| Matter of Rose Woods, LLC v Weisman |
| 2011 NY Slip Op 05076 [85 AD3d 801] |
| June 7, 2011 |
| Appellate Division, Second Department |
| In the Matter of Rose Woods, LLC, et al.,Appellants, v John T. Weisman et al., Respondents. |
—[*1] Van DeWater & Van DeWater, LLP, Poughkeepsie, N.Y. (Audrey L. Friedrichsen Scott ofcounsel), for respondents.
In a proceeding pursuant to CPLR article 78, in effect, to review a determination of the Townof Poughkeepsie Planning Board dated June 19, 2008, which conditionally granted thepetitioner's application for final subdivision plat approval, the petitioner appeals from a judgmentof the Supreme Court, Dutchess County (Sproat, J.), dated February 8, 2010, which denied thepetition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
On May 30, 2008, the petitioners submitted, to the Town of Poughkeepsie Planning Board(hereinafter the Planning Board), a final subdivision application for a four-lot residentialdevelopment, which included individual sewer pumps on each lot. In a memorandum dated June11, 2008, the Town of Poughkeepsie Sewer Department (hereinafter the Sewer Department)commented that individual pumps were not acceptable, and that one pump must serve the fourlots. Additionally, in a letter from the engineer retained by the Town (hereinafter the TownEngineer) to the Planning Board dated June 12, 2008, the Town Engineer remarked that theSewer Department would not accept or approve four individual pump stations. On June 19, 2008,the Planning Board adopted a resolution granting conditional final subdivision plot approval,subject to 24 specific conditions, which included the restriction articulated in the comments ofthe Sewer Department and the Town Engineer. The resolution was filed in the Office of theTown Clerk of the Town of Poughkeepsie on June 20, 2008.
Thereafter, the Planning Board adopted two resolutions granting the petitioners 90-dayextensions for final subdivision approval. In a letter from the petitioners' retained engineer to thechair of the Planing Board dated February 13, 2009, the petitioners requested final subdivisionapproval. In that letter, the petitioners also referred to the restriction set forth in the SewerDepartment's comments, informing the Planning Board that, contrary to the restriction, "[t]hesubdivision has been designed with individually owned pump stations and force mains." In aletter dated June 9, 2009, the Sewer Department reiterated to the petitioners that individualpumps were unacceptable, as such pumps had presented maintenance problems in the past. OnJune 16, 2009, the day before the last extension for final subdivision [*2]approval was to expire, the petitioners commenced this proceedingpursuant to CPLR article 78 purportedly seeking, inter alia, to compel the Sewer Department toapprove the four-pump sewer system and to compel the Chair of the Planning Board tocountersign the final subdivision application. The Supreme Court denied the petition anddismissed the proceeding. We affirm.
Initially, we agree with the Supreme Court that relief in the nature of mandamus is notavailable in the instant case. The extraordinary remedy of mandamus is available in limitedcircumstances only to compel the performance of a purely ministerial act which does not involvethe exercise of official discretion or judgment, and only when a clear legal right to the relief hasbeen demonstrated (see Klostermann v Cuomo, 61 NY2d 525, 539 [1984]; Matter of Horowitz v New York CityPolice Dept., 82 AD3d 887 [2011]). Such relief does not lie to compel the performanceof a discretionary act by a Planning Board, its chair, or any other municipal agency (see Matter of Inn at Hunter, Inc., v Villageof Hunter, 35 AD3d 1072 [2006]; Matter of Kroll v Village of E. Hampton, 293AD2d 614 [2002]; Matter of Smith v Board of Appeals of Town of Islip, 202 AD2d 674[1994]; Matter of Young v Town of Huntington, 121 AD2d 641 [1986]).
Regardless of how the petitioners characterize this proceeding, they are, in effect, seeking toreview the Planning Board's determination dated June 19, 2008, and filed June 20, 2008, which issubject to a 30-day statute of limitations (see Town Law § 282). The petitioners'challenge to the Planning Board's determination granting conditional final subdivision approvalis time-barred, as this proceeding was commenced more than 30 days after the resolution wasfiled with the Town Clerk (see Town Law § 282; Matter of Long Is. PineBarrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608, 614 [1991]; Matter of Preservation Collective v Townof Monroe, 32 AD3d 396 [2006]; Matter of International Innovative Tech. Group Corp. v Planning Bd. ofTown of Woodbury, N.Y., 20 AD3d 531 [2005]; Matter of Ramapo Homeowners Assn. v Planning & Zoning Bd. of Town ofRamapo, 2 AD3d 530 [2003]). Contrary to the petitioners' contention, the two 90-dayextensions of the time within which they could obtain final subdivision approval by conformingtheir proposed subdivision plat to the conditions imposed upon it did not toll the statute oflimitations, as the Planning Board's determination imposing the condition referable to themaximum number of pumps became final and binding on the petitioner upon the adoption of theresolution dated June 19, 2008 (see Matter of Long Is. Pine Barrens Socy. v Planning Bd. ofTown of Brookhaven, 78 NY2d at 610; Matter of International Innovative Tech. GroupCorp. v Planning Bd. of Town of Woodbury, N.Y., 20 AD3d at 532-533).
The petitioners' remaining contentions are without merit. Prudenti, P.J., Angiolillo, Florioand Cohen, JJ., concur.