HomeMy WebLinkAbout2003-08-07 •
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,Tompkins County Ekt
DEPARTMENT OFT PLANNING ' 9
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"ttIthaca,c1a v,� ork 114850
Edward C. Marx, AICP \\ •\, t; ' f Telephone (607) 274-5560
Commissioner of Planning 1/4
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Fax (607) 274-5578
Fax
Memorandum
TO : Planning Board Chairs, Zoning Board Chairs, and Zoning/Code Enforcement Officers
FROM : Heather Filiberto, Senior Planner %\\\.,
DATE : August 7, 2003
RE :
On July 1 , 2003 a new state law took effect that codifies voting requirements for city,
town and village planning boards and zoning boards of appeals as well as county
planning boards and regional planning councils . I have attached for your information an
article from the Department of State explaining the requirements and a copy of the law.
Hope you are having a pleasant summer!
t
Voting Requirements for Zoning Boards of Appeals ,
Planning Boards , County Planning Boards
& Regional Planning Councils
On July 1 , 2003 , a new law took effect that applies to city, town and village planning boards and
zoning boards of appeals, and as county planning boards and regional planning councils. Chapter
662 of the Laws of 2002 establishes special voting requirements, and in the case of zoning boards
of appeals acting in their appellate capacity, it codifies a default denial established by the Court of
Appeals in Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington. '
The provisions of the law are discussed below.
PLANNING BOARDS
The statutes governing the general powers and duties of planning boards are contained in Town Law
§271 , Village Law §7-718 , and General City Law § 27 . A new paragraph was added to these statutes
which specifies the number of members of the planning board which must agree on a motion in order
for the board to take action. The paragraph says,
"Voting requirements. Every motion or resolution of a planning
board shall require for its adoption the affirmative vote of a
majority of all the members of the planning board. Where an
action is the subject of a referral to the county planning agency or
regional planning council the voting provisions of sections two
hundred thirty-nine-m and two hundred thirty-nine-n of the general
municipal law shall apply."
By state statute, a planning board may consist of five (5) or seven (7) members . The number of
members is established by the city council, town board or village board of trustees when the planning
board is established.
When a board member proposes to act on an application, the motion made should not be of the
"either/or" variety, but should be to take a specific action. For example, "I move that the planning
board approve Mr. Smith ' s application for site plan approval." The board members then vote for
or against the motion, or in some cases abstain from voting. Even though a vote has been taken, the
board has not taken "action" unless the motion receives an affirmative vote of a majority of all the
members of the board. That means that on a five-member board, at least three members must vote
in favor of the motion; and on a seven-member board at least four members must vote in favor of
a motion. These numbers, which constitute a majority, stay the same even if board members are
absent, have a conflict of interest, abstain, or if there are vacancies on the board.
If the required number of favorable votes is not obtained, the motion fails and action has not been
taken. The board may then consider other motions. In this example, the motion could be to deny
Mr. Smith ' s application. Alternatively, the board may further discuss the issue and a motion may
be made to approve the application provided certain modifications are made to the application or
certain conditions will be fulfilled.
Planning boards should be especially cognizant of voting requirements when reviewing a subdivision
application, because failure of the board to take action on a preliminary or final plat within the time
prescribed by law enables an applicant to obtain a certificate of approval from the municipal clerk.'
1 97 N .Y. 2d 86 (2001 ) ; www.courts . state.ny. us/ctapps/decisions/ 15lopn. pdf.
2See Town Law § 276 ( 8), Village Law § 7 -728 (8 ), or General City Law § 32 (8) for further details .
Department of State 1 August 2003
s
Some applications the planning board reviews must be referred to the county planning agency for
their review and recommendation.' For a town, village, or city planning board to approve an
application when the county planning agency recommends disapproval, or to approve the application
without making the modifications suggested by the county planning agency, the local planning board
would need a majority plus one vote to override the county. That means that on a five-member
board, at least four members would have to vote in favor of the motion; and on a seven-member
board at least five members would have to vote in favor of the motion.
