In a proceeding to review a determination of the Town Board of the Town of Hempstead which denied an application for permission to install gasoline storage tanks and to conduct a gasoline service station on premises described in the petition, the Town Board appeals from an order of the Supreme Court, Nassau County, entered December 1, 1959, which: (1) annulled its determination denying the permits; and (2) directed the issuance of the permits. Order reversed on the law and the facts, without costs, determination of the Town Board confirmed, and petition dismissed, without costs. Findings of fact of the Special Term contained in its decision-opinion, insofar as such findings may be inconsistent herewith, are reversed, and new findings are made as indicated herein. In making the determination under review, the Town Board exercised judgment or discretion of a character which is reviewable as to reasonableness by a proceeding pursuant to article 78 of the Civil Practice Act (Matter of Lemir Realty Co. v. Larkin, 8 A D 2d 970, 971; Matter of Rothstein v. County Operating Corp., 6 A D 2d 711, affd. 6 N Y 2d 728). However, in determining whether the permits applied for should be issued as special exceptions, the Town Board was not required to conform with standards or conditions formulated to guide their action. Whether or not the permits should be granted under the circumstances disclosed was left to their untrammelled, but of course, not capricious discretion, with which the courts may not interfere except on proof that refusal to grant the permits was based solely on grounds which as a matter of law the board might not consider (Matter of Larkin Co. v. Schwab, 242 N. Y. 330, 335). In its answer the board has stated the grounds and the facts upon which its determination to deny the permits was made. There is no issue with respect to the facts so stated. Petitioner, by its failure to serve a reply, conceded their existence (Matter of Bering v. Patterson, 2 A D 2d 820; Matter of Bernola v. Fletcher, 280 App. Div. 870; Entress v. Sours, 272 App. Div. 861); and, in any event, petitioner does not dispute the facts but only the conclusions drawn from the facts. It claims that the conclusions drawn by the Town Board are arbitrary and capricious. It was for the board to determine, however, on consideration of the facts, whether the permits should be denied because the benefit to be derived from permitting the storage of gasoline and the conduct of a service station would not outweigh the disadvantages connected therewith. In reaching its conclusions and in
Lemir Realty Corp. v. Larkin
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