IN RE: WKP (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the second and third causes of action and by vacating the second ordering paragraph, and as modified the order is affirmed without costs.

Memorandum: Petitioners-plaintiffs WKP, LLC, Oakridge MFR Holdings, LLC, and RDNW LLC (collectively, petitioners) commenced this hybrid CPLR article 78 proceeding and declaratory judgment action (proceeding) seeking various relief after respondent-defendant Town of Lancaster Town Board (Town Board) denied petitioners’ application to rezone the subject property from a light commercial district to a multifamily residential/mixed-use district. Respondents-defendants Town Board and Town of Lancaster (collectively, respondents) moved to dismiss the petition-complaint. In appeal No. 1, respondents appeal from an order that denied their motion and ordered the Town Board to revote on petitioners’ application to rezone the subject property. The Town Board thereafter conducted a revote and again denied petitioners’ application for rezoning. Petitioners then made an application seeking various relief on the basis that the Town Board failed to comply with the terms of the order directing the revote. In appeal No. 2, respondents appeal from an amended order that, inter alia, determined that the Town Board's revote was invalid and ordered the Town Board to conduct another vote on petitioners’ rezoning application.

In appeal No. 1, we agree with respondents that Supreme Court erred in denying the motion with respect to the second and third causes of action, and we therefore modify the order accordingly. Petitioners’ second cause of action seeks a writ of mandamus compelling the Town Board to revote on petitioners’ rezoning application. We conclude that the court erred in denying respondents’ motion with respect to the second cause of action inasmuch as mandamus to compel does not lie in this case (see Matter of Wolff v Town/Village of Harrison, 30 AD3d 432, 433 [2d Dept 2006]; see generally Matter of COR Van Rensselaer St. Co. III, Inc. v New York State Urban Dev. Corp., 221 AD3d 1524, 1528 [4th Dept 2023], lv denied 41 NY3d 907 [2024]).

As for the third cause of action, which alleges, inter alia, that the Town Board's determination was arbitrary and capricious, we conclude that the court erred in denying the motion as to that cause of action because it is time-barred. “ ‘In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those which seek ․ declaratory relief, on the other hand’ ” (Matter of Greenberg v Assessor of Town of Scarsdale, 121 AD3d 986, 989 [2d Dept 2014]; see Parker v Town of Alexandria, 138 AD3d 1467, 1468 [4th Dept 2016]). We conclude that the allegations in the third cause of action are governed by CPLR article 78 and, inasmuch as petitioners commenced this proceeding beyond the four-month statute of limitations applicable to CPLR article 78 proceedings, the court erred in denying the motion with respect to that cause of action (see Byrnes v Senate of State of N.Y., 228 AD3d 1363, 1365 [4th Dept 2024], appeal dismissed 41 NY3d 1022 [2024], lv dismissed in part & denied in part 41 NY3d 1024 [2024]).

However, we reject respondents’ contention in appeal No. 1 that the first cause of action is time-barred. That cause of action sought, inter alia, a declaration annulling the Town Board's determination on petitioners’ rezoning application. “In order to determine the [s]tatute of [l]imitations applicable to a particular declaratory judgment action, the court must ‘examine the substance of that action to identify the relationship out of which the claim arises and the relief sought’ ” (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202 [1987]). It is well settled that “the denial of an application to have property rezoned is a legislative action” (Matter of Zionts v Town of Amherst, 2 AD3d 1414, 1415 [4th Dept 2003]), and “[a] declaratory judgment action, not a CPLR article 78 proceeding, is the proper vehicle to challenge the validity of” such a determination (Janiak v Town of Greenville, 203 AD2d 329, 331 [2d Dept 1994]; see Matter of Sack v City of Buffalo Common Council, 204 AD3d 1399, 1399-1400 [4th Dept 2022]). We therefore conclude that the four-month statute of limitations applicable to CPLR article 78 proceedings does not apply to petitioners’ first cause of action (see Matter of AL Asphalt Corp. v Town of Hamburg, 247 AD3d 1503, 1505 [4th Dept 2026]; South Liberty Partners, L.P. v Town of Haverstraw, 82 AD3d 956, 957-958 [2d Dept 2011]).

We nonetheless agree with respondents in appeal Nos. 1 and 2 that the court erred by directing the Town Board to revote on petitioners’ application to rezone the subject property. Pursuant to CPLR 3001, “[t]he supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed.” A declaratory judgment's purpose is to “adjudicate the parties’ rights before a ‘wrong’ actually occurs in the hope that later litigation will be unnecessary” (Klostermann v Cuomo, 61 NY2d 525, 538 [1984]). Declaratory relief “cannot be executed upon so as to compel a party to perform an act” (Trovato v Galaxy Sanitation Servs. of N.Y., Inc., 171 AD3d 832, 834 [2d Dept 2019] [internal quotation marks omitted]; see Matter of Hyde Park Landing, Ltd. v Town of Hyde Park, 130 AD3d 730, 731 [2d Dept 2015]). Here, the order in appeal No. 1 compelled respondents to perform an act, i.e., to conduct a new vote regarding petitioners’ application to rezone the subject property. Inasmuch as that “ ‘is not the function of a declaratory judgment action’ ” (Fogel v Kaleida Health, 247 AD3d 1655, 1656 [4th Dept 2026]), we further modify the order in appeal No. 1 by vacating the second ordering paragraph requiring respondents to conduct a revote on petitioners’ application.

In appeal No. 2, inasmuch as petitioners’ application seeking various relief following the first revote and the amended order directing another revote were predicated on respondents’ noncompliance with the improperly issued directive ordering a revote in appeal No. 1, we reverse the amended order and deny petitioners’ application.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court