June 18, 2015

In Bristol Homeowners Environmental Preservation Associates, LLC v Town of South Bristol, 2014 WL 5901427 (4th Dept. 2014), the Court found that although a 6 year limitations period generally applies to a declaratory judgment action, this particular claim could have been brought as a CPLR Article 78 proceeding which has a much shorter 30 day limitations period, and it is well settled that the shorter limitations period applies.

Between 2005 and 2012, the Town of South Bristol Planning Board issued several approvals for a residential townhouse/condominium construction project. The Planning Board issued an initial negative declaration for the project, a second negative declaration when the project changed from townhomes to condominiums, a site plan approval, and ultimately a re-subdivision from 24 to 2 lots on October 19, 2012.

The Town of South Bristol’s Code included a provision that a site plan approval will automatically terminate 2 years after it is granted unless significant work has commenced on the project. The Planning Board Chairman read a decision of the Code Enforcement Officer into the record stating that “significant work” on a condominium project was not limited to actual physical construction on the project site, but could include substantial financial investment and effort spent in gaining state approval of the condominium project. The Town Code Enforcement Officer further determined that “significant work has commenced on the project.”

Plaintiff did not challenge that determination by commencing a proceeding under CPLR Article 78. Rather, Plaintiff waited almost 9 months and on July 17, 2013 filed a complaint seeking a declaratory judgment that the 2009 site plan approval had automatically terminated because “significant work” had not been timely commenced on the project.

Defendants, perhaps not surprisingly, moved to dismiss the complaint pursuant to CPLR 3211(a)(5) on grounds that the complaint was time-barred.

The Court found that although a 6 year limitations period generally applies to a declaratory judgment action, this particular claim could have been brought as a CPLR Article 78 proceeding which has a much shorter 30 day limitations period, and it is well settled that the shorter limitations period applies.

Specifically, NYS Town Law § 274–a (11) provides 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. In this case, the Court held that Plaintiff’s challenge to the 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.

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