Thirty Day Statute Of Limitations Under Town Law § 267-C(1) Begins Running Upon The Filing Of The Minutes Of The Hearing At Which The Determination Was Made, Not Upon The Later Filing Of A Formal Written Decision

Land Use

The Appellate Division, Second Department re-affirmed the well established standard that the statute of limitations for a zoning board’s determination under the State Environmental Quality Review Act (SEQRA) must be commenced within  thirty days of the filing of such decision in the office of the town clerk pursuant to Town Law § 267-c[1].  Matter of 92 MM Motel, Inc. v Zoning Bd. of Appeals of Town of Newburgh, 2011 NY Slip Op 08945 (December 6, 2011).  However, of particular interest in this case was that the Court held that the thirty day statutory period began to run upon the date of the filing of the minutes of the public hearing at which the board rendered a verbal decision, not at the later date upon which the formal written decision of the board was filed in the office of the town clerk.  This distinction is of great importance, as in many instances a zoning boards will grant or deny an application at a public hearing and then follow up on their verbal decision with a formal written decision that contains findings of fact in support of the decision.

The application at issue in this proceeding, was that of respondent, NOWAB Hotel, Inc. (“NOWAB”), whereby the respondent sought area variances for the proposed construction of a hotel on a parcel of land to be subdivided from an existing 12 acre parcel that NOWAB already owned that contained an existing hotel.  At the public hearing on the matter, the Zoning Board of Appeals of the Town of Newburgh (“ZBA”) granted the application and determined that the area variances involved a type II action not subject to review under SEQRA.  Thereafter, on June 10, 2010, the minutes from this meeting were filed in the office of the Town Clerk.  On June 29, 2010, the ZBA’s written decision on the application was filed with the Town Clerk.

Petitioners, the owners of neighboring homes and businesses, commenced an Article 78 Proceeding challenging the ZBA’s SEQRA determination on July 26, 2010.  Both the ZBA and NOWAB made a pre-answer motion pursuant to CPLR 3211(a)(5) to dismiss the proceeding as time-barred pursuant to the 30-day limitations period specified in Town Law § 267-c(1).

A proceeding pursuant to CPLR article 78 seeking review of any determination of a zoning board of appeals “shall be instituted within thirty days after the filing of a decision of the board in the office of the town clerk” (Town Law § 267-c[1]). Likewise, a proceeding challenging a determination based on alleged violations of SEQRA is to be commenced within the applicable 30-day limitations period following “a decision that renders final the consideration of SEQRA issues” (Matter of Save the Pine Bush v Zoning Bd. of Appeals of Town of Guilderland, 220 AD2d 90, 94 [internal quotation marks omitted]). The minutes of a meeting, in which a determination is made and each board member’s vote is set forth, constitutes the decision of a zoning board of appeals, and the filing of those minutes commences the running of the statute of limitations (see Matter of Kennedy v Zoning Bd. of Appeals of Vil. of Croton-on-Hudson, 78 NY2d 1083, 1084-1085; Matter of Mosher[Town of Southport Zoning Bd. of Appeals], 5 AD3d 840, 841; Matter of Sullivan v Dunn, 298 AD2d 974; Matter of Casolaro v Zoning Bd. of Appeals of Vil. of Elmsford, 200 AD2d 742).

The Supreme Court granted respondents’ motions to dismiss and held that the proceeding was time barred.  On appeal, the Second Department affirmed, finding that ”the 30-day limitations period of Town Law § 267-c(1) commenced to run on June 10, 2010, when the minutes of the ZBA’s meeting of May 27, 2010, were filed in the office of the Town Clerk. The petitioners untimely commenced the proceeding more than 30 days later, on July 26, 2010.”

A copy of the Court’s decision in Matter of 92 MM Motel, Inc. v Zoning Bd. of Appeals of Town of Newburgh, 2011 NY Slip Op 08945, can be found by clicking here.

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