Filing of a land use decision with the municipal clerk's office beyond the 5-day timeframe

New York State law provides that a copy of any land use decision made by a reviewing board, in most cases the planning board or zoning board of appeals, must be filed with the office of the municipal clerk within five business days after the date such decision is rendered. This rule universally applies to all cities, towns and villages and applies not only with respect to site plan decisions, but also with respect to all special use permit, subdivision and variance decisions. Unfortunately for land use applicants, this is one of the most forgotten rules in the approval process and although this requirement may seem inconsequential, it can significantly impact a land use decision since it is the date of filing with the municipal clerk, and not the date that a land use decision is adopted by the reviewing board, which controls commencement of the applicable appeal period for potential challenges to the decision. As such, there are certain procedural steps which all applicants should take in order ensure that any decision made by the reviewing board is filed in a proper and timely manner. Step 1 Obtaining a Written Decision As an initial step, land use applicants should keep in close contact with the reviewing board and its consultants so that the applicant is aware in advance as to when a decision will be made. Applicants should also monitor the form of decision being made so that they can ensure that some type of written decision will be adopted. A written decision is critical not only as proof that a decision was made, but also as a means to set forth the findings made by the reviewing board in support of the decision to create a record in the event an appeal is filed. If possible, the applicant's attorney should assist in the drafting of the decision, or, at the very least, request to see a copy of the decision prior to the meeting at which it will be adopted. Step 2 Filing of the Decision Once the decision has been adopted by the reviewing board, the applicant should immediately inquire as to when filing of the decision with the municipal clerk's office will occur. The applicant should then follow-up with the municipal clerk's office to confirm that the decision was filed in a timely manner. If the decision has not been filed in a timely manner, the applicant should contact both the reviewing board and the municipal clerk's office to find out when filing will occur. Filing beyond the five-day timeframe creates additional risk for the applicant by giving potential challengers to the decision additional time in which to bring an appeal. Therefore, it is in the best interests of land use applicants to do everything in their power to ensure that filing occurs as soon as possible after the decision is rendered. Step 3 Date-Stamping and Record Keeping The final step land use applicant's should take in connection with the filing process is to verify that the decision was date stamped or carries some indicia as to when it was filed and by whom it was received. In most instances, a date stamp bearing the name of the clerk or the clerk's office will suffice. The applicant should request a stamped copy of the decision so that the applicable appeal period, usually 30 days from the date the decision was filed with the municipal clerk's office, can be calculated and as proof that the decision was filed as of a certain date. By following these tips, applicants can avoid undue extension of an applicable appeal period and thereby reduce the risk of a successful challenge. Howard Geneslaw is a director, and Jennifer Porter is an associate, at the law firm of Gibbons P.C., New York, N.Y.