NY Appellate Court Upholds Invalidation of Zoning Board’s Second Vote to Reconsider First Vote at Same Meeting

Following the Planning Board’s approval of a special use permit to cover part of the property into an eating and drinking establishment, the building inspector and code enforcement officer issued a building permit allowing for renovations on the property, and after the work issued a certificate of occupancy to the new owner.  Respondents who are lessees of property across the street challenged the certificate of occupancy, and the Zoning Board of Appeals passed a resolution dismissing the appeal on the basis that it was untimely but then at the same meeting later on passed another resolution to abandon its earlier decision and then scheduled a rehearing.  Prior to the rehearing, petitioner commenced the present action to annul the ZBA’s determination to rehear the appeal and to declare the certificate of occupancy to be in full force and effect.  The lower court stayed the rehearing and respondents opposed.  The Court ultimately granted the petition annulling the ZBAs resolution to abandon its initial decision, and found the appeal barred by laches.

The appellate court found the laches ground to be in error since the ZBA merely scheduled a rehearing for a later date, and it was not dismissed by the ZBA.  However, the appellate court held that the lower court correctly granted the petition to annul the second resolution because the Town local law requires that to reconsider a vote it requires a unanimous vote of the board, and here one member voted against it.  Therefore the Court upheld the validity of the certificate of occupancy.

Upper Delaware Hospitality Corp. v Town of Tusten Zoning Board of Appeals, 2024 WL 117275 (NYAD 3 Dept. 1/11/2024)