Summary
holding that where site plan approval was not expressly provided for in the enabling statutes, site plan approval processes were merely advisory, not mandatory
Summary of this case from Roten v. City of Spring HillOpinion
June 19, 1967
In a proceeding under CPLR article 78, the Town Clerk of the Town of Wappinger appeals from a judgment of the Supreme Court, Dutchess County, dated November 17, 1966, which ordered her to issue a certificate pursuant to subdivision 1 of section 276 Town of the Town Law certifying that petitioners had submitted a site plan to the Planning Board of the Town of Wappinger for approval, and further certifying that no public hearing was held and no date for a public hearing was set although more than 30 days had expired since the submission of the site plan. Judgment reversed, on the law, with $10 costs and disbursements, and proceeding dismissed on the merits. In our opinion, the facts of this case, wherein petitioners applied for site plan approval, fall within the provisions of section 274 Town of the Town Law, and not section 276 Town of the Town Law, the latter of which sections involves subdivision plats ( Matter of Cedar Lane Hgts. Corp. v. Marotta, 17 A.D.2d 651). Despite the failure of the Planning Board to hold a hearing to act upon the site plan, it was error for the Special Term to order the Town Clerk to issue a certificate pursuant to section 276 which would automatically grant approval to the site plan. Under section 274, any action of the Planning Board would be but advisory in nature, with final authority as to the site plan resting in the Zoning Inspector pursuant to section 435.02 of the Town of Wappinger Zoning Ordinance (2 Rathkopf, Law of Zoning and Planning, p. 54-10, n. 2; Matter of Milton Point Assn. v. Clark, 14 Misc.2d 633, 638). The Zoning Ordinance prescribes that in the event no report on the site plan is made by the Planning Board within 45 days from submission, the Zoning Inspector shall act on the application for a permit. Relief in the nature of mandamus does not lie where another remedy is available or provided at law ( Matter of Towers Management Corp. v. Thatcher, 271 N.Y. 94, 97). Such a remedy exists by application to the Zoning Inspector for a permit pursuant to section 274 Town of the Town Law and section 435.02 of the Zoning Ordinance. Appeal from an adverse decision of the Zoning Inspector may be taken to the Zoning Board of Appeals. Only after a similar unfavorable determination by the Zoning Board may the applicants resort to the Supreme Court for review by means of a proceeding pursuant to article 78. Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Nolan, JJ., concur. [ 52 Misc.2d 132.]