Development

Court of Appeals

(Opinion by Kaye, C.J.)

In two actions by landowners seeking damages pursuant to 42 USC sec. 1983, landowners appealed from Appellate Division orders dismissing landowners' complaints. In each case, the Court of Appeals affirmed, holding that the landowner had not established a constitutional violation.

In the first action, Bower sought damages from the town of Pleasant Valley for violating its due process and equal protection rights by refusing to approve its subdivision application. Bower planned a 91-acre subdivision, with 88 acres in the Town of Poughkeepsie and three in Pleasant Valley. Poughkeepsie approved the subdivision, conditioned on Pleasant Valley's approval of the three-acre subdivision, which included an access road. Pleasant Valley, however, denied the application. When Bower brought an article 78 proceeding, the Supreme Court granted the petition, concluding that the town's determination was driven by community pressure, and the Appellate Division affirmed, concluding that Bower had met all the conditions needed for approval of the subdivision application. Bower then brought this 1983 action seeking damages for the delays imposed by the improper denial. The Supreme Court denied the town's motion to dismiss, but the Appellate Division reversed and dismissed the complaint, concluding that Bower had demonstrated no cognizable property interest entitling him to substantive due process protection, had alleged no takings claim, and had failed to make out an equal protection claim by failing to show that the subject property had been treated from similarly situated properties. Bower appealed.

In the second action, Home Depot sought damages from the mayor and city council of the city of Rye, also for damages due to delaying construction for more than 2 years. Although the proposed development was in the neighboring village of Port Chester, that village's approval of the project was conditioned on widening of a street within the city of Rye, and Rye refused to grant the necessary permit. Home Depot brought an article 78 proceeding, and the Supreme Court and the Appellate Division both concluded that Rye's insistence on additional mitigation measures and refusal to approve the permit were arbitrary and capricious. Ultimately, the village of Port Chester issued a new site plan approval that did not require Rye's approval, and construction began. Meanwhile, Home Depot brought this 1983 action, and the Supreme Court granted Home Depot's summary judgment motion on the issue of liability, holding that Home Depot had a clear entitlement to the permit and that Rye's action represented a gross abuse of government authority. The Appellate Division reversed and dismissed the complaint, holding that Home Depot had failed to raise a triable issue of fact as to a due process violation. Home Depot appealed.

The Court of Appeals started with its bottom line: a municipality's arbitrary denial of a permit, even if redressable by an article 78 or other state law proceeding, is not tantamount to a constitutional violation pursuant to 42 USC sec. 1983. Instead, the landowner must also show first that landowner had a “vested” property interest — a legitimate entitlement to continue construction — and second, that the government action was wholly without legal justification. In these two cases, the court found that neither standard was met. The court rejected Bower's argument that victory in an article 78 proceeding establishes a constitutionally protected property interest, and noted that in each case, the actions the landowner sought to compel were discretionary in nature. Moreover, the court concluded that even if the municipal actions in each case were arbitrary, capricious, and without rational basis in an article 78 sense, there was no egregious conduct implicating federal constitutional law. The court went on to reject Home Depot's equal protection challenge, noting that Home Depot had not offered proof of any other entities similar to Home Depot receiving more favorable treatment. And the court also rejected Home Depot's improper motivation argument, noting that even political opposition to a superstore does not constitute the equivalent of an “evil eye and evil hand” for constitutional equal protection purposes.

Zoning Board Has Authority to Grant Variance from Special Permit Requirements

Matter of Real Holding Corp. v. Lehigh

NYLJ 5/7/04, p. 19, col. 3

Court of Appeals

(Opinion by Read, J.)

In landowner's article 78 proceeding challenging a determination by the zoning board of appeals (ZBA) concluding that it lacked authority to grant an area variance, the ZBA appealed from the Appellate Division's affirmance of the Supreme Court's grant of the petition. The Court of Appeals affirmed, concluding that a zoning board of appeals has authority to grant variances from special permit requirements.

The subject parcel had been used as a gasoline filling station until shortly before the current landowner's purchase. After conducting an environmental cleanup of the parcel, the landowner sought to develop a new gasoline station. Under the Town Code, a landowner was required to obtain a “gasoline filling station” special use permit, but the Code required a distance of 1000 feet from residentially zoned lands and 2500 square feet from neighboring gasoline stations. Hence, the landowner needed variances from those two distance standards. On two occasions, the landowner sought variances from the ZBA, and on both occasions, the ZBA determined that it lacked authority to grant the permits. The landowner then brought this article 78 proceeding. The Supreme Court granted the petition, the Appellate Division affirmed, and the ZBA appealed.

