Scaglione v. Zoning Board of Appeals of the Town of New Hartford , 623 N.Y.S.2d 35 ( 1995 )

—Judgment unanimously reversed on the law without costs and petition granted. Memorandum: Supreme Court erred in dismissing the petition to annul a determination of respondent Zoning Board of Appeals of the Town of New Hartford (Zoning Board) that granted respondent Board of Water Supply of the City of Utica (Water Board) a special use permit to construct a three million gallon water storage tank in the Middle Grove subdivision in the Town of New Hartford. The Zoning Ordinance of the Town of New Hartford provides that a public utility use within an R-l residential zone must have a special use permit and a site plan review. Before a special use permit may be granted, "[t]he Zoning Officer shall refer such an application first to the planning board for its review and action. No action shall be taken by the zoning board of appeals * * * until a determination has been rendered by the planning board” (Town of New Hartford Zoning Ordinance, art V, § 8.4). No referral to the Planning Board was made by the Zoning Board. Because the Zoning Board did not follow the mandated procedure, the grant of the special use permit must be vacated (see, Webster Assocs. v Town of Webster, 59 NY2d 220, 229-230).

There is no merit to the contention of petitioners that the Water Board lacked authority to enter into a contractual agreement with the Town of New Hartford or to request a special use permit from the Zoning Board (see, City of Utica Charter § 6.022 [c]; § 6.023 [a]). (Appeal from Judgment of Supreme Court, Oneida County, Shaheen, J.—Article 78.) Present—Green, J. P., Pine, Wesley, Davis and Boehm, JJ.