ZONING BOARD OF APPEALS
The statutes governing the general powers and duties of zoning boards of appeals are contained in
Town Law §267-a, Village Law § 7-712-a , and General City Law § 81 -a. A new paragraph was
added to these statutes which specifies the number of members of the zoning board of appeals which
must agree on a motion in order for the board to take action. The paragraph says,
"Voting requirements . . . [E]very motion or resolution of a
board of appeals shall require for its adoption the affirmative vote
of a majority of all the members of the board of appeals as
fully constituted regardless of vacancies or absences. Where an
• action is the subject of a referral to the county planning agency or
regional planning council the voting provisions of section two
hundred thirty-nine-m of the general municipal law shall apply. "
By state statute, a zoning board of appeals may consist of three (3) or five (5) members. The number
of members is established by the city council, town board or village board of trustees when the
zoning board is established. When a board member proposes to act on the application, the motion
made should not be of the "either/or" variety, but should be to take a specific action. For example,
"I move that the zoning board of appeals deny Mrs. Smith' s application for a use variance. " The
board members then vote for or against the motion, or in some cases abstain from voting. Even
though a vote has been taken, the board has not taken "action" unless the motion receives the
affirmative vote of a majority of all the members of the board. That means that on a three-member
board, at least two members must vote in favor of the motion; and on a five-member board at least
three members must vote in favor of a motion. These numbers, which constitute a majority, stay the
same even if board members are absent, have a conflict of interest, abstain, or if there are vacancies
on the board.
If the required number of votes in favor of the motion is not obtained, the result of the vote will
depend on what type of jurisdiction the zoning board is exercising. zoning board of appeals have
two types of jurisdiction. 'Appellate jurisdiction' of the zoning board of appeals is to hear and decide
appeals of any order, requirement, decision, interpretation, or determination made by an
administrative official [e.g., the building inspector or enforcement officer] charged with enforcement
of ordinances or local laws adopted pursuant to the zoning enabling statutes.' Appellate jurisdiction
includes applications for use and area variances and applications challenging an enforcement
officer' s interpretation or application of the zoning regulations . The non-appellate or ` original
jurisdiction' of zoning board of appeals refers to the jurisdiction of the zoning board of appeals to
hear and decide other types of matters, as delegated by the governing board, such as special use
permits or site plan applications .'
If the board is exercising its ` original jurisdiction, ' the motion fails and action has not been taken.
3See General Municipal Law § 239-m.
4These statutes are contained in Article 16 of the Town Law , Article 7 of the Village Law or Article 5A of
the General City Law .
5See Town Law §267-a (4), Village Law § 7 -712 .a(4), and General City Law § 81 -a(4).
Department of State 2 August 2003
The zoning board of appeals can then discuss the matter further and take another vote.
When the board is exercising its ` appellate jurisdiction, ' different results may occur. If a zoning
board of appeals member makes a motion to grant a use variance, such as "I move we approve Mrs .
Smith' s application for a use variance," and the motion fails to get an affirmative vote of the
majority in favor of the motion, then the application for an appeal is denied. The statutes refer to this
as a ` default denial. ' The new language is,
"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 statute is silent as to what the effect is of a failed motion to deny an appeal (i. e . , a motion to
deny a variance or to uphold an enforcement officer' s decision). There is no default approval in this
situation. Arguably, a failed motion to deny the appeal would simply result in no action. Practically,
if this occurs, the zoning board members should discuss the matter further and make another motion,
possibly to approve the application for an appeal.
Some applications the zoning board of appeals reviews must be referred to the county planning
agency for their review and recommendation.6 For a town, village or city zoning board of appeals
to approve an application when the county planning agency recommends disapproval, or to approve
the application without making the modifications suggested by the county planning agency, the local
zoning board of appeals would need a majority plus one vote to override the county. That means that
on a three-member board, all three members would have to vote in favor of the motion; and on a
five-member board at least four members would have to vote in favor of the motion.
Many zoning boards of appeals have found that the first motion they vote on doesn't always pass,
but it is not necessarily because members want to deny the application. It may be because some of
the members feel they need more information and are not prepared to make a decision, or because
some members feel that stronger conditions need to be placed on an approval. To address these
situations, the new default denial provision in the statutes, which are applicable to the zoning board
of appeals acting in their appellate capacity, state,
"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."
This provision allows the board to take additional votes on the application for an appeal within the
statutory time frame, which requires a board decision within sixty-two (62) days after the close of
the public hearing. Without this new provision a second vote on the appeal would only be allowed
if the board followed the rehearing procedures.'
