Opinion
April 13, 1964
In a proceeding pursuant to article 78 of the former Civil Practice Act, to compel the respondent Town Clerk of the Town of Greenburgh to issue a certificate pursuant to statute (Town Law, § 276, subd. 1), stating the date of submission of a subdivision plat and the failure of the Town Planning Board within 30 days thereafter to take action thereon, the petitioner appeals from a final order of the Supreme Court, Westchester County, made October 17, 1963 upon the decision of the court, which dismissed its petition. Order reversed on the law and the facts, with $10 costs and disbursements; petition granted, and the respondent is directed to issue the certificate pursuant to statute (Town Law, § 276, subd. 1). The findings of fact implicit in the Special Term's decision, insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion the facts of this case demonstrate that the Town Planning Board would not allow a public hearing on a proposed subdivision of land unless it had previously determined that it would approve the plan. This it may not do. The proposed plat having been submitted for final approval pursuant to the proper local procedure, the Town Planning Board was required to grant a public hearing pursuant to subdivision 1 of section 276 Town of the Town Law ( Matter of Levin v. Thornbury, 2 A.D.2d 774; Matter of Thornwood Enterprises v. Bloom, 20 A.D.2d 852). We decide this case solely on petitioner's rights under the statute (Town Law, § 276, subd. 1). We do not pass upon the question of the necessity of compliance by petitioner with the local zoning ordinance or with other applicable ordinances and regulations; that question is not before us. Ughetta, Acting P.J., Kleinfeld, Brennan, Hill and Hopkins, JJ., concur.