Mialto Realty, Inc. v. Town of Patterson

112 A.D.2d 371, 491 N.Y.S.2d 825, 1985 N.Y. App. Div. LEXIS 56504

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 22, 1985
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of Patterson, made August 9, 1984, which denied petitioner’s application for site plan approval, the appeal, purportedly as a matter of right, is from an order of the Supreme Court, Putnam County (Wood, J.), dated October 29, 1984, which denied appellants’ motion to dismiss the petition.

On the court’s own motion, appellants’ notice of appeal is treated as an application for leave to appeal, said application is referred to Justice Rubin and leave to appeal is granted by Justice Rubin (CPLR 5701 [b] [1]).

Order affirmed, without costs or disbursements.

The Planning Board of the Town of Patterson was without authority to deny petitioner’s application for site plan approval on the ground that, under its interpretation of the local zoning ordinance, the proposed use was not permitted. "The power to interpret the provisions of the local zoning law is vested exclusively in the zoning board of appeals” (Rattner v Planning Commn., 103 AD2d 826; see, Town Law, §§ 267, 274-a; 113 Hillside Ave. Corp. v Village of Westbury, 27 AD2d 858; Matter of Kalen, 248 App Div 777). The local planning board shall not be permitted to disapprove a use under the guise of denying site plan approval (Matter of Gershowitz v Planning Bd., 69 AD2d 460, revd on other grounds 52 NY2d 763). Thus, Special Term properly denied appellants’ motion to dismiss the petition. Brown, J. P., Rubin, Lawrence and Kunzeman, JJ., concur.