Allens Creek/ Corbetts Glen Preservation Group v. Town of Penfield Planning Board

224 A.D.2d 979, 637 N.Y.S.2d 557, 1996 N.Y. App. Div. LEXIS 1628

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1996
• Status: Published

Opinion

—Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Petitioners commenced this combined article 78 proceeding and declaratory judgment action, seeking to annul certain 1989 and 1993 amendments to the Zoning Ordinance of the Town of Penfield by respondent Town Board and to annul other actions taken by respondents concerning a 14-acre parcel owned by respondent Linden Associates. We agree with Supreme Court that the first three causes of action should be dismissed but for a different reason.

Because a CPLR article 78 proceeding could have been utilized to challenge the alleged procedural irregularities in enacting the 1989 and 1993 amendments to the Zoning Ordinance, the four-month Statute of Limitations applies (see, CPLR 217; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202-203). Thus, we modify the judgment on appeal by providing that those causes of action are dismissed on Statute of Limitations’ grounds and by vacating the declarations in the first arid second decretal paragraphs. (Appeals from Judgment of Supreme Court, Monroe County, Frazee, J. — CPLR art 78.) Present — Denman, P. J., Lawton, Doerr, Balio and Boehm, JJ.