You are here: / / PURSUANT TO THE TOWN CODE, THE PLANNING BOARD DID NOT HAVE THE POWER TO...
, ,

PURSUANT TO THE TOWN CODE, THE PLANNING BOARD DID NOT HAVE THE POWER TO INTERPRET A LOCAL ZONING LAW TO APPROVE A DEVELOPMENT PROJECT, MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-judge dissent, determined the planning board did not have the power to issue a special use permit and site plan approval for a commercial park:

… [T]he jurisdiction of a zoning board of appeals is appellate in nature (see Town Law § 267-a [4]). Nevertheless, a town possesses the authority to enact a local law or ordinance vesting its zoning board of appeals with original jurisdiction (see Town Law § 267-a [4]), including, for example, to address questions of zoning code interpretation … . Here, the Code of the Town of Thompson expressly provides that the ZBA may pass on matters of interpretation as to whether a proposed use is permitted under the zoning code either “[o]n appeal from a[ ] . . . determination made by an administrative official, or on request by an official, board or agency of the Town” (Code of the Town of Thompson § 250-46 [A] …), the latter option being what was requested by petitioners. * * *

… [I]t is evident that a genuine question exists as to whether the project will fall within a permissible or prohibited use, and the Planning Board improperly resolved this issue on its own. “Planning boards are without power to interpret the local zoning law, as that power is vested exclusively in local code enforcement officials and the zoning board of appeals” … . As such, the issue should have been resolved either by the local code enforcement officer, or by the ZBA upon referral from the Planning Board (see Code of the Town of Thompson §§ 250-41 [C], 250-46 [A] … . Matter of Smith v Town of Thompson Planning Bd., 2024 NY Slip Op 06085, Third Dept 12-5-24

Practice Point: Check the Town Law and the local Town Code to determine whether a Planning Board has the power to act. Here the Planning Board did not have the power to interpret a local zoning law and determine, on its own, that the proposed development is a permissible use of the land.​

 

You might also like
PETITION SEEKING TRANSFER OF REAL PROPERTY FROM DECEDENT TO PETITIONER BY REFORMATION OF THE DEED OR A CONSTRUCTIVE TRUST, AS WELL AS THE DISTRIBUTION OF TRUST ASSETS TO DECEDENT’S GRANDCHILDREN, AS OPPOSED TO DECEDENT’S SURVIVING DESCENDANTS, PROPERLY DENIED (THIRD DEPT).
DISCOVERY OF THE COMPLETE DATABASE SHOWING THE DISTRIBUTION OF THE TYPE OF CLOTHES WHICH CAUGHT FIRE WAS APPROPRIATE, MOTION TO AMEND ANSWER PRECLUDED BY DISINGENUOUS BEHAVIOR WHICH PREJUDICED CODEFENDANTS (THIRD DEPT).
HERE THE FACILITY REVIEW OFFICER VIEWED THE VIDEO EVIDENCE AND EXPRESSED THE CONCLUSION PETITIONER HAD VIOLATED PRISON RULES BEFORE THE DISCIPLINARY HEARING; THAT SAME OFFICER DECIDED PETITIONER’S ADMINISTRATIVE APPEAL; THAT SCENARIO VIOLATED DUE PROCESS; THE MISBEHAVIOR DETERMINATION WAS ANNULLED (THIRD DEPT).
Failure to Provide Meaningful Employee Assistance in Preparing for the Hearing Was a Constitutional, Not Merely Regulatory, Violation Requiring Expungement—Criteria Discussed in Some Depth
CONFLICTING EVIDENCE ABOUT THE ABILITY TO SEE ICE ON THE PARKING LOT RAISED A TRIABLE QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (THIRD DEPT).
THE TRIAL PROOF COULD BE INTERPRETED TO SUPPORT AN INTENT TO CAUSE SERIOUS PHYSICAL INJURY (ASSAULT SECOND) OR AN INTENT TO CAUSE PHYSICAL INJURY (ASSAULT THIRD); DEFENDANT’S REQUEST THAT THE JURY BE INSTRUCTED ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THAT COUNT (THIRD DEPT).
THE VERDICT FINDING DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS FOUND IN HIS SISTER’S APARTMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT). ​
THE NYS DEPARTMENT OF HEALTH’S CLARIFICATION OF BILLING PRACTICES FOR PHYSICIANS WHO DISPENSE PRESCRIPTION DRUGS UNDER THE MEDICAID PROGRAM IS VALID; THE CLARIFICATION IS NOT A “RULE” AND IS NOT VOID FOR VAGUENESS (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE ZONING REGULATION WHICH REQUIRES PAYMENT TO AN “ARTS FUND” OF... DEFENDANT’S 140-YEARS-TO-LIFE SENTENCE IN THIS PREDATORY-SEXUAL-ASSAULT-OF-A-CHILD...