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A recent decision in a Long Island case by the New York Court of Appeals, Matter of Headriver, LLC v. Town Board of Riverhead, 1 and an even more current Court ruling, in Matter of Emmett v. Town of Edmeston, 2 highlight an important issue that is all too often misunderstood, or overlooked, in land use and zoning disputes: the need to name necessary parties in article 78 proceedings. Complying with this rule can be crucial for a petitioner seeking to overturn a local government’s decision. That is because under well-established law, the failure to join a necessary party within the applicable limitations period can be a fatal defect in an article 78 petition that may mandate dismissal of the proceeding. 3 Where a respondent therefore realizes that a petition has not named all necessary parties, a motion to dismiss very well may be granted. Court of Appeals Decisions The Emmett case arose when petitioners challenged the grant of a variance by the Town of Edmeston Zoning Board of Appeals. Significantly, however, the petitioners failed to join the zoning board. The case reached the Court of Appeals, where the petitioners argued that their petition should not be dismissed. The Court rejected the petitioners’ argument. In its view, the zoning board was a “necessary party” to the proceeding pursuant to CPLR �1001, which defines necessary parties as “[p]ersons who ought to be parties if complete relief is to be accorded between parties to the action or who might be inequitably affected by a judgment in the action.” Citing CPLR �1003, which allows for the dismissal of an action for the nonjoinder of a necessary party, the Court concluded that the petitioners’ failure to name the zoning board was a fatal defect that doomed their petition. Although, at least in hindsight, there seems little doubt that the zoning board was a necessary party in Emmett, whether a party is “necessary” may not always be so clear. In the Court’s recent Long Island case, Headriver, LLC, was the contract vendee of a parcel of real property located in the Town of Riverhead on eastern Long Island, on which Headriver intended to build and operate a Lowe’s Home Center. Headriver applied to the town board to obtain a special use permit. The board referred the application to the Suffolk County Planning Commission for its recommendation. After reviewing the application, the commission recommended that the special use permit be denied. Following a public hearing, the town board voted 3-2 to grant the special use permit. However, as provided by General Municipal Law �239-m, only a super-majority vote by the board could override the commission’s recommendation. Because the super-majority requirement was not satisfied, the permit was denied. Headriver then brought an article 78 proceeding claiming that the board’s determination was arbitrary and capricious because the record established that Headriver met every requirement of the town code. The board moved to dismiss the petition for failure to include the commission as a necessary party. Supreme Court, Suffolk County, denied the motion; that decision was affirmed by a divided Appellate Division, Second Department, which concluded that because the commission’s decision could be overridden by a super-majority vote, the commission was not a necessary party. The Court of Appeals noted that the town board could have voted to override the commission’s determination and approve the proposed action, but that it did not do so. It then affirmed the Appellate Division’s decision that the commission’s decision was “merely advisory” and that the board therefore was the proper party in the proceeding. Accordingly, because the commission was not a necessary party, the Court concluded that the board’s motion to dismiss the petition had been properly denied. General Rule Whether or not it is difficult to decide whether a particular entity or individual should be named, it is clear that naming all necessary parties is crucial. Courts have repeatedly held that a petition brought under article 78 to challenge a local government’s determination must name, as respondents, not only the board that rendered the determination, but also any person or entity whose interests might be adversely affected by the judgment. 4 With respect to necessary parties, the general rule is that “[a] party whose interest may be inequitably or adversely affected by a potential judgment must be made a party in a CPLR article 78 proceeding.” 5 It should not be overlooked that the owner of the property that is the subject of the determination “falls squarely within the definition of a necessary party.” 6 Indeed, the Appellate Division, Third Department, has stated that it is “unmistakably clear” that the owner of the real property to whom a challenged use variance was issued might well have been inequitably and adversely affected if the relief requested in the petition had been granted and, thus, was a necessary party. 7 Remedies Numerous court decisions also make clear that the failure to join the property owner — or other necessary party — prior to the expiration of the applicable statute of limitations is a fatal defect in the petition that mandates dismissal of the proceeding. For instance, in Long Island Pine Barrens Society, Inc. v. Town of Islip, 8the Appellate Division, Second Department, concluded that Suffolk County Supreme Court had “properly dismissed the proceeding for failure to timely join the landowner as a necessary party.” The same court held, in Saunders v. Graboski, 9 that “[s]ince the petitioners failed to join a necessary party, Payton Lane Properties Inc. [the land owner], the Supreme Court properly dismissed the proceeding.” On occasion, a court may decide that a remedy other than dismissal is warranted, particularly if the unnamed necessary party voluntarily appears or participates in the proceeding. For example, in Greco v. Curran, 10 the petitioner commenced two article 78 proceedings with respect to a permit issued by an official of the Village of Freeport. The first proceeding named the members of the board of zoning appeals and the village’s superintendent of buildings as respondents. The second proceeding named the individual property owner who secured the permit as a respondent. The petitioner then moved to consolidate