Development

Statutory Time Limit Does Not Apply to Site Plan Approval Made Without Submission to County Planning Commission

Matter of Eastport Alliance v. Lofaro

NYLJ 1/3/05, p. 27, col. 6

AppDiv, Second Dept

(memorandum opinion)

In an article 78 proceeding challenging the town planning board's approval of a site plan, neighbors appealed from the Supreme Court dismissal of the petition for failure to jointhe landowner as an indispensable party, and from the Supreme Court's denial of neighbors' motion to join the landowner as a party. The Appellate Division modified to reinstate the neighbors' challenge to the planning board's jurisdiction, and to join the landowner as a party.

The Southampton Town Planning Board, by a 4-3 vote, approved the landowner's site plan for a proposed catering hall on waterfront property, and also approved the landowner's application for a wetland permit. Neighbors, individuals and a civic association brought this article 78 proceeding, contending that the planning board had not complied with the state environmental conservation law, and also that the board had improperly failed to refer the landowner's applications to the Suffolk County Planning Commission. The neighbors also moved, during the pendency of the proceeding, to join the landowner as a party-respondent. The Supreme Court concluded that the landowner was not timely joined within the limitations period, and then dismissed the proceeding because the landowner was an indispensable party. The neighbors appealed.

In modifying, the Appellate Division first held that the Suffolk County Administrative Code required the planning board to refer applications like those submitted by the landowner to the Suffolk County Planning Commission for review and a recommendation. The court further held that without the referral, the town planning board lacked jurisdiction to approve the application. The court then concluded that when a local land use agency acts without jurisdiction in approving or denying a site plan, the challenged action is not subject to the 30-day limitations period ordinary applicable to a the challenge. Hence, the neighbors' motion to join the landowner as a party was timely. Because the town planning board had acted without jurisdiction, its action was void, and the court remitted for a new determination after a recommendation by the county planning commission.

Statutory Time Limit Does Not Apply to Site Plan Approval Made Without Submission to County Planning Commission

Matter of Eastport Alliance v. Lofaro

NYLJ 1/3/05, p. 27, col. 6

AppDiv, Second Dept

(memorandum opinion)

In an article 78 proceeding challenging the town planning board's approval of a site plan, neighbors appealed from the Supreme Court dismissal of the petition for failure to jointhe landowner as an indispensable party, and from the Supreme Court's denial of neighbors' motion to join the landowner as a party. The Appellate Division modified to reinstate the neighbors' challenge to the planning board's jurisdiction, and to join the landowner as a party.

The Southampton Town Planning Board, by a 4-3 vote, approved the landowner's site plan for a proposed catering hall on waterfront property, and also approved the landowner's application for a wetland permit. Neighbors, individuals and a civic association brought this article 78 proceeding, contending that the planning board had not complied with the state environmental conservation law, and also that the board had improperly failed to refer the landowner's applications to the Suffolk County Planning Commission. The neighbors also moved, during the pendency of the proceeding, to join the landowner as a party-respondent. The Supreme Court concluded that the landowner was not timely joined within the limitations period, and then dismissed the proceeding because the landowner was an indispensable party. The neighbors appealed.

In modifying, the Appellate Division first held that the Suffolk County Administrative Code required the planning board to refer applications like those submitted by the landowner to the Suffolk County Planning Commission for review and a recommendation. The court further held that without the referral, the town planning board lacked jurisdiction to approve the application. The court then concluded that when a local land use agency acts without jurisdiction in approving or denying a site plan, the challenged action is not subject to the 30-day limitations period ordinary applicable to a the challenge. Hence, the neighbors' motion to join the landowner as a party was timely. Because the town planning board had acted without jurisdiction, its action was void, and the court remitted for a new determination after a recommendation by the county planning commission.