Butler v. Town of Throop

—CPLR article 78 proceeding transferred to this Court by an order of Supreme Court, Cayuga County (Fandrich, J.), entered October 8, 2002 seeking review of a decision of respondent Planning Board of the Town of Throop. It is hereby ordered that the order so appealed from be and the same hereby is unanimously vacated without costs and the matter is remitted to Supreme Court, Cayuga County, for further proceedings in accordance with the following memorandum: Supreme Court transferred the proceeding herein to this Court pursuant to CPLR 7804 (g) on the ground that the petition raises an issue of substantial evidence. That was error. The determination was not “made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law” (7803 [4]), and thus no substantial evidence was raised. We also note that, because petitioner challenges a decision of respondent Planning Board of the Town of Throop, the court was required to dispose of the matter on the merits and determine all issues raised in the petition (see Town Law § 274-a [11]; Matter of Irondequoit Assembly of God v Planning Bd. of Town of Irondequoit, 244 AD2d 1002, 1003 [1997]). We therefore vacate the order transferring the proceeding to this Court and remit the matter to Supreme Court, Cayuga County, for disposition on the merits. Present — Pigott, Jr., P.J., Pine, Hurlbutt, Lawton and Hayes, JJ.