Albano v. Town of Islip

Petitioner brought about this Article 78 proceeding to reverse the decision of the Islip Town Engineer and gain a building permit. Petitioner applied to the Town of Islip Board of Appeals in 2006 for an area variance to build a single family dwelling on the premises. In 2007, the Board granted the application with the condition that the applicant could not build until clearing it with the Engineering Department. The Town Engineer expressed concern that construction would cause problems with drainage and flooding and have adverse effects of the environment thus denying the permit application.

Petitioner then commenced this Article 78 in order to annul the Town Engineer’s decision arguing that it was arbitrary, capricious and an abuse of discretion. Petitioner annexed an affidavit from a licensed engineer providing an amended plan with a proposed superior drainage system.

Respondents argue that petitioner failed to state a claim upon which relief is granted, that mandamus is not appropriate, that petitioner’s statute of limitations expired, and that petitioner failed to name a necessary party. The Court agreed with respondents that mandamus relief is not available in this case. In regards to the statute of limitations, the Court found that the proceeding was timely commenced. The Court also disagreed with respondents’ argument that petitioner’s failure to join the Building Division of the Department of Planning and Development as a necessary party should mandate dismissal of action.

Accordingly, the Supreme Court denied respondents’ motion to dismiss the petition based upon nonjoinder of a necessary party.