What remains unclear is how subsequent votes, within the time allowed, will affect Article 78
proceedings. Article 78 proceedings must be commenced within thirty days after the filing of a
decision of the board in the office of the municipal clerk. To preserve his or her right to appeal, an
applicant may arguably need to commence proceedings within 30 days of the time that the decision
6See General Municipal Law § 239-m.
7See Town Law § 267- a ( 12) , Village Law § 7-712-a ( 12 ), and General City Law § 81 -a ( 12) for a discussion
of the number of votes needed in order to rehear an application .
Department of State 3 August 2003
t
on the first failed motion is filed in the office of the municipal clerk, even if the board indicates that
it will reconsider its vote within the 62-day time frame.
COUNTY PLANNING BOARDS
The statutes governing the general powers and duties of county planning boards are contained in
General Municipal Law §239-c . A new paragraph places in statute the number of members of the
county planning board which must agree on a motion in order for the board to take action. The
paragraph says,
"Voting requirements. Every motion or resolution of a county
planning board shall require for its adoption the affirmative vote
of a majority of all the members of the county planning board."
The number of members on the county planning board is established by the county legislative body.
For the board to pass a motion, the motion would need to receive the affirmative vote of a majority
of all the members of the board. That means that on a fifteen-member board, at least eight members
must vote in favor of the motion. These numbers stay the same even if board members are absent,
have a conflict of interest, abstain, or if there are vacancies on the board.
REGIONAL PLANNING COUNCILS
The statutes governing the general powers and duties of regionalplanning councils are contained
in General Municipal Law §239-h. A new paragraph places in statute the number of members of
the regional planning council which must agree on a motion in order for the council to take action.
The paragraph says,
Voting requirements. Every motion or resolution of a regional
planning council shall require for its adoption the affirmative vote
of a majority of all the members of the regional planning council.
The number of members on the regional planning council is established by the collaborating
legislative bodies. For the council to pass a motion, the motion would need to receive the affirmative
vote of a majority of all the members of the council . That means that on a twenty-five-member
council, at least thirteen members must vote in favor of the motion. These numbers stay the same
even if council members are absent, have a conflict of interest, abstain, or if there are vacancies on
the council.
CONCLUSION
It is critical for planning and zoning boards to understand the new voting requirements as the new
rules effect the validity of all board actions. Accordingly, please share this information with your
local board members, as well as with your municipal attorney and enforcement officials.
The text of Chapter 662 of the Laws of 2002 follows.
Posted August 2003
Department of State 4 August 2003
r
l
CHAPTER 662 of the LAWS of 2002
Approved December 3 , 2002
Effective July 1 , 2003
AN ACT to amend the general city law, the town law, the village law and the general municipal
law, in relation to requiring an affirmative vote of a majority of all members of a planning board,
zoning board of appeals, county planning board or regional planning council in order to take
action, and to provide for a default denial by the zoning board of appeals where it fails to pass a
motion overruling a decision of the enforcement officer
The People of the State of New York, represented in Senate and Assembly, do enact as follows :
§ 1 . Section 27 of the general city law is amended by adding a new subdivision 17 to read as
follows :
17. Voting requirements. Every motion or resolution of a planning board shall require for its
adoption the affirmative vote of a majority of all the members of the planning board. Where an
action is the subject of a referral to the county planning agency or regional planning council the
voting provisions of sections two hundred thirty-nine-m and two hundred thirty-nine-n of the
general municipal law shall apply.
§ 2 . Section 271 of the town law is amended by adding a new subdivision 16 to read as follows :
16 . Voting requirements . Every motion or resolution of a planning board shall require for its
adoption the affirmative vote of a majority of all the members of the planning board. Where an
action is the subject of a referral to the county planning agency or regional planning council the
voting provisions of sections two hundred thirty-nine-m and two hundred thirty-nine-n of the
general municipal law shall apply.
§ 3 . Section 7-718 of the village law is amended by adding a new subdivision 17 to read as
follows :
17. Voting requirements. Every motion or resolution of a planning board shall require for its
adoption the affirmative vote of a majority of all the members of the planning board. Where an
action is the subject of a referral to the county planning agency or regional planning council the
voting provisions of sections two hundred thirty-nine-m and two hundred thirty-nine-n of the
general municipal law shall apply.
