NY Appellate Court Concludes a Unanimous Vote by ZBA Members Was Not Required for a Conditional Use Permit

This post was authored by Olena Botshtyen, Esq.

The petitioner Carl Myers Enterprises, Inc. (“CME”) applied to the Town of Conesus Zoning Board of Appeals (“ZBA”) for a conditional use permit. ZBA denied an application by a vote 3 to 2, and CME then commenced this action, arguing that a unanimous vote by ZBA members was required. Supreme Court granted the petition and respondents appealed.

The court concluded that the Supreme Court erred in granting the petition, as the unanimity rule of the Town Law did not apply here. Pursuant to the Town Law, upon a “rehearing,” ZBA may “reverse, modify or annul its original order, decision or determination only with the unanimous vote of all members then present.” A rehearing occurs only after a motion by a member of the board to review a prior ZBA decision, there was no such motion, and thus the unanimity rule did not apply. The fact that ZBA was ordered to review the application by a justice in a related proceeding is irrelevant here, since this review was not due to a motion of a ZBA member. The court thus concluded that the Supreme Court erred in granting the petition and remitted the case for considering the remaining grounds for annulment of ZBA’s decision.

Carl Myers Enterprises, Inc. v Town of Conesus Zoning Board of Appeals, 2021 WL 1826920 (NYAD 4 Dept. 5/7/2021)