Opinion
May 27, 1988
Appeal from the Supreme Court, Ontario County, Henry, J.
Present — Dillon, P.J., Green, Pine, Balio and Davis, JJ.
Judgment unanimously reversed on the law with costs, petition granted, and matter remitted to respondent Zoning Board of Appeals for further proceedings, all in accordance with the following memorandum: Petitioners appeal from a judgment dismissing their CPLR article 78 petition seeking to annul the determination of respondent Zoning Board of Appeals (the Board) approving a special use permit for the development of a 120-unit condominium complex. In the alternative, petitioners sought remittitur to the Board for further proceedings. The court erred in denying the latter request for relief because the Board failed to comply with the State Environmental Quality Review Act (SEQRA) (see, Matter of Badura v Guelli, 94 A.D.2d 972, 973). The Board's failure to comply with SEQRA also resulted in a failure to submit a "full statement" of the special permit application to the County Planning Board (General Municipal Law § 239-m). Thus, upon remittitur, the Board must resubmit the application to the County Planning Board once it has complied with SEQRA. With respect to petitioners' contention that subdivision approval was required, the record contains no showing that the Zoning Board of Appeals has any role in applying the city's subdivision regulations. Finally, we note that since we are remitting the matter the issue of the residence of Board member Wolczyk at the time of the vote is moot.