Seeler v. Planning Board

53 A.D.2d 632, 384 N.Y.S.2d 207, 1976 N.Y. App. Div. LEXIS 13340

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1976
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 inter alia to (1) review a determination of the Planning Board of the Town of East Hampton, dated September 25, 1974, which, after a hearing, gave final approval to respondent Green Maple Homes, Inc.’s, subdivision plan and (2) compel the said board to grant petitioners’ application for a subdivision waiver, (a) petitioners appeal from (i) so much of a judgment of the Supreme Court, Suffolk County, entered July 31, 1975, as affirmed the planning board’s denial of their subdivision waiver application and (ii) a further judgment of the same court, entered March 26, 1976, which, inter alia, dismissed the amended petition and (b) the planning board cross-appeals from so much of the judgment entered March 26, 1976 as fails "to grant that part of [its] cross-motion [which sought] to dismiss the Order to Show Cause of January 19, 1976 for lack of jurisdiction”. Judgment entered July 31, 1975 affirmed insofar as appealed from, and judgment entered March 26, 1976 affirmed, with one bill of costs jointly to respondent-appellant and respondent. We hold that Special Term retained jurisdiction of the proceeding when it remanded the matter to the planning board for findings of fact; accordingly, petitioners were not required to commence a new article 78 proceeding to review these findings. We hold that the planning board’s determinations are supported by substantial evidence. Latham, Acting P. J., Margett, Damiani, Rabin and Shapiro, JJ., concur.