that precluded summary judgment we have to townhouse subdivisions both approved by the same planning board both asked they get d o h a required to get d u h approval for their water application they both submitted the same application which an application for a public water system is at fourteen seventeen fourteen seventy one back to back their nearly identical we filled out there's been this  its distribution were located in an existing water district the one for mr long away the town supervisor temperamentally a he signed his own application he basically says deal wage yes we're going to follow through we're going to operate the water system that is approved by deo wages in that's consistent with what the planning board required for our application he doesn't sign it we've asked him repeatedly to is the application is putting the cart before the horse and we know that's true because after two years after getting the judge maryland state supreme court judge to basically say there was no justification i couldn't have written a better honor because all of the concerns that were raise like cyc plan review were issues that the planning board is delegated authority over on their new york state town law towns don't have to have planning boards but  power does you delegate that authority so that the plant planning board can this october two thousand and ten decision approval spoke it's that we're prove of this townhouse subdivision and you need to get get into the game and we didn't get the ticket to the department of health correct and still having trouble understanding why it would be irrational for that to say we don't want to commit ourselves to making an with cation in our name into the health department for us to start up a water system until we know that this is that this is really going to go forward and we don't know that until these other requirements are that if you're looking to extend a water line with an existing water district it has to be a town and so you can't do a transportation corporation you can't do a private company you can't do those things at a town  you go off and do and in basically causes further and further delay the judge said no town supervisor you've got to sign the application because embedded in that application is do you wait review in approval do you wait has exclusive jurisdiction over the standards by which water directly or if we're down in the weeds of state law and the state and you went to the state court in the state court and said no i've sort d this all out here is what the answer is what what makes it plausible that this was not a good faith they thought that it was sensible to wait and see whether these other requirements are satisfied which evidently was not a problem with the comparative subdivision right and again the comparative subdivision actually is owned and operated by the town supervisor a competitor as he's trying to encourage us to buy his subdivision before we even apply for our so that backdrop i think is very important your honor only of all portion of the comparing are involved the townhouses and the general  submission for planning board approval was made after the water application for liberty through but i'm sorry i'm sorry i'm yes but the two applications for water both dealt with the townhouse subdivision part of the long way subdivision so he was looking for that approval with that application which is on page fourteen seventy one of the record but but in  december ninth letter town you're obligated as the applicant to file the tipline action and this kind of gets i'm going to slide over here because meanwhile we're still fighting to get the application signed once you get the application sign it all fell into place deal which that is crossing t's and dotting i's for to seek a review because the seek review has already been done by the planning board after come on it's putting water lines under roads that already been built you know so are going to be built means already been approved so it's there were this idea that somehow there are concerns about site plant so they get the town engineer to write letters five months afterwards to the planning board say hey planning board you might want to reconsider your approval from five months ago or or planning board maybe your maybe your view is premature because no deal wage has a review that's no one no no because the planning board has already discharges responsibility you might not like what the science what the site plan looks like you may not like what the planning board did but the opportunity to challenge it has long since gone it's set in stone as set in stone because we spend money by the land we get the set aside we hire an engineer we have a vested protected property right in that approval and all we are met with was delay tactic after delay tactic it's a ministerial act in a reason why it's a ministerial act to sign the application there's no discretion the best evidence is that the town supervisor signed it for his own application if he thought there was a discretionary reason or a basis for saying no then he was sent to the town attorney or signs it on his own i mean it's just i thought i was in lala land sometimes because i'm getting a state court judge to basically direct the town or turning the county right to do things that are required by law that they were refusing to do because they're saying there's these other problems out there you first have to resolve and judge marilyn said no all those other things fall into place later but we can't even get this review started until you  completely ignores that there was at the same time that the approval process was going on through the town a parallel investigation and review by  her two thousand and ten we admit that we gave them final approval but on december ninth two thousand and ten the town gets a letter from d o eight saying this is premature you should've done this you've got to get your own engineer your  wrong and you need to change it and you need to be the lead agent to change it so faced with that they're dealing with trying to comply with the o h requirements and still go forward with this project in the midst of that the plaintive is dealing with deal wage and he won't accept that as an answer and he does not want the town to be the lead agent because he's afraid of it goes back to the town they're not going they're going to change it so th is faced with these competing interests here so like you to your honor what they did was rational and what they did is that the deal wage was not going to change their opinion that they needed a seeker one type one and they got that they were not to change your opinion that the town was going to be the lead agent it wasn't until after the article seventy eight that they changed their opinion only with regard to who is going to be the lead agent and when that was done the deal which can lead to agent they got the type one and it was right after that immediately after that the town signed the deal which letter approving accepting that so that's why they and i agree with your honor to that that the d o h a letters of liberty and of emerald was just one of the compared when the lower court looked at the selective enforcement but in fact what they did they said it so even roughly equivalent it's not similar situated and they stated four or five reasons why it wasn't different zoning different size different requirements that in and of itself a reason a person could look at and say it's different and it's not selective enforcement maybe you could help us understand me understand the record a little a little better the town or for several explanations for why the plaint that it's not mean a sterile it is discretionary and in addition to that the temp of the lower court also said that the town put forth a good faith basis as to why they weren't going to sign it right away and what was that good for the good faith basis was that they were not satisfied with the location of the utility that was going under the concrete where if they accepted the ownership and there was a problem with it the future they'd have to cut into the concrete and i think it through the pavement to repair this and they didn't want to appear they didn't want to not incur that cost so that was an ongoing issue that they had to deal with which they made clear to t which the lower court has stated it was not similar and very normal respects to that of them and did he have any involvement in the plaintiffs want to supply a plan review process and he didn't he did initially but after the article seventy eight he was instructed not to be involved anymore and he complied with the court order so the answer is he was initially but then after the article seventy eight he was not and the state supreme court did hold that there was no justification for his refusal to sign the arrange for but said i can argue can't argue with that  and that certainly happens i carry with him your honor that that was certainly not a rational decision that there was a rational basis why considering all the factors because i understand at the same time the appellant sued the opposing side were able to show that there was deliberate of a competitor that would that would rise to the level of militias or band faith and tend it would be a factor too me too but it's interesting your honor if you read the record i'm sure you have is that dio waits that i don't care what the town does do they can do anything they want until you get a type one review i'm not going to approve this and they were adamant about that and the so the town could have submitted anything they wanted to but until they got the type one review they were not going to provide that is clear in the record so even if they submitted it a year before it was not going to be approved until they got the type one and initially it was because it was going to the town was really to agent but then deal which took over in the town would have if the town had submitted the application the town as things stood at that moment the town would have had to do the type one review if that's the way it was initially before the arkell seventy eight that was the idea which is a position that they had to do it and the pla appellant in this case did not want that to happen he was argued to deal it says i don't want the town to be the lead agent because i know that they're not going to approve all these things and i don't want that to happen so and for him to say that at the end of the day that delay was solely based on the town not following this deal wage is without basis the delay was because he the d o h a is insistence insistence on the type one seeker which is contrary to the planning board's type two yes your honor yes one question though yesterday and i'm sympathetic to your sense of you were in la land because i know one thing i have trouble understanding is how can there be a requirement we are is the requirement that as a matter of law the town is a blind eye to sign the application and that is a totally ministerial act and yet the department of health can say even though you're obligated as a matter of law to sign this and you have no discretion not to sign it one of going to move forward until you sign it that seems fairly bizarre well i think that and suggests to me that there must be some discretion otherwise why would the department of health have to wait until this ministerial act is completed all the legal requirements for going forward are already satisfied well first off i mean the genesis of the requirement to get d u h review came from the planning board in article eight of the new york state public health walk details what that means in a basically says that when throughout the state of new york including here in new york city in piri the new york state department of health has jurisdiction over all water installations quickly having said that they delegated they delegate in all ways to albany county and they probably delegated to the new york city down here in the north