Posted by: Patricia Salkin | July 3, 2011

NY Appellate Court Upholds Planning Board’s Conditional Subdivision Approval Where Applicant Fails to Challenge Discretionary Action Within Statute of Limitations

The Planning Board approved petitioners’ application for a four-lot residential development, but held final approval subject to certain specific conditions.  In particular, the plan had individual sewer pumps for each lot, but the Town Engineer and Poughkeepsie’s Sewer Department stated that individual pumps were unacceptable.  One of the conditions was that one sewer pump must serve all four lots.  Petitioners received two 90-day extensions and in February 2009, they again requested final subdivision approval.  However, in their letter of request, petitioners noted that the subdivision was designed with four individual pumps, to which the Sewer Department reiterated their earlier objection.  The day before petitioners’ second 90-day extension expired, they filed this action to compel the Sewer Department to approve their four-pump system and to compel the Planning Board to sign the approval application. 

The appellate court agreed with the lower court’s determination that mandamus relief was inappropriate in this case, as it involved the performance of a discretionary act by a municipal agency.  The Court affirmed the lower court’s dismissal because the proceeding was commenced more than 30 days after the Planning Board filed their resolution with the conditions.  Therefore, pursuant to Town Law §282, the proceeding was time-barred by the 30-day statute of limitations on Planning Board determinations and thus correctly dismissed. 

Rose Woods, LLC v. Weisman, 2011 WL 2279520 (N.Y. App. Div. 06/07/2011) 

The opinion can be accessed at:

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