§ 4. Section 239-c of the general municipal law is amended by adding a new subdivision 5 to
read as follows :
5 . Voting requirements. Every motion or resolution of a county planning board shall require for
its adoption the affirmative vote of a majority of all the members of the county planning board.
§ 5 . Section 239-h of the general municipal law is amended by adding a new subdivision 6 to
read as follows :
6 . Voting requirements. Every motion or resolution of a regional planning council shall require
for its adoption the affirmative vote of a majority of all the members of the regional planning
council .
§ 6. Subdivision 4 of section 81 -a of the general city law, as added by chapter 208 of the laws of
1993 , is amended and a new subdivision 13 is added to read as follows :
4. Hearing appeals . Unless otherwise provided by local law or ordinance, the jurisdiction of the
Department of State 5 August 2003
I
board of appeals shall be appellate only and shall be limited to hearing and deciding appeals from
and reviewing any order, requirement, decision, interpretation, or determination, made by the
administrative official charged with the enforcement of any ordinance or local law adopted
pursuant to this article. . ' • . . : : . • . . I o , . .
' Host d • I • d I • . l , III � • VI lo VII :
et
• • o • , , • _ • I • • • • l I • dtei ' . Such appeal maybe taken by
any person aggrieved, or by an officer, department, board or bureau of the city.
13 . Voting requirements .
(a) Decision of the board. Except as otherwise provided in subdivision twelve of this section,
every motion or resolution of a board of appeals shall require for its adoption the affirmative vote
of a majority of all the members of the board of appeals as fully constituted regardless of
vacancies or absences. Where an action is the subject of a referral to the county planning agency
or regional planning council the voting provisions of section two hundred thirty-nine-m of the
general municipal law shall apply.
(b) Default denial of appeal. Inexercising 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.
§ 7. Subdivision 4 of section 267-a of the town law, as amended by chapter 248 of the laws of
1992, is amended and a new subdivision 13 is added to read as follows :
4. Hearing appeals . Unless otherwise provided by local law or ordinance, the jurisdiction of the
board of appeals shall be appellate only and shall be limited to hearing and deciding appeals from
and reviewing any order, requirement, decision, interpretation, or determination made by the
administrative official charged with the enforcement of any ordinance or local law adopted
pursuant to this article. The =culling vote of a- majIIrit9-vf the . . s
ad1111111st1ativcofficial, 01 to grant a use valialricvl ana Valiance: Such appeal may be taken by
any person aggrieved, or by an officer, department, board or bureau of the town.
13 . Voting requirements.
(a) Decision of the board. Except as otherwise provided in subdivision twelve of this section,
every motion or resolution of a board of appeals shall require for its adoption the affirmative vote
of a majority of all the members of the board of appeals as fully constituted regardless of
vacancies or absences. Where an action is the subject of a referral to the county planning agency
or regional planning council the voting provisions of section two hundred thirty-nine-m of the
general municipal law shall apply.
(b) 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.
§ 8 . Subdivision 4 of section 7-712-a of the village law, as amended by chapter 248 of the laws
of 1992, is amended and a new subdivision 13 is added to read as follows :
4. Hearing appeals . Unless otherwise provided by local law, the jurisdiction of the board of
appeals shall be appellate only and shall be limited to hearing and deciding appeals from and
reviewing any order, requirement, decision, interpretation, or determination made by the
Department of State 6 August 2003
e
administrative official charged with the enforcement of any local law adopted pursuant to this
article. 1 . - . • . . : . ' . - • . . . , . . . : . . : . . - : - - : .
ufficial, La to giant a as • i � Such appeal may be taken by any person
aggrieved, or by an officer, department, board or bureau of the village .
13 . Voting requirements .
(a) Decision of the board. Except as otherwise provided in subdivision twelve of this section,
every motion or resolution of a board of appeals shall require for its adoption the affirmative vote
of a majority of all the members of the board of appeals as fully constituted regardless of
vacancies or absences. Where an action is the subject of a referral to the county planning agency
or regional planning council the voting provisions of section two hundred thirty-nine-m of the
general municipal law shall apply.
(b) 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.
§ 9. This act shall take effect on the first day of July next succeeding the date on which it shall
have become a law.
Department of State 7 August 2003
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DEPARTMEN
TPOF` PLANNING F 7
11 EastCourfi
1Stre t
Ithaca, M 'I: rk./14850
Edward C. Marx, AICP 4' Telephone (607) 274-5560
Commissioner of Planning Fax (607) 274-5578
Memorandum
TO : Planning Board Chairs, Zoning Board Chairs, and Zoning/Code Enforcement Officers
FROM : Heather Filiberto, Senior Planner %\\N,
DATE : August 7, 2003
RE :
On July 1 , 2003 a new state law took effect that codifies voting requirements for city,
town and village planning boards and zoning boards of appeals as well as county
planning boards and regional planning councils . I have attached for your information an
article from the Department of State explaining the requirements and a copy of the law .
• Hope you are having a pleasant summer !
•
i
Voting Requirements for Zoning Boards of Appeals ,
Planning Boards , County Planning Boards
& Regional Planning Councils
On July 1 , 2003 , a new law took effect that applies to city, town and village planning boards and
zoning boards of appeals, and as county planning boards and regional planning councils. Chapter
662 of the Laws of 2002 establishes special voting requirements, and in the case of zoning boards
of appeals acting in their appellate capacity, it codifies a default denial established by the Court of
Appeals in Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington. '
The provisions of the law are discussed below.
PLANNING BOARDS
The statutes governing the general powers and duties of planning boards are contained in Town Law
§271 , Village Law § 7-718, and General City Law §27 . A new paragraph was added to these statutes
which specifies the number of members of the planning board which must agree on a motion in order
for the board to take action. The paragraph says,
"Voting requirements. Every motion or resolution of a planning
board shall require for its adoption the affirmative vote of a
majority of all the members of the planning board. Where an
action is the subject of a referral to the county planning agency or
regional planning council the voting provisions of sections two
hundred thirty-nine-m and two hundred thirty-nine-n of the general
municipal law shall apply."
• By state statute, a planning board may consist of five (5) or seven (7) members . The number of
members is established by the city council, town board or village board of trustees when the planning
board is established.
When a board member proposes to act on an application, the motion made should not be of the
"either/or" variety, but should be to take a specific action. For example, "I move that the planning
board approve Mr. Smith' s application for site plan approval." The board members then vote for
or against the motion, or in some cases abstain from voting. Even though a vote has been taken, the
board has not taken "action" unless the motion receives an affirmative vote of a majority of all the
members of the board. That means that on a five-member board, at least three members must vote
in favor of the motion; and on a seven-member board at least four members must vote in favor of
a motion. These numbers, which constitute a majority, stay the same even if board members are
absent, have a conflict of interest, abstain, or if there are vacancies on the board.
If the required number of favorable votes is not obtained, the motion fails and action has not been
taken. The board may then consider other motions. In this example, the motion could be to deny
Mr. Smith' s application. Alternatively, the board may further discuss the issue and a motion may
be made to approve the application provided certain modifications are made to the application or
certain conditions will be fulfilled.
Planning boards should be especially cognizant of voting requirements when reviewing a subdivision
application, because failure of the board to take action on a preliminary or final plat within the time
prescribed by law enables an applicant to obtain a certificate of approval from the municipal clerk.'
• ' 97 N .Y.2d 86 (2001 ) ; www.courts. state .ny. us/etapps/decisions/151opn.pdf.
2See Town Law § 276 (8), Village Law § 7 -728 (8 ), or General City Law § 32 (8) for further details.
Department of State 1 August 2003
Some applications the planning board reviews must be referred to the county planning agency for
their review and recommendation.' For a town, village, or city planning board to approve an •
application when the county planning agencyrecommends disapproval, or to approve the application
without making the modificationssuggested by the county planning agency, the local planning board
would need a majority plus one vote to override the county. That means that on a five-member
board, at least four members would have to vote in favor of the motion; and on a seven-member
board at least five members would have to vote in favor of the motion.
ZONING BOARD OF APPEALS
The statutes governing the general powers and duties of zoning boards of appeals are contained in
Town Law §267-a, Village Law § 7-712-a , and General City Law § 81 -a. A new paragraph was
added to these statutes which specifies the number of members of the zoning board of appeals which
must agree on a motion in order for the board to take action. The paragraph says,
"Voting requirements . . . [E]very motion or resolution of a
board of appeals shall require for its adoption the affirmative vote
of a majority of all the members of the board of appeals as
fully constituted regardless of vacancies or absences. Where an
• action is the subject of a referral to the county planning agency or
regional planning council the voting provisions of section two
hundred thirty-nine-m of the general municipal law shall apply. "
By state statute, a zoning board of appeals may consist of three (3) or five (5) members. The number
of members is established by the city council, town board or village board of trustees when the
zoning board is established. When a board member proposes to act on the application, the motion
made should not be of the "either/or" variety, but should be to take a specific action. For example,
"I move that the zoning board of appeals deny Mrs. Smith' s application for a use variance." The •
board members then vote for or against the motion, or in some cases abstain from voting. Even
though a vote has been taken, the board has not taken "action" unless the motion receives the
affirmative vote of a majority of all the members of the board. That means that on a three-member
board, at least two members must vote in favor of the motion; and on a five-member board at least
three members must vote in favor of a motion. These numbers, which constitute a majority, stay the
same even if board members are absent, have a conflict of interest, abstain, or if there are vacancies
on the board.
If the required number of votes in favor of the motion is not obtained, the result of the vote will
depend on what type of jurisdiction the zoning board is exercising. zoning board of appeals have
two types of jurisdiction. 'Appellate jurisdiction' of the zoning board of appeals is to hear and decide
appeals of any order, requirement, decision, interpretation, or determination made by an
administrative official [e.g. , the building inspector or enforcement officer] charged with enforcement
of ordinances or local laws adopted pursuant to the zoning enabling statutes.' Appellate jurisdiction
includes applications for use and area variances and applications challenging an enforcement
officer' s interpretation or application of the zoning regulations. The non-appellate or ` original
jurisdiction ' of zoning board of appeals refers to the jurisdiction of the zoning board of appeals to
hear and decide other types of matters, as delegated by the governing board, such as special use
permits or site plan applications.'
If the board is exercising its ` original jurisdiction, ' the motion fails and action has not been taken.
3See General Municipal Law § 239-m.
4These statutes are contained in Article 16 of the Town Law, Article 7 of the Village Law or Article SA of
the General City Law . •
5See Town Law § 267-a (4), Village Law § 7 -712 .a(4), and General City Law § 81 -a(4) .
Department of State 2 August 2003
i
• The zoning board of appeals can then discuss the matter further and take another vote.
When the board is exercising its ` appellate jurisdiction, ' different results may occur. If a zoning
board of appeals member makes a motion to grant a use variance, such as "I move we approve Mrs.
Smith' s application for a use variance," and the motion fails to get an affirmative vote of the
majority in favor of the motion, then the application for an appeal is denied. The statutes refer to this
as a ` default denial. ' The new language is,
"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 statute is silent as to what the effect is of a failed motion to deny an appeal (i .e. , a motion to
deny a variance or to uphold an enforcement officer' s decision) . There is no default approval in this
situation. Arguably, a failed motion to deny the appeal would simply result in no action. Practically,
if this occurs, the zoning board members should discuss the matter further and make another motion,
possibly to approve the application for an appeal.
Some applications the zoning board of appeals reviews must be referred to the county planning
agency for their review and recommendation.' For a town, village or city zoning board of appeals
to approve an application when the county planning agency recommends disapproval, or to approve
the application without making the modifications suggested by the county planning agency, the local
zoning board of appeals would need a majority plus one vote to override the county. That means that
on a three-member board, all three members would have to vote in favor of the motion; and on a
• five-member board at least four members would have to vote in favor of the motion.
Many zoning boards of appeals have found that the first motion they vote on doesn't always pass,
but it is not necessarily because members want to deny the application. It may be because some of
the members feel they need more information and are not prepared to make a decision, or because
some members feel that stronger conditions need to be placed on an approval. To address these
situations, the new default denial provision in the statutes, which are applicable to the zoning board
of appeals acting in their appellate capacity, state,
"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."
This provision allows the board to take additional votes on the application for an appeal within the
statutory time frame, which requires a board decision within sixty-two (62) days after the close of
the public hearing. Without this new provision a second vote on the appeal would only be allowed
if the board followed the rehearing procedures?
