When commencing an action or proceeding challenging a land use approval, it is critical that the plaintiff/petitioner identify all parties having an interest in both the approval itself and the real property to which it pertains, and to consider which of those parties should be named. As in other areas of litigation, the potential penalty for failure to name a necessary and indispensable party is dismissal of the action without reaching the merits. This concept is hardly new; however, it continues to arise in land use litigation throughout the State, often with harsh results for unwary litigants. The Second Department’s very recent decision in Mensch v Planning Board of the Village of Warwick, ____ AD3d ____, Docket No. 2018-12524 (Dec. 16, 2020), provides yet another example of why it is so important for a challenger to seek out and name the correct parties to their suit before their opportunity to do so expires.
In Mensch, the petitioners/plaintiffs (Petitioners) sought to overturn their local planning board’s decision granting site plan approval for a neighboring property in the Village. However, the Petitioners initially failed to name the owners of the subject property in the proceeding, and only named them in an amended pleading after the 30-day statute of limitations had expired. The Supreme Court, Orange County dismissed the proceeding for failure to join necessary and indispensable parties before the statute of limitations expired (see Decision & Order at p. 1). The Appellate Division affirmed.
In an effort to rescue their proceeding from dismissal, the Petitioners argued that they should be permitted to add the property owners as respondents–notwithstanding the expiration of the statute of limitations–pursuant to the “relation-back doctrine.” The doctrine “allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are ‘united in interest’” (id. at p. 3 [citation omitted]). The Appellate Division rejected Petitioners’ argument for two reasons: First, the Petitioners failed to demonstrate that the property developer (applicant) and the property owners were “united in interest”, as required under the second prong of the doctrine; and second, the Petitioners failed to demonstrate a mistake as to the identity of the property owners at the time of their initial pleading (id. at p. 4). Thus, the Court affirmed dismissal of the action (id.).
The Court’s finding in Mensch that the respondent-developer and property owners were not “united in interest” is particularly notable because it joins similar land use decisions in which the Second Department has declined to apply the relation-back doctrine where the developer/applicant and property owners are not the same parties (see e.g. Ferruggia v Zoning Bd. of Appeals of the Town of Warwick, 5 AD3d 682, 682-83 [2d Dept 2004] [cited in the Court’s Decision & Order]; Germain v Town of Chester Planning Bd., 178 AD3d 926, 927 [2d Dept 2019]). This pattern of decisions reinforces the point that, in the vast majority of cases, property owners are necessary and indispensable parties to legal challenges of land use decisions benefitting their properties, and accordingly, they must be named (see e.g. Feder v Town of Islip Zoning Bd. of Appeals, 114 AD3d 782, 784 [2d Dept 2014] [holding that a landowner is a necessary and indispensable party to a proceeding challenging a zoning board’s granting of variances]; Caltagirone v Zoning Bd. of Appeals, 49 AD3d 729, 729 [2d Dept 2008] [same]; Cybul v Vill. of Scarsdale, 17 AD3d 462, 463, [2d Dept 2005] [failure to name landowner in Article 78 challenging Planning Board decision was fatal]).
A copy of the Court’s Decision & Order can be accessed through the following link: Mtr of Mensch.