In affirming, the Court of Appeals concluded that Town Law section 274-b(3) confers authority on a zoning board of appeals to award an area variance from requirements necessary to obtain a special use permit. That subdivision provides expressly that ” … where a proposed special use permit contains one or more features which do not comply with the zoning regulations, application may be made to the zoning board of appeals for an area variance … ” The Court of Appeals rejected the argument that this subdivision clashes with section 274-b(5), which permits a town board to empower a board to “ waive any requirements for the approval … of special use permits submitted for approval.” The ZBA had argued that the purported conflict should be resolved by reading subdivision (3) to permit area variances only from general zoning requirements, but not from special use permits without the express authorization from the town board. The Court, however, harmonized the two provisions by noting that the waiver provision of subdivision (5) is far broader than the variance provision of subdivision (3); a ZBA may grant an area variance, but not broader waivers, without express authorization from the town board.

COMMENT

Subdivision (3) of Town Law '274-b (like its companion, Village Law ' 7-725-b), which is entitled “approval of special permits,” provides that “where a special use permit contains one or more features which do not comply with the zoning regulations, application may be made to the zoning board of appeals for an area variance pursuant to Town Law ' 267-b.” Ostensibly, this statute provides express authority for a zoning board of appeals (ZBA) to grant variances from special permit requirements. However, subdivision (5) of 274-b provides that the town board may empower an “authorized board” to waive any of the special permit requirements, so long as the waiver is reasonable. The ZBA contended that subdivision (5) implies that only an authorized board can grant variances from special permit requirements, and therefore subdivision (5) conflicts with subdivision (3). The ZBA suggested that the conflict could be resolved by reading subdivision (3)'s grant of authority to apply strictly to general zoning regulations and not special permits. This argument was rejected by the court in Real Holding for three reasons. First, subdivision (3) plainly states that the ZBA's help maybe sought where there is a problem with a special permit requirement. Second, the statute provides that the ZBA may grant a variance from “zoning requirements” without distinguishing between general zoning requirements and special permit requirement. Third, because Town Law ' 274-b (and Village Law ' 7-725-b) is entitled “approval of special use permits,” it would be logical to assume that the variances to which the statute refers are variances from special permits.

Prior to the enactment of Town Law '' 274-b in 1992, it was generally (but not universally) accepted that the ZBA did not have the power to waive or modify special permit requirement by issuing a variance. For example, in Cappadoro Land Development Corp. v. Amelkin, 78 A.D.2d 696, a landowner brought a CPLR article 78 proceeding against the ZBA for failure to grant a special permit. While dismissing the suit, the court found that the ZBA was powerless to waive or alter the special permits requirements under “the guise of an area variance.” (See also Knadle v. Zoning Bd. of Appeals, 121 A.D.2d 447, where on almost identical facts the court reached the same conclusion). However, in Matter of Holy Spirit Assn. for Unification of World Christianity v. Rosenfeld, 91 A.D.2d 190, the court stated that “the zoning board had no authority, absent an application for a variance, to waive or modify the explicit conditions laid down in the town code.” (Id. at 195). Although dictum, the foregoing statement seems to imply that the ZBA would have the power to waive or modify a special permit requirement via a variance.

With the enactment of Town Law ' 274-b(3) and Village Law ' 7-725-b(3) the legislature seemed to provide ZBAs with authority to issue area variances from special permit requirements. Although the Court of Appeals relied on the statutory text, the legislative history points in the same direction. Specifically, the sponsor's memorandum states expressly that “in the event local site plan or special use permit requirements present dimensional difficulties to a particular applicant, an area variance may be applied for to the zoning board of appeals.” (Sponsor's Mem, Bill Jacket, L 1992, ch 694). Nevertheless, in Dost v. Chamberlain-Hellman, 236 A.D.2d 471 (1997), the court held that the ZBA was not empowered to modify or waive special permit requirements. Although the Dost opinion includes only a sparse description of facts, it appears that the landowner sought a variance from a 'maximum square footage for home occupation' requirement, as well as an “hours of operation” requirement. While an area variance would be incapable of circumventing the use requirement, it should have worked to remove the “maximum square footage” requirement. Now that the Court of Appeals has concluded that Town Law ' 274-b(3) (and Village Law ' 7-725-b(3)) empowers ZBA's to grant variances from special permit requirements, it would appear that Dost is effectively overturned.

Area Variance Denial Upheld

Matter of Pecoraro v. Board of Appeals

NYLJ 5/5/04, p. 18, col. 3

Court of Appeals

(Opinion by George Bundy Smith, J.)

In a contract vendee's article 78 proceeding challenging denial of an area variance, the Board of Appeals appealed from the Appellate Division's affirmance of the Supreme Court's grant of the petition. The Court of Appeals reversed and dismissed the proceeding, holding that substantial evidence supported the Board's determination.

The contract vendee entered into a contract to purchase a 4000 square-foot parcel, contingent on issuance of variances to permit construction of the parcel, which was in a zone requiring 6000 square feet and a 55-foot frontage width. Until 1959, the parcel had been part of a 100 x 100 parcel that the landowner then subdivided into one conforming parcel improved with a house, and the subject parcel, which has never been improved. The subject, substandard parcel was conveyed to parties who sought, and were denied, an area variance in 1969. Later, the current owner acquired the parcel at a tax sale by the payment of 2 years' taxes. The current owner then contracted to sell the parcel to the contract vendee, contingent on issuance of a variance. The Board of Appeals denied the requested variance, concluding that the variance was substantial, the neighborhood surrounding the property was overwhelmingly consistent with the zoning requirements, and that the variance would have an adverse effect on the character of the neighborhood. The contract vendee then brought this article 78 proceeding, and the Supreme Court granted the petition, concluding that the Board had denied the application based on generalized community opposition, without giving reasons for its decision. The Supreme Court remanded to the Board for a hearing. Both the Board and the contract vendee appealed, and the Appellate Division modified to direct the Board to issue an area variance. The Board appealed.

In reversing, the Court of Appeals emphasized that local zoning boards have broad discretion in considering applications for area variances. Here, the court observed that the Board was entitled to rely on the extent of the variance and the percentage of conforming lots to support its conclusion that grant of the variance would have an adverse impact on the character of the neighborhood. On these facts, the Supreme Court and the Appellate Division erred in substituting their own judgment for the judgment of the Board. The Court of Appeals also noted that the Board was entitled to consider that grant of the area variance might have encouraged other landowners to divide parcels into substandard lots in order to apply for area variances. Hence, the Board's determination was upheld.

Town Board Proper Defendant in 239-M Denial of Special Use Permit

Matter of Headriver LLC v. Town Board

NYLJ 5/5/04, p. 20, col. 3

Court of Appeals

(memorandum opinion).

In a landowner's article 78 proceeding challenging the Town Board's failure to grant a special use permit, the Town Board appealed from the Appellate Division's affirmance of the Supreme Court's denial of the Town Board's motion to dismiss. The Court of Appeals affirmed, rejecting the Town Board's contention that the County Planning Commission, not the Town Board, was the proper party in the article 78 proceeding.

The landowner sought a special permit from the Town Board to permit construction of a Lowe's Home Center. Because the parcel fronted on a county road, the Town Board was required to refer the application to the County Planning Commission for a recommendation. The Planning Commission recommended that the permit be denied. Pursuant to General Municipal Law section 239-m, the planning commission's negative recommendation triggered a requirement that a supermajority of the Town Board agree to grant of the permit. By a vote of 3-2, the Board voted to grant the permit, but the vote did not meet the statutory supermajority requirement. As a result, the petition was denied, and the landowner brought this article 78 proceeding. The Board moved to dismiss, contending that the landowner should have brought the proceeding against the County Planning Commission, not the Town Board, because a majority of the Town Board had voted to approve the permit. The Supreme Court and the Appellate Division held that the Town Board was not entitled to dismissal, and the Town Board appealed.

In affirming, the Court of Appeals noted that the Planning Commission's Action did not compel disapproval of the permit; the Town Board could have over-ridden the Planning Commission's action, but did not do so. As a result, the Town Board's action was the final agency action reviewable in an article 78 proceeding. Hence, the Town Board's motion to dismiss was properly denied.

