Agenda - Planning Commission - 08/05/1997

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Z.B. July 10, 1997 - Page 7 ~ within 45 days after the last hearing before the board or hearing officer." The code also said a board's failure to produce written findings within 45 days would automatically result in the application's approval. After the borough filed its written report, the court reversed the board's decision. The court didn't decide whether the board's decision was valid on the merits, but said the variance was acceptable by the state's Municipalities . Planning Code because the board did not file a written decision within 45 days of its hearing. In addition, it found the board's letter stating its variance denial to Mullen was insufficient, because there was no evidence the votes were recorded, and thus no evidence that a decision had been rendered. The borough appealed. DECISION: Vacated and returned to the lower court. Although the votes weren't recorded and the board delayed in filing written findings, there was proof of the decision - the letter sent to Mullen. It was signed by the board's solicitor, and it explained the decision, leaving no doubt that the board ruled against the application. Though the board should have been more conscientious in filing its report, the delay was not enough to consider Mullen's application approved. Because the lower court didn't rule on the merits of Mullen's appeal, the case had to be returned to it for additional proceedings. Special Use - Did town board misdiagnose doctor's expansion plans? Chernick v. McGowan, 656 N.Y.S. 392 (New York) 1997 In 1985, Chernick, a neurologist, bought a house in Bay Shore, N.Y. The house had a small dental office from which Chernick based his neurological practice. As Chernick's practice grew, he eliminated the house's residential use and expanded the medical facility. To accommodate the increased number of patients, Chernick added parking spaces to the property and opened a right-of-way on the property's southern portion. After making these changes, Chernick asked the town for a special-use permit to legalize the property's existing use. The town planning board recom- mended approval, but on the condition that Chernick accept 25 restrictions on his practice's operation. Chernick rejected the restrictions and suggested an alternative plan. At a public hearing, Chernick had three expert witnesses testify about the potential impact of his plan and its benefit to the neighborhood. The town planner and several of Chernick's neighbors testified in opposition of the plans. The town board denied the special-use permit. Chernick appealed to court 118 days after the board's decision. The town and the town board asked the court to dismiss the case, arguing that the 3D-day statute of limitations had long expired before Chernick filed a lawsuit. The court refused to dismiss the case, finding the statute of limitations did not apply because the town board had not delegated its authority to grant a q;J