country they don't they take it on themselves so they come up with these this set of rules and regulations that you have to file and they come up with this realty subdivision anything over five laci got to get you know water approved by d d a wage so it's it's a clear requirement under the new york state public health law that all the idea that the planning board has already said this subdivision is going to be is approved and new york courts like in the i think is that versus terra charlton basically says that because it's located within an existing town water district all i've been trying to get from the very beginning on this is case there's an understanding that it's not the review by dio wage that would die but by what by the way i think maybe ministerial but i can understand it might be some factors have to consider it's just the act of signing is all you have to all they have to do because the planning board has already record they've already spoken for the town saying this of the virgin's going to be buil of issues that my learned counsel try to raise the comparative has size same district and yeah that might be relevant if i had been denied a planning board subdivision approval i wouldn't be here i would say that's a discretionary decision to back go home we're past that so signs location density means nothing we're residential we're filing the same governed by the same ten ten state standards that new york and other states throughout the northeast have agreed to so that you can be a developer and here in new york they go to connecticut your base can be following the same rules so it's not rocket science in terms of the process although you have to look at the statute look at how the regs interplay you know what disputed issues the fact you claim exist in the record the court looked at the issues of whether this was a national compare and whether they were similar and she found based on the evidence that they weren't right and and it right i believe that was wrong because and what facts do you think are because i don't think that the the comparative facts that the judge relied upon below dealt more with whether or not the subdivision itself should have been approved those facts are not material to whether or not the application with the a wage should have been signed the town of a million subdivision law uses discretionary language stating that the town board may accept subdivision facilities by resolution that language suggests not the ministerial mandatory act but rather the exercise of some discretion and in this court's prior decision in sullivan versus town of salem the court did distinguish the mandatory shower language from the discretionary ma language so the record here did show that the town does conduct reviews and whether there is going to be potential dedication to in infrastructure roads you can have a road that's private so the town is not required to take a road they can decide where they want to take a road water is different when it's with and in the existing water district the law prohibits private water companies don't want people out there so it's they may say may over there to cover all this other infrastructure will want to comms to what is required by deal wage it's mandatory why can't they why doesn't that give them the choke point where they can come back and say well we just don't want it we're not saying you can go ahead maybe you've got other legal obstacles that say you can't do it but we don't want this to take responsibility for this infrastructure so sorry right doesn't that give them some authority maybe a back door authority maybe not what the town planning board contemplated to take an  action why are they are obligated i mean i understand what you're saying you can't operate the water facility but why does that obligate the town to take on a water facility if they have some reason to think they don't want to because again the planning board has given exclusive jurisdiction over all matters including water they determine whether or not what of a prick marmots to get a subdivision and among them water and sewer and highway water and sewer are required but we planning board are not the body that has to grant that authority you have to go to apartment of health they didn't say call check with the town the go to the department of health and get your approvals it was very easy to get the waste water sewer stuff done by by d e c do you each you know one off the rails really because the u d c didn't require guy but he absolutely is required as a matter of state a lot to give that signature but we still want you to get that signature what is the point of that it's actually in the in the note underneath us of what it means when you sign you basically are obligating to maintain that system after it's been designed and built so basically telling a town hey the planning board approved a subdivision deal which is approved in the water but you may want to we just your rates you know so that you can get you know pay for just you know the maintenance and whatnot it's it's really get to me it's more akin to a notice than anything else to the to the chief executive officer that hey you know there's activity going on place in your town we're putting things on the ground you might want to be aware of it or review it please sign here to make sure you understand your obligations to maintain it so following that line of reasoning in response to judge lynch is question the the planning board town government that has any will they have again the minister role here they may have to sign off on the highway department for curb cutters and they have to raise taxes or adjust rates and so on is what you just said and they are and they're going to be obligated to do that of all that's not actually true because way it works is they people with in the new district a new extension of a pay you know for the for the first level of it and then it's just simply just it's a rate to recover the maintenance cost it it's the new people who are