TIE ZONING BOARD OF APPEALS VOTE IS NOT A DEFAULT DENIAL WHEN THE BOARD IS EXERCISING ITS ORIGINAL JURISDICTION.

The Third Department determined a 2-2 tie vote by the zoning board of appeals on a special use permit was not a default denial because the board was exercising its original, not appellate, jurisdiction. Therefore a subsequent 3-2 vote in favor of the permit (after a new member was appointed) was valid:

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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 [2001]) 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 … , we agree with Supreme Court that the September 2014 tie vote did not result in a default denial. Matter of Alper Rest. Inc. v Town of Copake Zoning Bd. of Appeals, 2017 NY Slip Op 02871, 3rd Dept 4-13-17

ZONING (TIE ZONING BOARD OF APPEALS VOTE IS NOT A DEFAULT DENIAL WHEN THE BOARD IS EXERCISING IT ORIGINAL JURISDICTION)/ZONING BOARD OF APPEALS (TIE ZONING BOARD OF APPEALS VOTE IS NOT A DEFAULT DENIAL WHEN THE BOARD IS EXERCISING IT ORIGINAL JURISDICTION)