Fusaro v. Ziemba

46 A.D.2d 688, 360 N.Y.S.2d 278, 1974 N.Y. App. Div. LEXIS 3812

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1974
• Status: Published

Opinion

In a proceeding pursuant to article 78 of the CPLR inter alia to annul a determination of the planning board of the Town of Greenburgh which denied petitioners’ application for approval of a subdivision of land, the planning board appeals from a judgment of the Supreme Court, Westchester County, dated December 31, 1973, which granted the application to the extent of vacating the “ alleged ” determination of the planning board, deeming petitioners’ final subdivision plat approved and directing the Town Clerk of the town to issue a certificate. Judgment affirmed, without costs. The issue presented is the timeliness of the Planning Board’s decision upon the application for approval of the subdivision plat. According to a letter by the planning board to petitioners, dated October 1, 1973, the decision was made at a regular meeting of the planning board on September 17, 1973, but the meeting minutes show the meeting was held on September 19, 1973. Special Term determined that the decision was made at an executive session and not a regular meeting and that the planning board did not issue a resolution of disapproval within 45 days after the public hearing held on August 15, 1973 as required by subdivision 4 of section 276 of the Town Law. This resulted in the approval of the map subdivision by operation of law, by virtue of the passage of time as provided in the Town Law, since the minutes were not reviewed for final determination until October 17, 1973 (Matter of Fullam v. Kronman, 51 Mise 2d 1079, affd. 31 A D 2d 947, affd. 26 N Y 2d 725). The applicable rule is set forth in the text-of Anderson, New York Zoning and Practice (2d ed., vol. 1, § 15.07, p. 676) as follows: “ The 45 days within which a planning board must make its decision begins to run when the plat is filed with the required endorsements, and the filing fee is paid. The planning board has not acted within the required 45 days if it has voted in executive session, to disapprove, has made no decision in writing, has not informed the applicant, and has not certified its decision to the county clerk. However, a planning board has not failed to act within 45 days simply because it has not filed its decision ‘within that period.” The determination of Special Term should accordingly be affirmed. Hopkins, Acting P. J., Cohalan, Brennan, Benjamin and Munder, JJ., concur.