The Appellate Division held that a 2-2 vote by members of a Zoning Board of Appeals (ZBA) regarding a special permit application, unlike a tie vote for other applications, was not an automatic denial of the special permit application. In Matter of Alper Restaurant, Inc. v. Town of Copake Zoning Board of Appeals, the Court found, due to the fact that approval of a special permit is original as opposed to appellate jurisdiction of a ZBA, the rule that a tie vote constitutes an automatic denial is not applicable in this case.
The applicant had a applied for a special permit to operate a hotel. While the application was pending before the ZBA, a vacancy occurred on the board. When the matter came up for a vote there were only four members, resulting in a 2-2 tie vote on the resolution to approve the special permit. Thereafter, a fifth member was appointed to fill the vacancy and a new vote was taken. The second vote resulted in a 3-2 vote in favor of approving the special permit.
The Petitioner, who owns an adjoining parcel, commenced an Article 78 proceeding challenging the second vote, claiming that the original 2-2 vote was an automatic denial. Petitioner also questioned the vote by the new ZBA member who had not participated in the earlier hearings.
The Court noted that a 2002 amendment to New York Town Law had clarified the scope of an earlier case holding that certain votes by a ZBA, that failed to carry a majority of the members of the ZBA, constituted an automatic denial of an application. The Court cited Town Law §267-a (13) (B) which reads:
“Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the enforcement official within the time allowed by subdivision eight of this section, the appeal is denied. The board may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process as set forth in subdivision twelve of this section.”
In light of the provisions of Town Law, the Court held:
” Supreme Court accurately set forth the 2002 legislative amendments to Town Law § 267-a, aptly observed the impact of those amendments in relation to Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington (97 NY2d 86 ) and correctly determined that a tie vote of a zoning board of appeals only results in a default denial when, among other things, it is exercising its appellate jurisdiction…Inasmuch as it is undisputed that the ZBA was exercising its original jurisdiction here (see Code of the Town of Copake § 232-28 [C]), we agree with Supreme Court that the September 2014 tie vote did not result in a default denial. Petitioners’ additional argument that the ZBA’s bylaws, rather than the Town Law, control here is patently without merit.”
The court went on to also hold that there was ample evidence that the new ZBA member had been adequately informed before participating in the vote on the application.