IN RE: HAMPSHIRE MANAGEMENT CO. (2008)

In a proceeding pursuant to CPLR article 78 to review a resolution of the respondent Town Board of the Town of Greenburgh dated April 6, 2006, which conditionally approved a portion of the petitioner's amended site plan application, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (DiBella, J.), entered January 26, 2007, which granted the motion of the Town Board of the Town of Greenburgh to dismiss the proceeding as time-barred and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, with costs.

Hampshire Management Co., No. 20, L.L.C. (hereinafter Hampshire) commenced this proceeding pursuant to CPLR article 78 on August 7, 2006, seeking to set aside a resolution of the Town Board of the Town of Greenburgh (hereinafter the Town Board) filed on April 7, 2006, which approved an amended site plan on condition that an electrical transformer be relocated either to the location on the original approved site plan or to another suitable location approved by the Town Board.   The Town Board moved to dismiss the proceeding as time-barred by the 30-day statute of limitations of Town Law § 274-a.   The Supreme Court granted the motion and dismissed the petition.   We affirm.

 Hampshire contends that the statute of limitations is inapplicable, as the Town Board acted without jurisdiction and beyond the scope of its authority when it imposed a condition relating to the location of the electrical transformer.  “Where a local land use agency acts without jurisdiction in approving or denying a site plan, special permit, or other land use application, a challenge to such an administrative action, as ultra vires, is not subject to the 30-day limitations period applicable to review of the site plan, special permit, or other land use determination” (Matter of Eastport Alliance v. Lofaro, 13 A.D.3d 527, 529, 787 N.Y.S.2d 346;  see Matter of Foy v. Schechter, 1 N.Y.2d 604, 615, 154 N.Y.S.2d 927, 136 N.E.2d 883;  Matter of South Shore Audubon Socy. v. Board of Zoning Appeals of Town of Hempstead, 185 A.D.2d 984, 587 N.Y.S.2d 29).   However, it is a jurisdictional defect itself which renders agency action void and tolls the statute of limitations, not merely an allegation of such a defect (see Stevens v. American Water Servs., Inc., 32 A.D.3d 1188, 823 N.Y.S.2d 639;  Matter of Eastport Alliance v. Lofaro, 13 A.D.3d 527, 787 N.Y.S.2d 346;  Matter of Kuhn v. Town of Johnstown, 248 A.D.2d 828, 830, 669 N.Y.S.2d 757).   Accordingly, “plaintiffs must show a jurisdictional defect in order to avoid the bar of the Statute of Limitations” (Nager v. Incorporated Vil. of Saddle Rock, 140 Misc.2d 644, 646, 530 N.Y.S.2d 966, affd. 160 A.D.2d 785, 555 N.Y.S.2d 614).

 Hampshire failed to establish a jurisdictional defect (see 420 Tenants Corp. v. EBM Long Beach, LLC, 41 A.D.3d 641, 643, 838 N.Y.S.2d 649, citing Nager v. Incorporated Vil. of Saddle Rock, 140 Misc.2d 644, 646, 530 N.Y.S.2d 966, affd. 160 A.D.2d 785, 555 N.Y.S.2d 614).   The Town Board was authorized by both state statute and local law to consider the acoustic, visual, and otherwise aesthetic impact of the proposed land use on adjoining residential lands.   Thus, the conditional approval did not constitute an exercise of power outside the scope of the Town Board's jurisdiction (see Town Law § 274-a[2][a];  1980 Town of Greenburgh Zoning Ordinance §§ 285-54[D], [K];  Matter of Exxon Corp. v. Gallelli, 192 A.D.2d 706, 706-707, 597 N.Y.S.2d 139;  Matter of Dodson v. Planning Bd. of Town of Highlands, 163 A.D.2d 804, 805-806, 558 N.Y.S.2d 1012;  cf. Moriarty v. Planning Bd. of Village of Sloatsburg, 119 A.D.2d 188, 506 N.Y.S.2d 184), and the Supreme Court properly dismissed the proceeding, as Hampshire's petition was not timely under Town Law § 274-a (see Matter of Elliot v. Boycott, 293 A.D.2d 676, 676-677, 740 N.Y.S.2d 632;  Matter of Long Is. Pine Barrens Socy. v. Planning Bd. of Town of Brookhaven, 247 A.D.2d 395, 395-396, 667 N.Y.S.2d 912).