Baker-Firestone, Inc. v. Bowman

In a proceeding pursuant to article 78 of the CPLR (1) to compel the issuance of a building permit and (2) to declare null and void (a) a certain provision of the Clarkstown Zoning Ordinance and (b) a decision of the Clarkstown Planning Board, the appeals are (1) from so much of an order of the Supreme Court, Rockland County, entered April 24, 1973, as, after dismissing the petition, (a) directed the appellant Building Inspector, upon submission of site plans to him, not to consider the question of a second access road as determined by the appellant Planning Board and (b) further directed the appellant Building Inspector to make a determination within 30 days after submission of such site plans for approval and (2) as limited by appellants’ brief, from so much of a further order of the same court, entered May 21, 1973, as, upon reargument, adhered to the original determination. Appeal from order entered April 24, 1973 dismissed, without costs. *739That order was superseded by the order granting reargument. Order entered May 21, 1973 modified, on the law, without costs, by striking the directions imposed on the appellant Building Inspector as set forth in the order entered April 24, 1973. As so modified, order affirmed insofar as appealed from, without costs. Insofar as the petition sought review of a decision of the appellant Planning Board, it was properly dismissed since such a decision, being merely dvisory, is not subject to review under article 78 of the CPLR (Matter of Thurman v. Snowden, 28 A D 2d 705; Town Law, § 274). In its original decision, Special Term stated that section 8.225 of the Clarkstown Zoning Ordinance was invalid, but the order made on that decision did not so state and the petition was dismissed on appellants’ motion without the interposition of an answer. Petitioner has not appealed. While under the facts of this case we agree with the observations of Special Term as to the invalidity of section 8.225 of the Clarkstown Zoning Ordinance, no directives should have been incorporated in the order, since the petition was dismissed. Latham, Acting P. J., Shapiro, Gulotta, Christ and Benjamin, JJ., concur.