“Third Department’s View
The Third Department has taken a
difference view of the issue. For example, in
Stankavich v. Town of Duanesburg Planning
Bd.,
7 the planning board of the upstate Town
of Duanesburg granted a special use permit
to Southwestern Bell Mobile Systems, doing
business as Cellular One, which allowed it
to construct a 250-foot cellular telephone
tower and a utility building on property in
the town. The planning board’s decision was
filed in the town clerk’s office on Sept. 25,
1996. It subsequently issued another special
use permit to Cellular One in accordance with
a revised site plan showing a free-standing
tower in place of the original tower with
support cables. This decision was filed on
Nov. 1, 1996. Cellular One then proceeded to
construct the tower and began operations on
Dec. 31, 1996.
On April 11, 1997, an Article 78 proceeding
was filed seeking to declare the special use
permits invalid due to the planning board’s
failure to comply with General Municipal
Law §239-m. The planning board moved to
dismiss the petition on the ground that it was
barred by the 30-day statute of limitations
in Town Law §274-b(9). The Supreme Court,
Schenectady County, granted the motion,
finding the petition to be time-barred, and
the petitioners appealed.
The Third Department declared that the
petitioners’ argument that the planning
board’s granting of the special use permits
was jurisdictionally defective and subject
to collateral attack was “not without merit.”
However, it continued, the Third Department
said that it did not necessarily follow that the
statute of limitations defense was negated “in
light of this apparent jurisdictional defect.”
According to the Third Department, every
action had to be commenced within the time
specified in the CPLR or other applicable
statute, and if no limitation was specified, it had to be commenced within six years of
the accrual of the cause of action.
In this case, the Third Department
explained, the petitioners were seeking to
annul the special use permits on the ground
that the planning board lacked jurisdiction
due to its failure to comply with General
Municipal Law §239-m. It then ruled that,
because the petitioners’ challenge had
not sought to test the constitutionality or
validity of the zoning ordinance but only had
questioned the procedure followed by the
planning board in granting the permits and, in
essence, had claimed that the planning board
had acted illegally, this matter “could have
been resolved” in an Article 78 proceeding.
Consequently, the Third Department held, the
30 day period of limitations in Town Law §274-
b(9) governed and, because the proceeding
had not been commenced within 30 days of
the filing of the planning board’s decision, the
Supreme Court’s dismissal of the petition as
time-barred was proper.8”
read the entire article
Guardino, Anthony. New York Law Journal Real Estate Trends 26 January 2011.