Gershowitz v. Planning Bd. of Town of Brookhaven

CourtNew York Court of Appeals
Writing for the CourtCOOKE
Citation52 N.Y.2d 763,436 N.Y.S.2d 612
Decision Date18 December 1980
Parties, 417 N.E.2d 1000 In the Matter of Sam GERSHOWITZ, Appellant, v. PLANNING BOARD OF the TOWN OF BROOKHAVEN et al., Respondents.

Page 612

436 N.Y.S.2d 612
52 N.Y.2d 763, 417 N.E.2d 1000
In the Matter of Sam GERSHOWITZ, Appellant,
v.
PLANNING BOARD OF the TOWN OF BROOKHAVEN et al., Respondents.
Court of Appeals of New York.
Dec. 18, 1980.

Page 613

Oscar J. Bloom and Christopher Steele, Smithtown, for appellant.

Martin J. Kerins, Town Atty. (David P. Fishbein, Center Moriches, of counsel), for respondents.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division, 69 A.D.2d 460, 419 N.Y.S.2d 976, should be reversed, with costs, and the judgment of Special Term reinstated.

The Brookhaven Zoning Board of Appeals, having issued petitioner a special use permit to operate an automobile shredder plant, determined that petitioner's proposed use was in compliance with the Brookhaven Town Code. The use being so approved, the Brookhaven Planning Board was without power to disapprove petitioner's site plan on the ground that petitioner's use violated the Brookhaven Town Code. (See Brookhaven Town Code, § 85-160A; 2 Rathkopf, Law of Zoning and Planning (4th ed), § 30.04.) Thus, we agree with the Appellate Division that the planning board's disapproval of petitioner's site plan was a nullity.

We cannot, however, accept the Appellate Division's determination that the issuance of petitioner's special use permit by the Brookhaven Zoning Board of Appeals was beyond the board's legislative authority. The issuance of petitioner's special use permit was never challenged in an appropriate proceeding (see Town Law, § 267, subd. 7) and was not before the Appellate Division in this case. In fact, the only matter before the court was the disapproval of petitioner's site plan by the Brookhaven Planning Board. Inasmuch as no proceeding was ever brought to challenge the issuance of petitioner's special use permit, the proposed use of the automobile shredder was rendered unassailable. Thus, the question whether issuance of the special use permit was authorized should not have been addressed by the Appellate Division as that determination was not before the court for review.

COOKE, C. J., and JASEN, GABRIELLI, WACHTLER and FUCHSBERG, JJ., concur.

JONES and MEYER, JJ., dissent and vote to affirm in the following memorandum: We agree with the analysis and disposition at the Appellate Division and would accordingly give effect to the stipulation of judgment absolute.

Order reversed, with costs, and the judgment of Supreme Court, Suffolk County, reinstated in a memorandum.

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11 practice notes
  • Moriarty v. Planning Bd. of Village of Sloatsburg
    • United States
    • New York Supreme Court — Appellate Division
    • September 2, 1986
    ...see also, Matter of Gershowitz v. Planning Bd. of Town of Brookhaven, 69 A.D.2d 460, 473-474, 419 N.Y.S.2d 976, revd. on other grounds 52 N.Y.2d 763, 436 N.Y.S.2d 612, 417 N.E.2d 1000). In essence, a site plan shows the proposed design and layout of the improvements to be placed on a Site p......
  • Apostolic Holiness Church v. Zoning Bd. of Appeals of Town of Babylon
    • United States
    • New York Supreme Court Appellate Division
    • October 30, 1995
    ...Appeals" (Matter of Esposito Bldrs. v. Coffman, 183 A.D.2d 828, 829, 584 N.Y.S.2d 73; see, Matter of Gershowitz v. Planning Bd., 52 N.Y.2d 763, 436 N.Y.S.2d 612, 417 N.E.2d 1000; Moriarty v. Planning Bd., 119 A.D.2d 188, 506 N.Y.S.2d 184; Town of Babylon Code § A religious institution ......
  • Cellco P'ship v. Town of Colonie, 1:10-cv-581 (GLS/ATB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • November 28, 2011
    ...the ZBA's contrary determination was conclusive. (See Dkt. No. 18, Attach. 44 at 14); see also Gershowitz v. Planning Bd. of Brookhaven, 52 N.Y.2d 763, 765 (1980) (noting where a use is approved by the ZBA, the Planning Board is "without power to disapprove [the] petitioner's site plan......
  • Rattner v. Planning Com'n of Village of Pleasantville, No. 1
    • United States
    • New York Supreme Court Appellate Division
    • December 13, 1989
    ...Whalen, supra ), after first exhausting their administrative remedies (see, Matter of Gershowitz v. Planning Bd. of Town of Brookhaven, 52 N.Y.2d 763, 436 N.Y.S.2d 612, 417 N.E.2d 1000; Steinberg v. Sea Gate Assn., 118 A.D.2d 558, 498 N.Y.S.2d 869; Meyermac Elmhurst v. Esnard, 111 A.D.2d 78......
  • Request a trial to view additional results
11 cases
  • Moriarty v. Planning Bd. of Village of Sloatsburg
    • United States
    • New York Supreme Court — Appellate Division
    • September 2, 1986
    ...see also, Matter of Gershowitz v. Planning Bd. of Town of Brookhaven, 69 A.D.2d 460, 473-474, 419 N.Y.S.2d 976, revd. on other grounds 52 N.Y.2d 763, 436 N.Y.S.2d 612, 417 N.E.2d 1000). In essence, a site plan shows the proposed design and layout of the improvements to be placed on a Site p......
  • Apostolic Holiness Church v. Zoning Bd. of Appeals of Town of Babylon
    • United States
    • New York Supreme Court Appellate Division
    • October 30, 1995
    ...Zoning Appeals" (Matter of Esposito Bldrs. v. Coffman, 183 A.D.2d 828, 829, 584 N.Y.S.2d 73; see, Matter of Gershowitz v. Planning Bd., 52 N.Y.2d 763, 436 N.Y.S.2d 612, 417 N.E.2d 1000; Moriarty v. Planning Bd., 119 A.D.2d 188, 506 N.Y.S.2d 184; Town of Babylon Code § A religious institutio......
  • Cellco P'ship v. Town of Colonie, 1:10-cv-581 (GLS/ATB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • November 28, 2011
    ...the ZBA's contrary determination was conclusive. (See Dkt. No. 18, Attach. 44 at 14); see also Gershowitz v. Planning Bd. of Brookhaven, 52 N.Y.2d 763, 765 (1980) (noting where a use is approved by the ZBA, the Planning Board is "without power to disapprove [the] petitioner's site plan on t......
  • Rattner v. Planning Com'n of Village of Pleasantville, No. 1
    • United States
    • New York Supreme Court Appellate Division
    • December 13, 1989
    ...Whalen, supra ), after first exhausting their administrative remedies (see, Matter of Gershowitz v. Planning Bd. of Town of Brookhaven, 52 N.Y.2d 763, 436 N.Y.S.2d 612, 417 N.E.2d 1000; Steinberg v. Sea Gate Assn., 118 A.D.2d 558, 498 N.Y.S.2d 869; Meyermac Elmhurst v. Esnard, 111 A.D.2d 78......
  • Request a trial to view additional results

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