| Matter of Southwest Ogden Neighborhood Assn. v Town of OgdenPlanning Bd. |
| 2007 NY Slip Op 07177 [43 AD3d 1374] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of Southwest Ogden Neighborhood Association et al.,Appellants, et al., Petitioner, v Town of Ogden Planning Board, Respondent. Ferne Richardson etal., Nonparty Respondents. |
—[*1] Daniel G. Schum, Town Attorney, Spencerport, for respondent-respondent. Fix Spindelman Brovitz & Goldman, P.C., Fairport (Reuben Ortenberg of counsel), forrespondents.
Appeal from a judgment (denominated order and judgment) of the Supreme Court, MonroeCounty (Evelyn Frazee, J.), entered October 23, 2006 in a proceeding pursuant to CPLR article78. The judgment, inter alia, dismissed the petition with prejudice.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by providing that the petition is dismissed without prejudiceand as modified the judgment is affirmed without costs.
Memorandum: Petitioners commenced this CPLR article 78 proceeding challenging thedetermination of respondent Town of Ogden Planning Board (Planning Board) that noenvironmental impact statement is required with respect to a residential subdivision projectproposed by nonparty respondents Ferne Richardson, the property owner, and Euler RoadProperties, LLC (Euler), the developer. We conclude that Supreme Court properly granted themotion of Richardson and Euler and the Planning Board's cross motion to dismiss the petitionbut erred in doing so on the merits. Although dismissal of the petition was required based onpetitioners' failure to join Richardson and Euler as necessary parties (see generally CPLR1001 [a]; Matter of East BaysideHomeowners Assn., Inc. v Chin, 12 AD3d 370, 371 [2004], lv denied 4 NY3d704 [2005]; Matter of Spence v Cahill, 300 AD2d 992, 992-993 [2002], lv denied1 NY3d 508 [2004]), we agree with petitioners that the statute of limitations has not expired withrespect to Richardson and Euler and thus that the petition should have been dismissed withoutprejudice (cf. Spence, 300 [*2]AD2d at 993). The 30-daystatute of limitations for challenging the subdivision proposal on State Environmental QualityReview Act ([SEQRA] ECL art 8) grounds will not be triggered until the Planning Board filesthe preliminary plat approval (see Town Law § 282; Matter of Long Is. PineBarrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608, 613-614 [1991]; see also Matter of Eadie v Town Bd. ofTown of N. Greenbush, 7 NY3d 306, 317 [2006]; Matter of North Country Citizens for Responsible Growth, Inc. v Town ofPotsdam Planning Bd., 39 AD3d 1098, 1102-1103 [2007]; cf. Stop-The-Barge v Cahill, 1 NY3d218, 223-224 [2003]), and the Planning Board's SEQRA determination is not yet ripe forjudicial review (see Matter of Young v Board of Trustees of Vil. of Blasdell, 221 AD2d975, 977 [1995], affd 89 NY2d 846 [1996]). We therefore modify the judgmentaccordingly. In light of our determination, we do not consider petitioners' remaining contentions.Present—Scudder, P.J., Hurlbutt, Gorski, Centra and Green, JJ.