Dugan v. Liggan

• Decision Date: 29 December 2011
• Citation: 90 A.D.3d 1445,935 N.Y.S.2d 730,2011 N.Y. Slip Op. 09563
• Parties: In the Matter of James P. DUGAN et al., Appellants, v. Billy LIGGAN et al., Constituting the Planning Board of the Town of Rosendale, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09563

90 A.D.3d 1445

935 N.Y.S.2d 730

In the Matter of James P. DUGAN et al., Appellants,

v.Billy LIGGAN et al., Constituting the Planning Board of the Town of Rosendale, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 29, 2011.

DeGraff, Foy & Kunz, L.L.P., Albany (David F. Kunz of counsel), for James P. Dugan and others, appellants.

Mary Lou P. Christiana, Kingston, for Billy Liggan and others, respondents.

Riseley & Moriello, Kingston (Michael A. Moriello of counsel), for Daniel Falk and others, respondents.Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston (Eric M. Kurtz of counsel), for Ulster County Department of Health–Environmental Sanitation Division, respondent.

Before: PETERS, J.P., LAHTINEN, STEIN, McCARTHY and GARRY, JJ.

STEIN, J.

Appeal from a judgment of the Supreme Court (Cahill, J.), entered July 30, 2010 in Ulster County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

In August 2006, respondents Daniel Falk, Kevin Evans and Angela Evans (hereinafter collectively referred to as the applicants) filed an application with the Planning Board of the Town of Rosendale for a three-phase subdivision in the Town of Rosendale, Ulster County. The proposed project was to consist of 21 residential lots and one preexisting commercial lot. The Board began a coordinated environmental review in October 2006 and formally announced its intention to act as a lead agency for purposes of the State Environmental Quality Review Act ( see ECL art. 8 [hereinafter SEQRA] ). Respondent Ulster County Department of Health–Environmental Sanitation Division (hereinafter Department) was named as one of the involved agencies. The project was classified as a type I action under SEQRA. Public hearings were conducted by the Board in April and December 2007 and public comments were solicited on the proposed plan.

In July 2008, the Board determined that an environmental impact statement would not be necessary and filed a negative declaration of environmental significance with the Town Clerk. The Board then adopted a resolution and issued a decision granting preliminary plat approval, which was filed with the Town Clerk on September 4, 2008. In February 2009, the preliminary approval was extended for a six-month period. In September 2009, after conducting an extensive review of the relevant sewage disposal plans, as well as the soil and water conditions of the property, the Department issued a certificate of approval of the subdivision plans, final subdivision plat approval was granted and such approval was promptly filed with the Town Clerk.

In October 2009, petitioners—a group of neighboring landowners whose properties adjoin the proposed subdivision—commenced this CPLR article 78 proceeding seeking review of the approvals of the subdivision plan by the Board and by the Department. Respondents answered asserting, among other things, that petitioners had not commenced the proceeding within the applicable statute of limitations. Supreme Court dismissed the petition as untimely, prompting this appeal by petitioners.¹

We modify. The four-month period in which a CPLR article 78 proceeding must be brought to review an agency determination commences on the date “the determination to be reviewed becomes final and binding upon the petitioner” (CPLR 217[1]; see CPLR 7801[1]; Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of N.Y., 5 N.Y.3d 30, 34, 799 N.Y.S.2d 182, 832 N.E.2d 38 [2005] ). A determination is final and binding when the decision maker has arrived at “a definitive position on the issue that inflicts an actual, concrete injury [and when that injury] may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party” ( Matter of Essex County v. Zagata, 91 N.Y.2d 447, 453, 672 N.Y.S.2d 281, 695 N.E.2d 232 [1998] [internal quotation marks and citation omitted]; see Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 519, 520, 505 N.Y.S.2d 24, 496 N.E.2d 183 [1986], cert. denied 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 578 [1986] ).

Consideration by the Department of whether aspects of a subdivision plan comport with the Public Health Law and Department regulations pursuant to its...