Arbitrary Permit Denials Do Not Give Rise to 1983 Actions

Bower Associates v. Town of Pleasant Valley

NYLJ 5/14/04, p. 18, col. 1

Court of Appeals

(Opinion by Kaye, C.J.)

In two actions by landowners seeking damages pursuant to 42 USC sec. 1983, landowners appealed from Appellate Division orders dismissing landowners' complaints. In each case, the Court of Appeals affirmed, holding that the landowner had not established a constitutional violation.

In the first action, Bower sought damages from the town of Pleasant Valley for violating its due process and equal protection rights by refusing to approve its subdivision application. Bower planned a 91-acre subdivision, with 88 acres in the Town of Poughkeepsie and three in Pleasant Valley. Poughkeepsie approved the subdivision, conditioned on Pleasant Valley's approval of the three-acre subdivision, which included an access road. Pleasant Valley, however, denied the application. When Bower brought an article 78 proceeding, the Supreme Court granted the petition, concluding that the town's determination was driven by community pressure, and the Appellate Division affirmed, concluding that Bower had met all the conditions needed for approval of the subdivision application. Bower then brought this 1983 action seeking damages for the delays imposed by the improper denial. The Supreme Court denied the town's motion to dismiss, but the Appellate Division reversed and dismissed the complaint, concluding that Bower had demonstrated no cognizable property interest entitling him to substantive due process protection, had alleged no takings claim, and had failed to make out an equal protection claim by failing to show that the subject property had been treated from similarly situated properties. Bower appealed.

In the second action, Home Depot sought damages from the mayor and city council of the city of Rye, also for damages due to delaying construction for more than 2 years. Although the proposed development was in the neighboring village of Port Chester, that village's approval of the project was conditioned on widening of a street within the city of Rye, and Rye refused to grant the necessary permit. Home Depot brought an article 78 proceeding, and the Supreme Court and the Appellate Division both concluded that Rye's insistence on additional mitigation measures and refusal to approve the permit were arbitrary and capricious. Ultimately, the village of Port Chester issued a new site plan approval that did not require Rye's approval, and construction began. Meanwhile, Home Depot brought this 1983 action, and the Supreme Court granted Home Depot's summary judgment motion on the issue of liability, holding that Home Depot had a clear entitlement to the permit and that Rye's action represented a gross abuse of government authority. The Appellate Division reversed and dismissed the complaint, holding that Home Depot had failed to raise a triable issue of fact as to a due process violation. Home Depot appealed.

The Court of Appeals started with its bottom line: a municipality's arbitrary denial of a permit, even if redressable by an article 78 or other state law proceeding, is not tantamount to a constitutional violation pursuant to 42 USC sec. 1983. Instead, the landowner must also show first that landowner had a “vested” property interest — a legitimate entitlement to continue construction — and second, that the government action was wholly without legal justification. In these two cases, the court found that neither standard was met. The court rejected Bower's argument that victory in an article 78 proceeding establishes a constitutionally protected property interest, and noted that in each case, the actions the landowner sought to compel were discretionary in nature. Moreover, the court concluded that even if the municipal actions in each case were arbitrary, capricious, and without rational basis in an article 78 sense, there was no egregious conduct implicating federal constitutional law. The court went on to reject Home Depot's equal protection challenge, noting that Home Depot had not offered proof of any other entities similar to Home Depot receiving more favorable treatment. And the court also rejected Home Depot's improper motivation argument, noting that even political opposition to a superstore does not constitute the equivalent of an “evil eye and evil hand” for constitutional equal protection purposes.

Zoning Board Has Authority to Grant Variance from Special Permit Requirements

Matter of Real Holding Corp. v. Lehigh

NYLJ 5/7/04, p. 19, col. 3

Court of Appeals

(Opinion by Read, J.)

In landowner's article 78 proceeding challenging a determination by the zoning board of appeals (ZBA) concluding that it lacked authority to grant an area variance, the ZBA appealed from the Appellate Division's affirmance of the Supreme Court's grant of the petition. The Court of Appeals affirmed, concluding that a zoning board of appeals has authority to grant variances from special permit requirements.

