Daniel Richmond Granted Dismissal Of Article 78 Proceeding

Court upholds variances, site plan approval, and building permit for mixed-use project, finding that the challenge was barred by the statute of limitations and petitioners’ failure to exhaust their administrative remedies, and that relief requested by the petitioners violated the New York State Building Code.

By Decision and Order, dated July 26, 2017, the Honorable Judge Sherri L. Eisenpress granted Zarin & Steinmetz’s motion to dismiss an Article 78 Petition, allowing Zarin & Steinmetz’s client to complete construction of its mixed-use project.

The Court concurred that the petitioners were time-barred from alleging defective notice of the underlying proceedings before the Village Zoning Board of Appeals and Planning Board, holding that this claim was in essence a procedural challenge, and, accordingly, was governed by the statute of limitations applicable to Article 78 proceedings.

The Court also ruled that the petitioners failed to exhaust their administrative remedies in connection with the subject building permit, noting that “the photographic evidence and exhibits make clear that construction was open and obvious” well in advance of the subject Article 78 proceeding.

The Court also concurred that “the relief requested by Petitioners in their Petition contravenes the Building Code adopted by the State of New York.”

The case is captioned 35 No. Cole Ave., LLC & Collishaw v. Village of Spring Valley Planning Board, et al., Index No. 31450/2017 (Sup. Ct. Rockland Cnty.) (Eisenpress, J.)

A copy of the Decision & Order can be found here.