Posted by: Patricia Salkin | December 3, 2018

NY Appellate Court Holds Action Challenging Mitigation Fees was Barred by Statute of Limitations

This post was authored by Matthew Loeser, Esq,


In 2006, the Town Board adopted the findings of a generic environmental impact statement (“GEIS”) that was commissioned in accordance with the State Environmental Quality Review Act (“SEQRA”). The GEIS provided for the assessment of mitigation fees to developers, and that any future action associated with development in the Town undertaken in conformance with the baseline conditions established in the GEIS or the Town Board’s Finding Statement would not be subject to further SEQRA review. The Zoning Board of Appeals found that plaintiff’s plans to develop a restaurant and a hotel within a previously-established business park were consistent with the GEIS and Finding Statement. As such the Zoning Board held that no further SEQRA review was required. Plaintiff was then assessed mitigation fees for the projects totaling roughly $268,406. In this case, plaintiff appealed the decision of the Supreme Court of New York to dismiss its claim challenging those mitigation fees on statute of limitations grounds as well as on the merits.


On appeal, Plaintiff contented that the mitigation fees imposed by defendant violated SEQRA and constituted an illegal tax with no demonstrated nexus between the identified impacts from the projects and the mitigation fees imposed. The court found that as the GEIS was an administrative, rather than legislative, act of the Town Board, this challenge should have been brought as a CPLR article 78 proceeding. As such, plaintiff’s claims were subject to the four-month statute of limitations of CPLR article 78 actions.  Accordingly, the court held the Supreme Court of New York properly found these claims were time-barred.


Lakeview Outlets, Inc. v Town of Malta, 2018 WL 6204587 (NYAD 3 Dept. 11/29/2018)

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