ALLENS CREEK CORBETT GLEN PRESERVATION GROUP v. TOWN OF PENFIELD PLANNING BOARD (1998)

On September 5, 1996, respondent, Town of Penfield Planning Board (Planning Board), adopted a resolution approving a site plan and subdivision application upon the applicant's compliance with 39 conditions.   A letter notifying the applicant of the decision of the Planning Board was filed in the Town Clerk's office the following day but the minutes of the September 5th meeting of the Planning Board incorporating its resolution were not filed in the Town Clerk's office until September 11, 1996.   Petitioners commenced this CPLR article 78 proceeding on October 10, 1996 to challenge approval of the site plan and subdivision application.   The Planning Board moved to dismiss the proceeding, asserting that the letter “Notice of Decision” filed on September 6, 1996 constituted its “decision” and that petitioners failed to commence the proceeding within 30 days of the filing of the “decision” with the Town Clerk, as required by Town Law § 274-a (11) and § 282.

Supreme Court erred in granting that motion.   The letter “Notice of Decision” was merely notice that a decision was made.   It did not set forth the conditions imposed by the Planning Board or the vote of the Planning Board.   In the circumstances of this case, the minutes of the September 5th meeting of the Planning Board incorporating the resolution of the Planning Board and its vote on that resolution constitute the “decision” (see, Matter of King v. Chmielewski, 146 A.D.2d 102, 105, 539 N.Y.S.2d 546, affd. 76 N.Y.2d 182, 556 N.Y.S.2d 996, 556 N.E.2d 435;  Matter of Powell v. Town of Coeymans, 238 A.D.2d 788, 656 N.Y.S.2d 460;  Matter of Pickett v. Town of Tusten Zoning Bd. of Appeals, 169 A.D.2d 906, 907, 564 N.Y.S.2d 625;  see also, Matter of Kennedy v. Zoning Bd. of Appeals, 78 N.Y.2d 1083, 1084, 578 N.Y.S.2d 120, 585 N.E.2d 369;  Matter of De Bellis v. Luney, 128 A.D.2d 778, 779, 513 N.Y.S.2d 478;  cf., Matter of McCartney v. Incorporated Vil. of E. Williston, 149 A.D.2d 597, 598, 540 N.Y.S.2d 456).   The proceeding was timely commenced within 30 days of the filing of those minutes with the Town Clerk (see, Town Law § 274-a [11];  § 282).

Judgment unanimously reversed on the law without costs, motion denied and petition reinstated.

MEMORANDUM: