GML §239-m Referral as a Non-Waivable Jurisdictional Prerequisite for Non-Exempt Area Variances: Filing Does Not Trigger Limitations; ZBA Approval Is Null and Void

Introduction

Matter of Johnson v. Zoning Board of Appeals of Village of Brockport (2025 NY Slip Op 04326) is a Fourth Department decision that clarifies and reinforces a critical procedural checkpoint in local land use practice: when General Municipal Law (GML) §239-m applies, a municipal zoning board of appeals may not take final action on a variance application without first referring the matter to the county planning agency—unless a duly executed intermunicipal agreement expressly exempts the specific category of proposed action. Failure to make the referral is a jurisdictional defect that both (a) prevents the 30-day statute of limitations in Village Law §7-712-c(1) from running, and (b) renders the approval “null and void.”

The dispute arose in the Village of Brockport, where Earthborn Materials, LLC operated a landscape and construction materials processing business on property zoned Limited Industrial (LI). The Village Code requires all processing to occur within a completely enclosed building and prohibits permanent outdoor storage of materials and equipment. Earthborn applied for what it—and the Zoning Board of Appeals (ZBA)—treated as an “area variance” from those requirements. The ZBA granted the application with conditions. Neighbors (the petitioners) challenged the approval via a CPLR Article 78 proceeding. The developer moved to dismiss as untimely, arguing the petition was filed more than 30 days after the determination was filed with the Village Clerk.

The core issues presented were: (1) whether the ZBA’s failure to refer the application to the county planning agency under GML §239-m was a jurisdictional defect, and (2) whether a Village–County exemption agreement under §239-m(3)(c) excused referral here. The Supreme Court, Monroe County, dismissed the petition as untimely, but the Appellate Division reversed.

Summary of the Judgment

The Fourth Department unanimously reversed the judgment dismissing the Article 78 petition.
The Court held that GML §239-m referral was required because no applicable exemption in the Village–County §239-m(3)(c) agreement covered Earthborn’s requested relief.
Failure to comply with §239-m is a jurisdictional defect. As a result, the 30-day statute of limitations in Village Law §7-712-c(1) never began to run upon filing with the village clerk.
The ZBA’s approval is “null and void.” The matter is remitted to the ZBA for a new determination on Earthborn’s application following proper procedure.
The Supreme Court erred by recharacterizing the application as a use variance to fit an exemption; the ZBA granted an area variance and applied the area-variance standard, and courts may not recast the administrative action actually taken to avoid referral.

Factual and Procedural Background

Earthborn operates in the Village’s LI District, which aims to foster research-and-development, offices, and compatible light industrial uses in an architecturally harmonious, campus-style setting. The Code imposes operational constraints in the district, including:

All uses and processing equipment must be within a completely enclosed building (Code §58-12[E][2]).
No permanent outdoor storage of materials, supplies, or equipment is permitted (Code §58-12[E][3]).

Earthborn sought an area variance to conduct processing outdoors and to maintain material piles on site. The ZBA evaluated the request under the area-variance criteria, granted it, and imposed conditions. Petitioners commenced an Article 78 proceeding to annul the decision, arguing the ZBA’s failure to refer the application to the county planning agency under GML §239-m rendered the approval jurisdictionally defective and void. Earthborn moved pre-answer to dismiss for untimeliness; the Supreme Court agreed, concluding that either the matter was exempt under a Village–County agreement or that, recharacterized as a use variance, an exemption would apply. The Appellate Division reversed.

Detailed Analysis

Statutory Framework

Village Law §7-712-c(1): An Article 78 challenge to a ZBA decision must be commenced within 30 days “after the filing of a decision of the board in the office of the village clerk.”
GML §239-m(2)–(4): Before taking final action on certain proposed actions—including variances affecting real property within specified geographic triggers—municipal bodies must refer the matter to the county planning agency for recommendation.
GML §239-m(3)(a)(v): “Use and area variances” are among the actions subject to referral when the property or project meets statutory criteria (e.g., proximity to state or county roads, municipal borders, etc.).
GML §239-m(3)(c): A county planning agency may enter an agreement with a municipality to designate certain proposed actions as of local concern and exempt them from referral. Exemptions must be stated in the agreement.

Precedents Cited and Their Influence

The Fourth Department grounded its decision in established doctrine that noncompliance with §239-m is a jurisdictional defect that voids the municipal action and tolls the limitations period:

Matter of Fichera v New York State Dept. of Envtl. Conservation, 159 AD3d 1493 (4th Dept 2018): The Court reaffirmed that where there is a jurisdictional defect, the statute of limitations does not begin upon filing of the defective decision. Here, as in Fichera, the absence of a mandated referral rendered the action void and the limitations period untriggered.
Matter of Coalition for Cobbs Hill v City of Rochester, 194 AD3d 1428 (4th Dept 2021): Explicitly notes that failure to comply with §239-m is a jurisdictional defect rendering the action invalid, reinforcing the nullity doctrine applied here.
Matter of Ferrari v Town of Penfield Planning Bd., 181 AD2d 149 (4th Dept 1992): Earlier Fourth Department authority recognizing §239-m’s referral requirement and its consequences on municipal action, supporting the remedy of annulment.
Matter of Sullivan v Dunn, 298 AD2d 974 (4th Dept 2002): Cited for the principle that jurisdictional defects prevent limitations periods from running upon filing, further validating petitioners’ timeliness.
Matter of Crowell v Zoning Bd. of Appeals of the Town of Queensbury, 151 AD3d 1247 (3d Dept 2017): Recognizes that courts ascertain the administrative decision actually made to determine the appropriate limitations period; the Supreme Court’s reliance on Crowell to recharacterize the relief was misplaced. The Appellate Division emphasized that Crowell does not authorize courts to recast the nature of the decision the agency actually made in order to sidestep statutory prerequisites or to change the applicable review framework.
Matter of Rizzo v Verizon CCC LLC, 31 Misc 3d 1206(A), 2011 NY Slip Op 50505(U) (Sup Ct, Niagara County 2011): Trial-level decision discussed by contrast; the Fourth Department clarified that the Village–County agreement here did not sweep broadly enough to exempt the Earthborn variance, distinguishing any broader readings elsewhere.

Legal Reasoning

Referral was required and not excused by the §239-m(3)(c) agreement.
The record showed no dispute that the ZBA took final action without referral. The dispositive question was whether the Village–County agreement under §239-m(3)(c) exempted Earthborn’s application. The agreement expressly listed categories of “local concern” that need not be referred: setbacks; lot area, coverage, and dimensions; floor area; height and elevation of structures; buffers and landscaping; parking lot size; signs; and fences. The Court held these enumerated exemptions did not include variances to conduct industrial processing outdoors or to allow permanent outdoor storage—operational departures from the LI District’s enclosed-building mandate and storage prohibition.

Because exemption agreements are creatures of statute and operate by listing specific categories, the absence of the requested relief from the agreement’s schedule meant referral remained mandatory.
Court cannot recharacterize the administrative action to fit an exemption.
Supreme Court recast the request as a “use variance” to invoke a separate exemption in the agreement (covering certain “type of use” variances). The Fourth Department rejected that move. Earthborn applied for an area variance; the ZBA evaluated and granted it under the area-variance standard (Village Law §7-712-b[3] for use variance vs §7-712-b[2] for area variance). A court may not retroactively relabel the agency’s action to satisfy an exemption or alter the applicable legal framework. The nature of the decision is fixed by what the agency actually did, and the corresponding statutory criteria and procedural prerequisites follow from that.
Noncompliance is a jurisdictional defect; the action is void and the limitations period is untriggered.
Relying on Fichera, Coalition for Cobbs Hill, and Ferrari, the Court reaffirmed that a failure to refer when §239-m applies deprives the ZBA of jurisdiction to act. The resulting approval is “null and void,” and the 30-day limitations clock in Village Law §7-712-c(1) never starts. Consequently, the petition was timely no matter when filed after the flawed decision.
Remedy: annulment and remittal.
Consistent with prior practice, the Court annulled the ZBA decision and remitted for a new determination following proper procedure—i.e., referral to the county planning agency unless the parties’ agreement exempts the precise category or the agency’s input is otherwise properly obtained in compliance with §239-m.

Impact and Prospective Significance

This decision carries several practical and doctrinal implications for land use practice across New York:

Narrow reading of §239-m(3)(c) exemption schedules: Municipal boards should not assume a global exemption for “area variances.” Exemptions are only those specifically enumerated. Operational or use-intensity variances (e.g., outdoor processing, permanent outdoor storage) may not be covered by standard lists focused on dimensional/site plan elements.
Type of variance is determined by the action taken—not post hoc labels: Boards should accurately classify variance requests and apply the correct statutory criteria. Courts will review what the board actually did; a later attempt to relabel the action to fit an exemption or limitations defense will not be credited.
Procedural missteps have jurisdictional consequences: A non-referred decision is void ab initio. Applicants who proceed without a required referral risk losing approvals months later, with no protection from the 30-day limitations period. Neighbors retain the ability to challenge beyond 30 days when a jurisdictional defect exists.
County planning agencies and municipalities should revisit their agreements: If local practice intends to treat certain operational variances as matters of local concern, exemption schedules must expressly say so. Absent specificity, referral remains required.
Administrative records should document referral compliance: Minutes, staff reports, and decision documents should show either the completed referral and agency response (or default after the statutory review period), or the precise exemption provision relied upon, with fit explained.
Remand pathway: The remedy is not to deny the application outright but to redo the process correctly. Applicants may still obtain approval after county review; however, the county’s input can materially affect conditions, mitigation measures, or outcomes.

Complex Concepts Simplified

Area variance vs. use variance: An area variance relaxes dimensional or physical requirements (setbacks, lot coverage, height, etc.). A use variance allows a land use otherwise prohibited in the zoning district, requiring proof of “unnecessary hardship” (e.g., no reasonable return, hardship unique to property, no alterative use, no community alteration of essential character). Here, the board treated relief from “enclosed building” and “no outdoor storage” provisions as an area variance; the Court accepted that characterization because it is the decision the board actually made and evaluated.
GML §239-m referral: A mechanism to ensure intergovernmental coordination on proposals with potential inter-community or countywide impacts. If applicable and not exempted, the local body must send the proposal to the county planning agency before voting; the agency may recommend approval, modification, or disapproval, often with regional concerns in mind.
§239-m(3)(c) exemption agreements: Counties and municipalities can agree that certain classes of actions are “local concern” and need no referral. These are enumerated lists; anything not listed is not exempt. Typical items include small-scale dimensional variances, minor sign changes, or fence height adjustments—not operational changes with broader impacts unless expressly specified.
Jurisdictional defect: A fundamental procedural failure that deprives the agency of authority to act. Jurisdictional defects cannot be waived; they invalidate the action and toll statutes of limitation that otherwise run from filing.
Null and void: The legal status of an action taken without jurisdiction. The decision is treated as if it never occurred, and the matter must be reheard in compliance with the applicable procedures.
Limitations period in zoning Article 78 challenges: In villages, a petitioner has 30 days from the filing of the ZBA decision with the village clerk to commence suit. However, this clock does not run if the decision is jurisdictionally defective; referral defects fall into that category.

Applied Takeaways for Stakeholders

For ZBAs and municipal counsel: Create a §239-m compliance checklist for every variance:
- Identify whether the action falls within §239-m’s geographic triggers.
- Check for an applicable, on-point exemption in the municipal–county agreement; document the exact provision and rationale.
- If not exempt, refer the proposal before any final vote; include county response in the record or note the lapse of the review period.
- Classify the variance correctly (area vs use) and apply the appropriate statutory criteria; ensure the decision recites those standards.
For applicants: Confirm early whether §239-m applies and whether an exemption covers your precise relief. Press for timely referral to avoid later invalidation. Be cautious about accepting approvals issued without clear referral compliance; they are vulnerable.
For neighbors and community groups: Review the administrative record for §239-m compliance. A missed referral provides a powerful, often dispositive procedural basis for challenge, and the 30-day limitations bar may not apply.
For county planning agencies: Periodically review exemption agreements with municipalities to ensure they reflect contemporary planning priorities. If operational variances have regional implications, retain review authority by not exempting them—or, if appropriate, narrow the exemptions’ scope.

Conclusion

Matter of Johnson v. ZBA of the Village of Brockport crystallizes an important procedural rule: a §239-m referral is a non-waivable jurisdictional prerequisite unless a §239-m(3)(c) agreement expressly exempts the specific category of action at issue. The decision offers two additional clarifications: courts will not recharacterize a municipal decision post hoc to squeeze into an exemption, and jurisdictional noncompliance both vitiates the approval and prevents the 30-day statute of limitations from running.

By insisting on a precise fit between the requested relief and any enumerated exemption, the Fourth Department reaffirms §239-m’s role in intergovernmental land use coordination. The ruling prompts municipalities to tighten their referral practices and to ensure that exemption agreements are specific and current, and it cautions applicants against relying on procedurally infirm approvals. In the broader legal context, the case strengthens the jurisprudence that treats §239-m compliance as foundational to the validity of local zoning determinations—a principle that will shape how future variance applications are processed and litigated across New York State.