the proceedings, which the court granted. The respondents cross-moved to dismiss the petitions, arguing that the petitioner’s failure in the first proceeding to join the property owner, the village board and the village planning board constituted a fatal error that warranted dismissal of that petition. Likewise, the respondents argued that the failure to join the village, the superintendent, and the zoning and planning boards in the second proceeding rendered that application fatally defective. The court first found that neither the village nor the village’s planning board were necessary parties to these proceedings. As the court explained, a municipality is only a necessary party if the constitutionality or validity of its zoning code is under attack, which was not the situation in this case. The court then observed that although the respondents were correct that each petition failed to join all necessary parties, they were “incorrect in their assertion that the oversight is necessarily fatal.” In this case, the court continued, all necessary parties were on notice of the petitions before the statute of limitations had expired, “and the separate petitions ensured that all interested parties would participate in the proceedings.” Then, finding it significant that no interested party was prejudiced by the petitioner’s failure to include all of the respondents in the same proceeding, the court ruled that consolidation of the two petitions was appropriate “to cure the joinder defect and provide all interested parties with the opportunity to be heard on the merits.” In another case, 11 a petitioner filed an article 78 proceeding in an effort to annul a mining permit issued to Preble Aggregate, Inc., by the commissioner of environmental conservation; Preble, however, was not made a party to the proceeding. Preble thereafter appeared and moved to dismiss the petition for failure to join a necessary party, or, alternatively, for permission to intervene. Preble argued that it was a necessary party as it would be inequitably affected if the petition were granted and its mining permit annulled. The commissioner did not join in Preble’s motion to dismiss, but indicated his consent for intervention. The trial court dismissed the petition, finding that Preble was a necessary party and should have been joined as a respondent in the proceeding pursuant to CPLR �1001. The dismissal effectively ended the matter even though it was a dismissal without prejudice because the applicable statute of limitations had expired. The petitioner appealed. The Appellate Division reversed. It found that Supreme Court should have joined Preble as a necessary party and then addressed the petition on the merits. According to the Appellate Division, the “significant factor” that led it to conclude that joinder was the appropriate remedy was Preble’s “voluntary participation in this matter.” As the Third Department pointed out, Preble had voluntarily participated in the proceeding by filing its motion seeking dismissal or intervention and “thereby demonstrated sufficient notice such that joinder was the appropriate remedy.” A court may also allow a necessary party to be joined to a proceeding after the applicable statute of limitations has expired if the petitioner can demonstrate that the “relation back” doctrine applies. 12 Use of the relation back doctrine requires a “unity of interest” between the named and unnamed parties. Parties are deemed to be united in interest if their respective interests in the subject matter are such that “they stand or fall together and that judgment against one will similarly affect the other.” 13 Although the relation back doctrine may be used to avoid dismissal of a proceeding upon the proper showing, joining a necessary party under these circumstances is generally not favored by the courts. 14 Conclusion The decisions by New York courts — including the recent decisions by the Court of Appeals — make clear that an article 78 proceeding may be dismissed if one or more necessary parties is not named as a party to the proceeding prior to the expiration of the applicable limitations period. It is equally clear, however, that this defect can be waived if the necessary party voluntarily appears or otherwise participates in the proceeding. In practice, these rules require that petitioners who seek to challenge a local government’s determination carefully analyze the interests of all parties involved prior to commencing an article 78 proceeding. By the same token, unnamed necessary parties who become aware of the proceeding typically should refrain from submitting any papers to the court or otherwise participating in the litigation, but may wish to ask their counsel to discuss the pleading defect with counsel for the named respondents to ensure that the issue is raised. Anthony S. Guardino is a partner with Farrell Fritz and is resident in the firm’s Melville office. Endnotes: 1. __ N.Y.3d __, 2004 N.Y. Lexis 927 (May 4, 2004). 2. __ N.Y.3d __, 2004 N.Y. Lexis 1383 (June 8, 2004). 3. See, e.g., Long Island Pine Barrens Society, Inc. v. Town of Islip, 286 A.D.2d 683 (2d Dept. 2001). 4. See, e.g., Ferrugia v. Zoning Board of Appeals of the Town of Warwick, 5 A.D.3d 682 (2d Dept. 2004); C.A. Karmel v. White Plains Common Council, 284 A.D.2d 464 (2d Dept. 2001); Saunders v. Graboski, 282 A.D.2d 610 (2d Dept. 2001); Artrip v. Inc. Village of Piermont, 267 A.D.2d 457 (2d Dept. 1999). 5. Manupella v. Troy City Zoning Board of Appeals, 272 A.D.2d 761 (3d Dept. 2000); see also, Van Derwerker v. Village of Kinderhook Zoning Board of Appeals, 295 A.D.2d 676 (3d Dept. 2002). 6. Baker v. Town of Roxbury, 220 A.D.2d 961 (3d Dept. 1995). 7. O’Connell v. Zoning Board of Appeals of the Town of New Scotland, 267 A.D.2d 742 (3d Dept. 1999). 8. Supra, note 3. 9. 282 A.D.2d 610 (2d Dept. 2001). 10. n.o.r. (Sup. Ct., Nassau Co., June 19, 2002 (Skelos, J.)). 11. Town of Preble v. Zagata, 250 A.D.2d 912 (3d Dept. 1998). 12. See, CPLR �203(b); see also, Matter of Emmett v. Town of Edmeston, supra, note 2; Shapiro v. Town of Oyster Bay, n.o.r. (Sup. Ct., Nassau Co., July 24, 2002 (Mahon, J.)). 13. See, Ferrugia v. Zoning Board of Appeals of the Town of Warwick, supra, note 4. 14. See e.g., Chalian v. Malone, 307 A.D.2d 619 (3d Dept. 2003).

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