IN RE: SOUTHWEST OGDEN NEIGHBORHOOD ASSOCIATION

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: SOUTHWEST OGDEN NEIGHBORHOOD ASSOCIATION, Robert D. Davies, Mark S. Bertolani, Patricia Olson, Petitioners-Appellants, et al., Petitioner, v. TOWN OF OGDEN PLANNING BOARD, Respondent-Respondent. Ferne Richardson and Euler Road Properties, LLC, Respondents.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, GORSKI, CENTRA, AND GREEN, JJ. Underberg & Kessler LLP, Rochester (Ronald G. Hull of Counsel), for Petitioners-Appellants. Daniel G. Schum, Town Attorney, Spencerport, for Respondent-Respondent. Fix Spindelman Brovitz & Goldman, P.C., Fairport (Reuben Ortenberg of Counsel), for Respondents.

 Petitioners commenced this CPLR article 78 proceeding challenging the determination of respondent Town of Ogden Planning Board (Planning Board) that no environmental impact statement is required with respect to a residential subdivision project proposed by nonparty respondents Ferne Richardson, the property owner, and Euler Road Properties, LLC (Euler), the developer.   We conclude that Supreme Court properly granted the motion of Richardson and Euler and the Planning Board's cross motion to dismiss the petition but erred in doing so on the merits.   Although dismissal of the petition was required based on petitioners' failure to join Richardson and Euler as necessary parties (see generally CPLR 1001[a];  Matter of East Bayside Homeowners Assn., Inc. v. Chin, 12 A.D.3d 370, 371, 783 N.Y.S.2d 305, lv. denied 4 N.Y.3d 704, 792 N.Y.S.2d 897, 825 N.E.2d 1092;  Matter of Spence v. Cahill, 300 A.D.2d 992, 992-993, 752 N.Y.S.2d 511, lv. denied 1 N.Y.3d 508, 777 N.Y.S.2d 17, 808 N.E.2d 1276), we agree with petitioners that the statute of limitations has not expired with respect to Richardson and Euler and thus that the petition should have been dismissed without prejudice (cf. Spence, 300 A.D.2d at 993, 752 N.Y.S.2d 511).   The 30-day statute of limitations for challenging the subdivision proposal on State Environmental Quality Review Act ( [SEQRA] ECL art. 8) grounds will not be triggered until the Planning Board files the preliminary plat approval (see Town Law § 282;  Matter of Long Is. Pine Barrens Socy. v. Planning Bd. of Town of Brookhaven, 78 N.Y.2d 608, 613-614, 578 N.Y.S.2d 466, 585 N.E.2d 778;  see also Matter of Eadie v. Town Bd. of Town of N. Greenbush, 7 N.Y.3d 306, 317, 821 N.Y.S.2d 142, 854 N.E.2d 464;  Matter of North Country Citizens for Responsible Growth, Inc. v. Town of Potsdam Planning Bd., 39 A.D.3d 1098, 1102-1103, 834 N.Y.S.2d 568;  cf. Stop-The-Barge v. Cahill, 1 N.Y.3d 218, 223-224, 771 N.Y.S.2d 40, 803 N.E.2d 361), and the Planning Board's SEQRA determination is not yet ripe for judicial review (see Matter of Young v. Board of Trustees of Vil. of Blasdell, 221 A.D.2d 975, 977, 634 N.Y.S.2d 605, affd. 89 N.Y.2d 846, 652 N.Y.S.2d 729, 675 N.E.2d 464).   We therefore modify the judgment accordingly.   In light of our determination, we do not consider petitioners' remaining contentions.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by providing that the petition is dismissed without prejudice and as modified the judgment is affirmed without costs.

MEMORANDUM: