Posted by: Patricia Salkin | November 15, 2008

Challenge to Building Permit and Renewals Time-Barred and Subject to Certiorari Rather Than Mandamus Action

By an action initiated in June 2007, an adjacent property owner sought to compel the Town to rescind a building permit and subsequent renewals it had issued for the construction of a residence on the adjacent parcel for alleged failure to comply with Town, County and State laws.  The permit was initially issued in 2001 and the most recent renewal occurred in April 2007.  


The New York appellate court dismissed the action as time-barred, noting that a CPLR article 78 must be commenced within four months of a final decision.  Although the petitioner argued that her action was in the nature of mandamus, to compel an action, the Court said that in reality, the petitioner is seeking review of the issuance and renewal of the permit.  Determining that this would be an end run around the statute of limitations, the Court commented that, “Allowing this proceeding to be couched in terms of mandamus would allow any party to begin anew the running of the statute of limitations in a certiorari matter by demanding recision of the original determination the party wishes to challenge.”  The Court further noted that a challenge to the issuance of a building permit accrues when the permit is issued or renewed, and the mere existence of the permit does not constitute a continuing wrong.


The Court dismissed as time-barred the challenge to all but the April 2007 permit renewal.  However, the Court then noted that the proper method to challenge the permit renewal is to first seek administrative relief through the zoning board of appeals pursuant to Town Law 267-a[4].  Since the petitioner failed to pursue this administrative remedy, she is foreclosed from raising it in court. 

Letourneau v. Town of Berne, 2008 WL 4812527 (N.Y.A.D. 3 Dept. 11/6/2008).


The opinion may be accessed at:

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