Legal Memorandum LU12


STATUTE OF LIMITATIONS IN THE CASE OF A FAILURE TO REFER
ADOPTION OR AMENDMENT OF LOCAL ZONING ORDINANCE OR LAW
TO THE COUNTY PLANNING BOARD

       General Municipal Law Sections 239-m and -n require cities, towns and villages to refer certain actions, such as adoption and amendment of zoning ordinances and comprehensive plans, issuance of special use permits, approval of site plans and subdivision plats to the county planning agency if they apply to property within 500 feet of a municipal boundary, a county or state highway or other property listed in the statutes. The statutes authorize municipalities and counties to agree that certain of the actions listed are of local concern, rather than county-wide, and need not be referred to the county. If an action is subject to referral, however, an action may be challenged on the grounds that referral was not conducted or conducted improperly, and the courts may well invalidate the action. Importantly, failure to refer a covered legislative enactment matter to the county could result in the matter being invalidated for up to six years after it was purportedly enacted, though a recent case decided by the Appellate Division, Third Department, tacitly suggests that the period in which the enactment may be challenged may only be four months.

       Unlike other causes of action pertaining to planning and zoning matters, judicial review of a claim that the requirements of §§239 -m and -n have not been followed is not a matter of reviewing the record for substantial evidence to support a referring body's decision, but simply whether the referral was made in accordance with the statutory procedures. If not, the action will be invalidated. This is so because failure to properly refer is a "jurisdictional defect which renders the enactment invalid" (Caruso v. Town of Oyster Bay, 172 Misc.2d 93, affirmed as modified 250 A.D.2d 639 [1997] ).

       Section 239 -m requires that both legislative actions (adopting or amending a zoning law) and administrative actions (e.g., site plan review, variance approvals, etc) be referred to the county. The enabling statutes provide a thirty day statute of limitations for administrative actions (i.e., Town Law §§267-c [1], 274-a [11], and 274-b [9] require an Article 78 proceeding to be filed within 30 days of the filing of a decision on a variance, site plan review and special use permit, respectively), but not for legislative actions. There is no stated time period in the city, town or village enabling laws within which an action must be brought. Therefore, the time period within which to bring an Article 78 proceeding against a municipality regarding the procedures used to enact legislation is four months (CPLR §217; Save the Pine Bush, Inc. v. City of Albany, 70 N.Y. 2d 193, [1987] ), but where a proceeding is brought alleging the validity of a legislative act based upon failure to refer to the county ("not a mere procedural irregularity but is rather a jurisdictional defect involving the validity of a legislative act" Ernalex Const. Realty Corp. v. City of Glen Cove, 256 A.D. 2d 336 [2d Dept 1998] ), such a proceeding is a request for a declaratory action rather than an Article 78 proceeding.

       A declaratory judgment action, not an Article 78 proceeding, is the method for challenging the validity of a legislative action (Kamhi v. Yorktown, 141 A.D. 2d 607, aff'd 74 N.Y. 2d 423 [1989]). In both Ernalex Const. Realty Corp. v. City of Glen Cove, supra, and Janiak v. Town of Greenville, 203 A.D. 329 (2d Dept 1994), the Appellate Division held that because a declaratory judgment action, rather than an Article 78 proceeding, was the proper vehicle for challenging the validity of a local zoning law, a six-year statute of limitations was applicable (CPLR §213).

       Along the lines of “an ounce of prevention is worth a pound of cure,” municipal boards are advised to strictly comply with the General Municipal Law §239-m and §239-n (if applicable) requirements.