Gershowitz v. Planning Bd. of Town of Brookhaven
| Decision Date | 18 December 1980 |
| Citation | 52 N.Y.2d 763,436 N.Y.S.2d 612 |
| Parties | , 417 N.E.2d 1000 In the Matter of Sam GERSHOWITZ, Appellant, v. PLANNING BOARD OF the TOWN OF BROOKHAVEN et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
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.
Order reversed, with costs, and the judgment of Supreme Court, Suffolk County, reinstated in a memorandum.
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