Thurman v. Snowden
| Citation | 28 A.D.2d 705,280 N.Y.S.2d 945 |
| Parties | In the Matter of Harold THURMAN et al., Respondents, v. Elaine H. SNOWDEN, Town Clerk, Town of Wappinger, Appellant. |
| Decision Date | 19 June 1967 |
| Court | New York Supreme Court Appellate Division |
Before BRENNAN, Acting P.J., and RABIN, HOPKINS, BENJAMIN and ,NOLAN, JJ.
MEMORANDUM BY THE COURT.
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 section 276, subdivision 1 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 thirty 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 of the Town Law, and not section 276 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, 230 N.Y.S.2d 655). 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, The Law of Zoning and Planning, p. 54--10, n. 2; Matter of Milton Point Assn v. Clark, 14 Misc.2d 633, 638, 179 N.Y.S.2d 624, 629). 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, 2 N.E.2d 273, 274). Such a remedy exists by application to the Zoning Inspector for a permit pursuant to section 274 of the Town Law and section 435.02 of the Zoning Ordinance. Appeal...
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