What remains unclear is how subsequent votes, within the time allowed, will affect Article 78
proceedings. Article 78 proceedings must be commenced within thirty days after the filing of a
decision of the board in the office of the municipal clerk. To preserve his or her right to appeal, an
applicant may arguably need to commence proceedings within 30 days of the time that the decision
6See General Municipal Law § 239-m.
• 7See Town Law § 267- a ( 12 ) , Village Law § 7-712-a ( 12), and General City Law § 81 -a ( 12 ) for a discussion
of the number of votes needed in order to rehear an application.
Department of State 3 August 2003
r
on the first failed motion is filed in the office of the municipal clerk, even if the board indicates that
it will reconsider its vote within the 62-day time frame. •
COUNTY PLANNING BOARDS
The statutes governing the general powers and duties of county planning boards are contained in
General Municipal Law §239-c . A new paragraph places in statute the number of members of the
county planning board which must agree on a motion in order for the board to take action. The
paragraph says,
"Voting requirements. Every motion or resolution of a county
planning board shall require for its adoption the affirmative vote
of a majority of all the members of the county planning board."
The number of members on the county planning board is established by the county legislative body.
For the board to pass a motion, the motion would need to receive the affirmative vote of a majority
of all the members of the board. That means that on a fifteen-member board, at least eight members
must vote in favor of the motion. These numbers stay the same even if board members are absent,
have a conflict of interest, abstain, or if there are vacancies on the board.
REGIONAL PLANNING COUNCILS
The statutes governing the general powers and duties of regional planning councils are contained
in General Municipal Law §239-h. A new paragraph places in statute the number of members of
the regional planning council which must agree on a motion in order for the council to take action.
The paragraph says,
Voting requirements. Every motion or resolution of a regional
planning council shall require for its adoption the affirmative vote •
of a majority of all the members of the regional planning council.
The number of members on the regional planning council is established by the collaborating
legislative bodies. For the council to pass a motion, the motion would need to receive the affirmative
vote of a majority of all the members of the council. That means that on a twenty-five-member
council, at least thirteen members must vote in favor of the motion. These numbers stay the same
even if council members are absent, have a conflict of interest, abstain, or if there are vacancies on
the council.
CONCLUSION
It is critical for planning and zoning boards to understand the new voting requirements as the new
rules effect the validity of all board actions. Accordingly, please share this information with your
local board members, as well as with your municipal attorney and enforcement officials.
The text of Chapter 662 of the Laws of 2002 follows.
Posted August 2003
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Department of State 4 August 2003
t
CHAPTER 662 of the LAWS of 2002
• Approved December 3 , 2002
Effective July 1 , 2003
AN ACT to amend the general city law, the town law, the village law and the general municipal
law, in relation to requiring an affirmative vote of a majority of all members of a planning board,
zoning board of appeals, county planning board or regional planning council in order to take
action, and to provide for a default denial by the zoning board of appeals where it fails to pass a
motion overruling a decision of the enforcement officer
The People of the State of New York, represented in Senate and Assembly, do enact as follows :
§ 1 . Section 27 of the general city law is amended by adding a new subdivision 17 to read as
follows :
17. Voting requirements. Every motion or resolution of a planning board shall require for its
adoption the affirmative vote of a majority of all the members of the planning board. Where an
action is the subject of a referral to the county planning agency or regional planning council the
voting provisions of sections two hundred thirty-nine-m and two hundred thirty-nine-n of the
general municipal law shall apply.
§ 2 . Section 271 of the town law is amended by adding a new subdivision 16 to read as follows:
16. Voting requirements. Every motion or resolution of a planning board shall require for its
adoption the affirmative vote of a majority of all the members of the planning board. Where an
action is the subject of a referral to the county planning agency or regional planning council the
• voting provisions of sections two hundred thirty-nine-m and two hundred thirty-nine-n of the
general municipal law shall apply.
§ 3 . Section 7-718 of the village law is amended by adding a new subdivision 17 to read as
follows :
17 . Voting requirements . Every motion or resolution of a planning board shall require for its
adoption the affirmative vote of a majority of all the members of the planning board. Where an
action is the subject of a referral to the county planning agency or regional planning council the
voting provisions of sections two hundred thirty-nine-m and two hundred thirty-nine-n of the
general municipal law shall apply.
