NY Appellate Court Holds that 30-Day Statute of Limitations Restriction Applies to Waterfront Consistency Review which was also Part of the Site Plan Review

This post was authored by Tyler Doan, Esq.

Respondent submitted a major site plan application to the City of Buffalo Planning Board seeking approval of the construction of four apartment buildings. On November 8, 2021, the Planning Board issued a negative declaration pursuant to the State Environmental Quality Review Act and a waterfront consistency review finding that the project was consistent with the City of Buffalo Local Waterfront Revitalization Program. On January 10, 2022, the Planning Board voted to approve the site plan with conditions. On March 6, 2022 Petitioners commenced an Article 78 proceeding seeking to annul the waterfront consistency review finding and the conditional site plan approval. Respondents moved to dismiss the petition on the ground that all causes of action were time barred. The Supreme Court denied the motions and Respondents appealed.

The Court first notes that although there is no appeal as of right from an intermediate order in an Article 78 proceeding, the Court treats the notices of appeal as applications for leave to appeal the order and granted the applications.

The Court, in holding that the causes of action were time barred, rejected the Petitioners’ claim that the challenge to the November 8 waterfront consistency review findings is subject to the longer four-month statute of limitations in CPLR 217 (1) because the waterfront consistency review findings were part of the overall application for site plan approve which culminated in the Planning Board’s approval of the site plan on January 10, thus applying the 30-day statute of limitations to determinations of the Planning Board and time-barring the proceeding.

Metzger v City of Buffalo, 214 A.D. 3d 1434 (4 Dept. 3/24/2023)