not seek a variance or a special exception. The building superintendent denied the application on the ground that the proposed “use” did not meet “ the requirements of the building zone ordinance.” The Board of Zoning Appeals, however, after a hearing, found that the ordinance did not prohibit such use. The matter brought out at the hearing, statements of counsel and observations by the board in reference to a “variance” and ‘‘ special exception ’’ are entirely irrelevant and should be disregarded as surplusage. The sole question for the Board of Appeals to determine and the only question upon which such board was called upon to pass was whether the proposed “use” was violative of the ordinance restrictions. The appeal of the applicant merely brought up for review the action of the building superintendent and nothing else. Had there been application for a variance or special treatment, such application would not have been an appeal from the decision of the building superintendent but a direct application to the Board of Zoning Appeals in the first instance, pursuant to statute and the ordinance. So, as I see it, on the appeal to this court, we may only determine whether there was substantial evidence to sustain the findings of the board.
I wholly agree with the majority that if the proposed use was one prohibited by the provisions of the ordinance, it was pursuant to subdivision 32 of section 91-22 of the ordinance. There was no discretion in the Board of Appeals as to granting or refusing the permit, provided the proposed use was not within said subdivision 32. In other words, was the proposed use one embraced within: “ Any trade, industry or use which is or may be injurious, noxious or offensive by reason of *222vibration, or noise, or the emission of dust, odor, smoke, gas or fumes ”?
It is riot presently necessary to pass upon the question as to whether, on an application to the Board of Appeals by way of appeal from a denial of a building permit, a hearing is required. The fact is that there was a hearing on notice to all interested parties. The récord speaks for itself as to what the objections were and there is no dispute as to thé right of the Board of Appéals to use, in addition to Other proof, its knowledge independently acquired.
As I view it, the question presented is whether on this appeal to the board for a building permit* as distinguished from an application in the first instance for a variance or special treatment* the findings have support iñ thé record. The gist of the “findings of fact” wa's: “ That the use* by said Flower City Builders Supply Corp., of said premises for office* warehouse, storage, and thé manufacture of cément blocks, cinder blocks and accessories, -is not one which is or may be injurious, noxious or offensive by reason of vibration or noise* or the emission of -dust* Odor, smoké, gas or fumes.” The board found that the use proposed was no't within the prohibition of subdivision 32. What more could the board say unless it stated the facts in other words, i.e., that the manufacture of cement and cinder blocks did not and would not cause vibration or noise or the emission of dust* odor, smoke* gas or fumes? It is my opinion that this finding was amply sustained by the proof taken at the •hearing^ supplemented by the common knowledge and experience of ínémbers of the board. It is significant that upon this appeal, appellants merely argue that cement block manufacturing is a prohibited use. As to subdivision 32 of the section, they merely say that their counsel explained that “ the heavy trucks Would rumble so near to the precision tools and machines that the vibration and dust would ruin their business.” The -appellants on this appeal do not even claim that the manufacture of the blocks would cause dust and vibration-; only that trucks passing would, do so. Of course, there is nothing in the ordinance referring to the Use of trucks.
Let us look to what was brought out at the hearing before the board. The attorftey for the appellants stated his clients’ objection: “The opposition is not so much against the pl-aUt itself, but the weight of -heavy trucks going by the front door Will put the tools completely out of kilter ”. He made no claim of dust or vibration arising from the use of the premises in making the blocks. It was stated by the representative of the *223Supply Corp. that “ in the course of our operation there is no dust., * * * No soft coal will be used. It will be a modern plant and we will use, either oil or gas.” Then the. attorney for the appellants again referred to vibration saying: “ there is not 3 ft. between the road and the front of our plant and those heavy trucks are bound to make a vibration.” Again no claim was made that the proposed use of the premises would cause vibration. Appellants’ - attorney asked the Supply Corp. representative about “dust control and where they-will store their cement. ’ ’ The answer was: ‘‘ All within the plant. Nothing outside whatsoever.”
The objectors made no proof, and, in effect, no claim that the proposed' use would, be in violation of subdivision 32. "What proof was made was to the contrary. The real objection was to anticipated vibration of trucks passing upon the road where appellants.’ plant is located. Even if such were shown to be a fact, it would be no ground for refusing the permit.
The- order should be affirmed.
All concur, except Kimball and Goldman, JJ., who dissent and, vote for affirmance in an opinion by Kimball, J., in which Goldman, J., concurs.
Present — McCurn, P: J., Kimball, Williams, Goldman and Halpern, JJ.
Order reversed, without costs of this appeal to any party and determination of the Board of Zoning Appeals annulled and matter remitted to the Board of Zoning Appeals for further proceedings in accordance with the opinion by Halpern, J.