§ 4. Section 239-c of the general municipal law is amended by adding a new subdivision 5 to
read as follows :
5 . Voting requirements. Every motion or resolution of a county planning board shall require for
its adoption the affirmative vote of a majority of all the members of the county planning board.
§ 5 . Section 239-h of the general municipal law is amended by adding a new subdivision 6 to
read as follows :
6 . Voting requirements. Every motion or resolution of a regional planning council shall require
for its adoption the affirmative vote of a majority of all the members of the regional planning
council .
§ 6. Subdivision 4 of section 81 -a of the general city law, as added by chapter 208 of the laws of
• 1993 , is amended and a new subdivision 13 is added to read as follows :
4. Hearing appeals . Unless otherwise provided by local law or ordinance, the jurisdiction of the
Department of State 5 August 2003
I
board of appeals shall be appellate only and shall be limited to hearing and deciding appeals from
and reviewing any order, requirement, decision, interpretation, or determination, made by the •
administrative official charged with the enforcement of any ordinance or local law adopted
pursuant to this article. s . . _ • . . : : • . • . , . , 1 Ifo , , dilly/
administrative official, or tu grant a us . variant or area variance,. Such appeal may be taken by
any person aggrieved, or by an officer, department, board or bureau of the city.
13 . Voting requirements.
(a) Decision of the board. Except as otherwise provided in subdivision twelve of this section,
every motion or resolution of a board of appeals shall require for its adoption the affirmative vote
of a majority of all the members of the board of appeals as fully constituted regardless of
vacancies or absences. Where an action is the subject of a referral to the county planning agency
or regional planning council the voting provisions of section two hundred thirty-nine-m of the
general municipal law shall apply.
(b) Default denial of appeal. Inexercising 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.
§ 7. Subdivision 4 of section 267-a of the town law, as amended by chapter 248 of the laws of
1992, is amended and a new subdivision 13 is added to read as follows :
4. Hearing appeals . Unless otherwise provided by local law or ordinance, the jurisdiction of the
board of appeals shall be appellate only and shall be limited to hearing and deciding appeals from
and reviewing any order, requirement, decision, interpretation, or determination made by the •
administrative official charged with the enforcement of any ordinance or local law adopted
pursuant to this article. 1 . • ' • . . : : • . • • . , . . 1 . . d , . , d Biro
d I d • I d • I . I VI I I V 1 . 1 1 • •
administrative official, or to giant a use variance or arca varianct. Such appeal may be taken by
any person aggrieved, or by an officer, department, board or bureau of the town.
13 . Voting requirements.
(a) Decision of the board. Except as otherwise provided in subdivision twelve of this section,
every motion or resolution of a board of appeals shall require for its adoption the affirmative vote
of a majority of all the members of the board of appeals as fully constituted regardless of
vacancies or absences. Where an action is the subject of a referral to the county planning agency
or regional planning council the voting provisions of section two hundred thirty-nine-m of the
general municipal law shall apply.
(b) 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.
§ 8 . Subdivision 4 of section 7-712-a of the village law, as amended by chapter 248 of the laws
of 1992, is amended and a new subdivision 13 is added to read as follows :
4. Hearing appeals . Unless otherwise provided by local law, the jurisdiction of the board of •
appeals shall be appellate only and shall be limited to hearing and deciding appeals from and
reviewing any order, requirement, decision, interpretation, or determination made by the
Department of State 6 August 2003
administrative official charged with the enforcement of any local law adopted pursuant to this
• •
article. "
.� • '
•
. • . . 111 , . . 1 I • • II VII . t We • I U . I III ;
vfli�ial, of to grant a use valiance or alca variancc . Such appeal may be taken by any person
aggrieved, or by an officer, department, board or bureau of the village.
13 . Voting requirements .
(a) Decision of the board. Except as otherwise provided in subdivision twelve of this section,
every motion or resolution of a board of appeals shall require for its adoption the affirmative vote
of a majority of all the members of the board of appeals as fully constituted regardless of
vacancies or absences. Where an action is the subject of a referral to the county planning agency
or regional planning council the voting provisions of section two hundred thirty-nine-m of the
general municipal law shall apply.
(b) 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.
§ 9. This act shall take effect on the first day of July next succeeding the date on which it shall
have become a law.
•
•
Department of State 7 August 2003