Posted by: Patricia Salkin | July 12, 2015

NY Appellate Court Affirms Holding that Site Plan Approval Began Four Month Statute of Limitations to Bring Article 78 Action

In 2011, petitioner applied to the Planning Board of respondent City of Plattsburgh for site plan approval to develop an apartment complex. The plans were approved with a stipulation requiring the use of exterior brick veneer in a color that matched neighboring buildings. In 2012, after revising the construction plans, petitioner filed a new application for site plan approval and submitted architectural drawings indicating that the exterior would be “½ Brick Veneer Siding” and that the veneer material would be “Boral Stone Products Cultured Stone Brick Veneer Antique Red.’ ” In April 2012, the Planning Board issued a letter that conditionally approved the site plan and specifically referenced the architectural drawings as part of the approved plan. Despite this, Petitioner used an alternate veneer material, and consequently in October 2012, the City informed petitioner that a certificate of occupancy would not be issued unless the Boral Stone was installed or petitioner posted financial security. Petitioner posted the security, signed a completion agreement and was issued a certificate of occupancy. In January 2013, petitioner commenced this CPLR article 78 proceeding challenging respondents’ authority to require the specified veneer and seeking, among other things, an order directing the issuance of an unconditional certificate of occupancy. The trial dismissed the petition as time-barred under CPLR 217 (1), and the petitioner appealed.

The court below found the petition untimely because it was not filed within four months after the Planning Board’s April 2012 approval of the site plan. Petitioner argued that the court erred because the proceeding was timely filed within four months after the City refused to issue an unconditional certificate of occupancy, and it was this determination at issue. The court disagreed, adhering to the principal that an administrative determination is considered final and binding when an agency has reached a definitive position on the issue that inflicts actual, concrete injury and administrative remedies have been exhausted. Here, Petitioner was first aggrieved by this requirement when it was included in the Planning Board’s site plan approval in April 2012, and not when petitioner’s refusal to comply subsequently led to the withholding of an unconditional certificate of occupancy. Furthermore, while the City’s September 2012 letter indicated that no determination had yet been made as to whether to withhold the certificate of occupancy, this did not constitute a de novo review by the Planning Board, and therefore did not result in a lack of finality.

Finally, the court found the petitioner’s action to compel the city to issue a certificate of occupancy also failed. The court held that a determination of whether petitioner complied with the approved site plans involved discretionary considerations beyond the reach of a proceeding for relief in the nature of mandamus. Accordingly, the court affirmed the dismissal of petitioner’s claims.

EZ Properties, LLC v City of Plattsburgh, 128 A.D. 3d 1212 (NYAD 3 Dept. 5/14/2015)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2015/519924.pdf


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