Developer sought site plan approval for constructing a 24-unit townhouse project. The Town of South Bristol Planning Board (“Board”) responded with a negative declaration of environmental significance and site plan approval. In 2009, Developer altered project from townhouses to condominiums, and the Board again issued a negative declaration and site approval. Finally, in 2012, the Board approved a re-subdivision creating two lots from the previous twenty-four. Plaintiff commenced action for declaratory judgment that the 2009 site plan approval automatically terminated because “significant work” had not been timely commenced. Defendants moved under CPLR 3211(a)(5) to dismiss due to the statute of limitations; Plaintiff cross-moved under CPLR article 63 for a preliminary injunction halting construction work and development of the project. Supreme Court granted defendants' motion to dismiss.

On appeal, the Appellate Division found that even though the statute of limitations for declaratory judgments is normally six years, when the claim in question could have been brought in another form, the statute of limitations with the shorter term applies. Here, Town Law § 274–a (11) gives a 30–day period for bringing an Article 78 proceeding challenging “a decision of the planning board or any officer, department, board or bureau of the town”. Thus plaintiff's challenge to the Town Code Enforcement Officer's interpretation of “significant work” could have been brought in a Article 78 proceeding under Town Law § 274–a (11) and accordingly was time-barred.

The case is Bristol Homeowners Environmental Preservation Associates, LLC v Town of South Bristol, 2014 WL 5901427 (4 Dept.) and the opinion can be accessed at: https://www.nycourts.gov/courts/ad4/Clerk/Decisions/2014/11-14-14/PDF/0921.pdf