Opinion
May 6, 1991
Appeal from the Supreme Court, Suffolk County (Rohl, J.).
Ordered that the judgment is affirmed, with costs.
Commencing in June 1987 the petitioner and the respondent Planning Board of the Town of Southold engaged in negotiations concerning the petitioner's application for site plan approval to construct retail office space in Southold, New York. The negotiations continued beyond February 1, 1989, the effective date of a new Town zoning code, and when the Planning Board notified the petitioner by letter dated March 22, 1989, that its pending application would be reviewed under the new code, the petitioner brought this proceeding. The Supreme Court dismissed the petition on the ground that the March 22, 1989, letter was not a final determination and that, therefore, the matter was not ripe for adjudication. We agree.
The Planning Board's letter states explicitly that the petitioner's application was "pending" and that it would continue the review process "[u]pon receipt of revised site plans". Thus, there has been no showing by the petitioner that the Planning Board's action had a "`direct and immediate'" effect on it (Church of St. Paul St. Andrew v Barwick, 67 N.Y.2d 510, 519-520, cert denied 479 U.S. 985, quoting Abbott Labs. v Gardner, 387 U.S. 136, 152), and the March 22, 1989, letter cannot be considered a final administrative action. Further, there is no indication in the record that the petitioner sought a variance from the new zoning code before initiating this proceeding (see, Williamson Planning Commn. v Hamilton Bank, 473 U.S. 172, 186). Therefore, the Supreme Court properly dismissed the proceeding, because the controversy is not ripe for adjudication. Harwood, J.P., Balletta, Rosenblatt and O'Brien, JJ., concur.