“An ounce of prevention is worth a pound of cure.” -Benjamin Franklin.  This pithy logic from Benjamin Franklin to prevent fires in colonial Philadelphia should serve as a reminder to municipal boards of the strict compliance required by New York’s General Municipal Law (GML) §239-m mandated by the courts.  In New York, the failure to refer certain actions to the respective county planning board may result in invalidating such actions, effectively “burning down” an intended zoning amendment.

Prior to adopting any new provisions or amendments to its zoning code, GML §239-m(3)(a)(ii), a municipal body must “refer” the “adoption or amendment of a zoning ordinance or local law” to the county planning board or agency or regional planning council for review and recommendations.  GML §239-m goes on to require such municipal to submit to the county planning agency a “full statement of such proposed action.”  A ““full statement of such proposed action,” is defined as “all materials required by and submitted to the referring body as an application on a proposed action, including a completed environmental assessment form and all other materials required by such referring body in order to make its determination of significance pursuant to [SEQRA]”.  However, if a regional planning board fails to act within 30 days, a referring entity may then take “final action” on the proposal without the planning board report.

Notably, the law is well settled that failure to comply with the referral requirements of GML §239-m is a jurisdictional defect rendering the enactment invalid.  Failure to comply with this provision can make the county referral process an Achilles heel of zoning amendments in New York. Caruso v. Oyster Bay 172 Misc. 2d 93, 97 [NY Sup Ct 1997], affirmed 250 AD2d 639 [2d Dept. 1997]. See generally, Favre v. Town of Highlands 185 AD 3.d 681 [2d Dept. 2020].

Finally, where the legal challenge seeks to declare a legislative action, like a zoning code amendment, invalid, the six-year statute of limitations is applicable.  Practitioners are also reminded that a declaratory judgment action, not an Article 78 proceeding, is the proper method to a potential GML §239-m violation.