The subject parcel had been used as a gasoline filling station until shortly before the current landowner's purchase. After conducting an environmental cleanup of the parcel, the landowner sought to develop a new gasoline station. Under the Town Code, a landowner was required to obtain a “gasoline filling station” special use permit, but the Code required a distance of 1000 feet from residentially zoned lands and 2500 square feet from neighboring gasoline stations. Hence, the landowner needed variances from those two distance standards. On two occasions, the landowner sought variances from the ZBA, and on both occasions, the ZBA determined that it lacked authority to grant the permits. The landowner then brought this article 78 proceeding. The Supreme Court granted the petition, the Appellate Division affirmed, and the ZBA appealed.

In affirming, the Court of Appeals concluded that Town Law section 274-b(3) confers authority on a zoning board of appeals to award an area variance from requirements necessary to obtain a special use permit. That subdivision provides expressly that ” … where a proposed special use permit contains one or more features which do not comply with the zoning regulations, application may be made to the zoning board of appeals for an area variance … ” The Court of Appeals rejected the argument that this subdivision clashes with section 274-b(5), which permits a town board to empower a board to “ waive any requirements for the approval … of special use permits submitted for approval.” The ZBA had argued that the purported conflict should be resolved by reading subdivision (3) to permit area variances only from general zoning requirements, but not from special use permits without the express authorization from the town board. The Court, however, harmonized the two provisions by noting that the waiver provision of subdivision (5) is far broader than the variance provision of subdivision (3); a ZBA may grant an area variance, but not broader waivers, without express authorization from the town board.

COMMENT

Subdivision (3) of Town Law '274-b (like its companion, Village Law ' 7-725-b), which is entitled “approval of special permits,” provides that “where a special use permit contains one or more features which do not comply with the zoning regulations, application may be made to the zoning board of appeals for an area variance pursuant to Town Law ' 267-b.” Ostensibly, this statute provides express authority for a zoning board of appeals (ZBA) to grant variances from special permit requirements. However, subdivision (5) of 274-b provides that the town board may empower an “authorized board” to waive any of the special permit requirements, so long as the waiver is reasonable. The ZBA contended that subdivision (5) implies that only an authorized board can grant variances from special permit requirements, and therefore subdivision (5) conflicts with subdivision (3). The ZBA suggested that the conflict could be resolved by reading subdivision (3)'s grant of authority to apply strictly to general zoning regulations and not special permits. This argument was rejected by the court in Real Holding for three reasons. First, subdivision (3) plainly states that the ZBA's help maybe sought where there is a problem with a special permit requirement. Second, the statute provides that the ZBA may grant a variance from “zoning requirements” without distinguishing between general zoning requirements and special permit requirement. Third, because Town Law ' 274-b (and Village Law ' 7-725-b) is entitled “approval of special use permits,” it would be logical to assume that the variances to which the statute refers are variances from special permits.

Prior to the enactment of Town Law '' 274-b in 1992, it was generally (but not universally) accepted that the ZBA did not have the power to waive or modify special permit requirement by issuing a variance. For example, in Cappadoro Land Development Corp. v. Amelkin, 78 A.D.2d 696, a landowner brought a CPLR article 78 proceeding against the ZBA for failure to grant a special permit. While dismissing the suit, the court found that the ZBA was powerless to waive or alter the special permits requirements under “the guise of an area variance.” (See also Knadle v. Zoning Bd. of Appeals, 121 A.D.2d 447, where on almost identical facts the court reached the same conclusion). However, in Matter of Holy Spirit Assn. for Unification of World Christianity v. Rosenfeld, 91 A.D.2d 190, the court stated that “the zoning board had no authority, absent an application for a variance, to waive or modify the explicit conditions laid down in the town code.” (Id. at 195). Although dictum, the foregoing statement seems to imply that the ZBA would have the power to waive or modify a special permit requirement via a variance.

With the enactment of Town Law ' 274-b(3) and Village Law ' 7-725-b(3) the legislature seemed to provide ZBAs with authority to issue area variances from special permit requirements. Although the Court of Appeals relied on the statutory text, the legislative history points in the same direction. Specifically, the sponsor's memorandum states expressly that “in the event local site plan or special use permit requirements present dimensional difficulties to a particular applicant, an area variance may be applied for to the zoning board of appeals.” (Sponsor's Mem, Bill Jacket, L 1992, ch 694). Nevertheless, in Dost v. Chamberlain-Hellman, 236 A.D.2d 471 (1997), the court held that the ZBA was not empowered to modify or waive special permit requirements. Although the Dost opinion includes only a sparse description of facts, it appears that the landowner sought a variance from a 'maximum square footage for home occupation' requirement, as well as an “hours of operation” requirement. While an area variance would be incapable of circumventing the use requirement, it should have worked to remove the “maximum square footage” requirement. Now that the Court of Appeals has concluded that Town Law ' 274-b(3) (and Village Law ' 7-725-b(3)) empowers ZBA's to grant variances from special permit requirements, it would appear that Dost is effectively overturned.

Area Variance Denial Upheld

Matter of Pecoraro v. Board of Appeals

NYLJ 5/5/04, p. 18, col. 3

Court of Appeals

(Opinion by George Bundy Smith, J.)

In a contract vendee's article 78 proceeding challenging denial of an area variance, the Board of Appeals appealed from the Appellate Division's affirmance of the Supreme Court's grant of the petition. The Court of Appeals reversed and dismissed the proceeding, holding that substantial evidence supported the Board's determination.

The contract vendee entered into a contract to purchase a 4000 square-foot parcel, contingent on issuance of variances to permit construction of the parcel, which was in a zone requiring 6000 square feet and a 55-foot frontage width. Until 1959, the parcel had been part of a 100 x 100 parcel that the landowner then subdivided into one conforming parcel improved with a house, and the subject parcel, which has never been improved. The subject, substandard parcel was conveyed to parties who sought, and were denied, an area variance in 1969. Later, the current owner acquired the parcel at a tax sale by the payment of 2 years' taxes. The current owner then contracted to sell the parcel to the contract vendee, contingent on issuance of a variance. The Board of Appeals denied the requested variance, concluding that the variance was substantial, the neighborhood surrounding the property was overwhelmingly consistent with the zoning requirements, and that the variance would have an adverse effect on the character of the neighborhood. The contract vendee then brought this article 78 proceeding, and the Supreme Court granted the petition, concluding that the Board had denied the application based on generalized community opposition, without giving reasons for its decision. The Supreme Court remanded to the Board for a hearing. Both the Board and the contract vendee appealed, and the Appellate Division modified to direct the Board to issue an area variance. The Board appealed.

In reversing, the Court of Appeals emphasized that local zoning boards have broad discretion in considering applications for area variances. Here, the court observed that the Board was entitled to rely on the extent of the variance and the percentage of conforming lots to support its conclusion that grant of the variance would have an adverse impact on the character of the neighborhood. On these facts, the Supreme Court and the Appellate Division erred in substituting their own judgment for the judgment of the Board. The Court of Appeals also noted that the Board was entitled to consider that grant of the area variance might have encouraged other landowners to divide parcels into substandard lots in order to apply for area variances. Hence, the Board's determination was upheld.

Town Board Proper Defendant in 239-M Denial of Special Use Permit

Matter of Headriver LLC v. Town Board

NYLJ 5/5/04, p. 20, col. 3

Court of Appeals

(memorandum opinion).

In a landowner's article 78 proceeding challenging the Town Board's failure to grant a special use permit, the Town Board appealed from the Appellate Division's affirmance of the Supreme Court's denial of the Town Board's motion to dismiss. The Court of Appeals affirmed, rejecting the Town Board's contention that the County Planning Commission, not the Town Board, was the proper party in the article 78 proceeding.

The landowner sought a special permit from the Town Board to permit construction of a Lowe's Home Center. Because the parcel fronted on a county road, the Town Board was required to refer the application to the County Planning Commission for a recommendation. The Planning Commission recommended that the permit be denied. Pursuant to General Municipal Law section 239-m, the planning commission's negative recommendation triggered a requirement that a supermajority of the Town Board agree to grant of the permit. By a vote of 3-2, the Board voted to grant the permit, but the vote did not meet the statutory supermajority requirement. As a result, the petition was denied, and the landowner brought this article 78 proceeding. The Board moved to dismiss, contending that the landowner should have brought the proceeding against the County Planning Commission, not the Town Board, because a majority of the Town Board had voted to approve the permit. The Supreme Court and the Appellate Division held that the Town Board was not entitled to dismissal, and the Town Board appealed.

In affirming, the Court of Appeals noted that the Planning Commission's Action did not compel disapproval of the permit; the Town Board could have over-ridden the Planning Commission's action, but did not do so. As a result, the Town Board's action was the final agency action reviewable in an article 78 proceeding. Hence, the Town Board's motion to dismiss was properly denied.