The Town of South Bristol Planning Board (Planning Board) issued a negative declaration of environmental significance and site plan approval for a 24–unit townhouse construction project. As a result of the developer’s conversion of the project to one involving condominiums, the Planning Board issued a second negative declaration and site plan approval in 2009. On October 19, 2012, the Planning Board approved a re-subdivision of the site from 24 individual lots to 2 lots. Plaintiff commenced this action on July 17, 2013 seeking a declaration that, the 2009 site plan approval had automatically terminated because “significant work” had not been timely commenced on the project. Defendants moved pursuant to, CPLR 3211(a)(5) to dismiss the complaint on the ground that all causes of action were time-barred. Plaintiff cross-moved pursuant to CPLR article 63 for a preliminary injunction halting any construction work or development of the site. Supreme Court granted defendants’ motions and denied plaintiff’s cross motion.
The court found that although a six-year limitations period governs declaratory judgment actions, if such claim could have been brought in another form, then the shorter limitations period applies. Here, Town Law § 274–a (11) provided for a 30–day limitations period for challenging “a decision of the planning board or any officer, department, board or bureau of the town” under CPLR article 78. Therefore, plaintiff’s challenge to the Town Code Enforcement Officer’s determination of the meaning of “significant work” under Code § 170–94(J) could have been brought in a CPLR article 78 proceeding under Town Law § 274–a (11) and was time-barred.
Plaintiff further contented that the Town Code Enforcement Officer’s determination was not an administrative action and thus there was “nothing to appeal.” However, Code § 170–92(B) specifically provided for an appeal to the Zoning Board of Appeals where it is alleged that there is an error in any order or decision made by an administrative officer or body in the enforcement of the Code. Accordingly, the court found that the plaintiff also failed to pursue the available administrative appeal. The order of the Supreme Court was therefore affirmed.
Bristol Homeowners Environmental Preservation Associates, LLC v Town of South Bristol, 2014 WL 5901427 (NYAD 4 Dept. 11/14/2014)
The opinion can be accessed at: https://www.nycourts.gov/courts/ad4/Clerk/Decisions/2014/11-14-14/PDF/0921.pdf