Glacial Aggregates, LLC, previously commenced an action against the Town of Yorkshire seeking money damages and a declaratory judgment that Glacial had attained vested rights to operate a sand and gravel mine in the town. On March 22, 2005, Glacial, claiming it had a legal duty to mitigate its damages, submitted an application to the town for a special use permit that would allow Glacial to operate the mine. By letter dated March 31, 2005, Marvin Zielonka, the code enforcement officer of the town, informed Glacial that the planning board could not entertain Glacial's application. [*2]

Glacial then commenced the instant Article 78 proceeding against respondent Zielonka seeking to annul Zielonka's determination that, in effect, denied Glacial's application for a special use permit. Glacial also seeks to compel Zielonka to forward Glacial's application to the planning board. Zielonka has moved to dismiss on the grounds that Glacial has failed to exhaust its administrative remedies.

Glacial contends that § 8.31 of the Town Zoning Law requires Zielonka to forward Glacial's application to the planning board. That section reads, "An applicant for a Special Use Permit shall submit a completed application to the Code Enforcement Officer, who shall forward it to the Planning Board." Section 2.1 (4) of the Town Zoning Law provides that "[t]he word 'shall' is mandatory."

Notwithstanding this straight forward language, respondent contends that he is not obligated to forward the application to the Planning Board, claiming he need only "review the application to determine whether the applicant is entitled to apply for the relief sought" and decide if the applicant has met all of the filing requirements, citing sections 13.1, 13.2.1 and 13.2.5 of the Town Zoning Law. Section 13.1.2 (b) requires the code enforcement officer, "upon request by the subject board," to "review applications and make recommendation to the Planning Board and Zoning Board of Appeals." Section 13.2.5 provides that if the code enforcement officer does not believe that a proposed development meets the requirements of the Town Zoning Law, he "shall refuse to issue a Zoning Permit." The Code Enforcement Officer contends that petitioner was not entitled to conduct a mining operation in the town and therefore Zielonka had no obligation to forward petitioner's application to the Planning Board.

As indicated, the plain language of the Zoning Law provides that the Code Enforcement Officer shall forward a use application to the Planning Board. To the extent that the ordinances conflict, they must be construed against the town (see Francis Development & Management Co. Inc. v. Town of Clarence, 306 AD2d 880, 761 NYS2d 760 [4th Dept. 2003]; AHEPA 91, Inc. v. Town of Lancaster, 237 AD2d 978, 654 NYS2d 884 [4th Dept. 1997]). Thus, construing this language against the town, as the court is required to do, Glacial should have been able to rely on the town's own ordinances and its application must be forwarded to the Planning Board.

Accordingly, respondent's motion to dismiss the petition is denied and, pursuant to CPLR 7804 (f), respondent will have five days from receipt of the order to serve an answer to the petition. Counsel for plaintiff should submit an order on notice.

The court expresses absolutely no opinion on the merits of the application and this decision resolves only the procedural mechanism to insure that the town adheres to its own ordinance and the application is forwarded to the Planning Board.

Dated: Little Valley, New York

May 9, 2005

_________________________

HON. LARRY M. HIMELEIN