2 No. 151
In the Matter of Tall Trees Construction Corp.,
Appellant,
v.
Zoning Board of Appeals of the Town of Huntington,
Respondent.
_________________________________________________________________
2001 NY Int. 123
November 19, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Robert J. Flynn, Jr., for appellant.
Thomas A. Abbate, for respondent.
_________________________________________________________________
WESLEY, J.:
This case calls into question the effect of repeated tie votes
rendered by the Town of Huntington Zoning Board of Appeals on
petitioner's application for area variances. We conclude that when a
quorum of the Board is present and participates in a vote on an
application, a vote of less than a majority of the Board is deemed a
denial.
In 1996, petitioner Tall Trees Construction Corporation applied to the
seven-member Zoning Board of Appeals for the Town of Huntington for
minor area variances, seeking to divide a 1.94 acre parcel of land
into two lots, one of which would be a flagstaff lot,(1) and to
construct a home on each. The property abuts the lot of Lawrence
Lamanna, the vice-chair of the Board. Following a hearing on the
application, the Board issued a "NO ACTION" decision when petitioner
failed to obtain a majority vote in favor of the application: two
members voted to deny the application; two voted to grant the
application; two were absent; and Lamanna abstained. The Board ignored
petitioner's subsequent letter requesting another vote.
Petitioner then commenced a CPLR article 78 proceeding seeking to
annul the Board's decision and to direct the Board to grant the
variances. Supreme Court, relying on Matter of Walt Whitman Game Room,
Inc. v Zoning Bd. of Appeals of Town of Huntington (54 2 764, lv
denied , 40 NY2d 809), held that the Board's tie determination was
a nonaction and remitted the matter to the Board for another vote on
SNIPPETS:
In the Matter of Tall Trees Construction Corp., Appellant, v. Zoning Board of Appeals of the
This case calls into question the effect of repeated tie votes rendered by the Town of
We conclude that when a quorum of the Board is present and participates in a vote on an
In 1996, petitioner Tall Trees Construction Corporation applied to the seven-member Zoning
Following a hearing on the application, the Board issued a "NO ACTION" decision when
The Board ignored petitioner's subsequent letter requesting another vote.
The Board, however, failed to conduct a new vote, and after repeated requests for compliance,
it filed a "NON-ACTION" determination based on a vote identical to that rendered in the
Supreme Court granted the petition, annulled the Board's second decision and granted the
Although expressing concern with some of the Board's actions and directives in this case, the
and now reverse.
Petitioner urges that when a quorum of the Board is present and participates in the
Zoning Boards of Appeal were created "to interpret, to perfect, and to insure the validity of
General Construction Law § 41 and Town Law § 267-a govern the procedures of a Town Zoning
96 NY2d 475, 479;
We have also recognized that statutes relating to the same subject matter must be construed
Applying these principles here, a plain and harmonious reading of the related statutes leads
of the Town of Perinton, 222 AD2d 1069, 1069; see also, Matter of Zagoreos v Conklin, 109
Here, a review of the record reveals undisputed testimony from a real estate expert that this
impact on the neighborhood or real property values.
An application for accidental disability retirement benefits for police officers and
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