A multi-million-dollar development project which relies on site plans approved by a municipal board months prior is ready to break ground. However, the municipal board failed to refer the plans to the county planning board before approving them. The result? A multi-million-dollar illegal structure.
In order to ensure that local municipal planning and zoning decisions do not negatively harm a neighboring community or the county, General Municipal Law § 239-m requires certain actions, for properties within five hundred feet of certain boundaries such as neighboring city, village or towns or county or state park, be referred to the county planning board or regional planning board. This includes issuing special permits, approving site plans or granting use or area variances to properties, which, of course, are crucial and routine to most development projects.
When a municipal board fails to comply with General Municipal Law § 239-m it nullifies the action in its entirety. The nullification of the action can then have a ripple effect making every approval thereafter also illegal. Save Harrison. Inc. v. Town/Village of Harrison, 168 A.D.3d 949, 653-954 (2d Dept 2019).
Even more problematic, failure to comply with Section 239-m is a jurisdictional defect and not constrained by the usual thirty-day statute of limitations. A challenge can come up to six years after the action (CPLR 213(1)). The result could be catastrophic as projects forge forward, not knowing the initial misstep until a challenge occurs, months or even years later.
What’s the remedy? The Courts have been clear, there isn’t one. At least not an efficient one. Consistently the Courts have nullified municipal board actions that fail to comply with General Municipal Law § 239-m and remit the matter back to the municipal boards for compliance with the statute. Eastport Alliance v. Lofaro, 13 A.D.3d 527, 529 (2d Dept 2004); Zelnick v. Small, 268 A.D.2d 527, 529 (2d Dept 2000). The delays associated with such acts can be crippling to any project.
There is one work around. A municipality and county planning board can enter into an agreement allowing the municipality to grant special permits, site plans and/or variances without the county planning board’s approval. However, developers beware, these agreements are generally reserved for single family residential properties and not larger, more complex development projects.