Tall Trees Construction Corp. v. Zoning Bd. of Appeals, 97 N.Y.2d 86 (2001)

When a quorum of a zoning board of appeals is present and participates in a vote on a variance application, a vote of less than a majority of the board in favor of the application is deemed a denial of the variance.

Summary

Tall Trees Construction Corporation sought area variances from the Town of Huntington Zoning Board of Appeals to subdivide a property. After the Board repeatedly issued “no action” decisions due to tie votes, Tall Trees initiated Article 78 proceedings. The New York Court of Appeals held that repeated tie votes by a zoning board on a variance application, where a quorum is present and voting, effectively constitute a denial of the application. The Court further found that the denial in this specific case was arbitrary and capricious, given the evidence presented and the Board’s prior approvals of similar applications.

Facts

Tall Trees Construction Corporation applied to the Town of Huntington Zoning Board of Appeals for area variances to divide a 1.94-acre parcel into two lots and construct a home on each. Lawrence Lamanna, the vice-chair of the Board, owned property abutting the parcel in question, and therefore, abstained from voting. The initial vote resulted in two members voting to deny, two voting to grant, and two absent, leading to a “no action” determination. The Board reiterated the same “no-action” determination after being compelled to vote again by court order.

Procedural History

1. Tall Trees initially commenced a CPLR Article 78 proceeding after the first “no action” decision, seeking to annul the Board’s decision and compel the granting of the variances. The Supreme Court remitted the matter back to the Board.

2. Following the Board’s second “no action” decision, Tall Trees commenced a second CPLR Article 78 proceeding. Supreme Court granted the petition, annulled the Board’s second decision, and granted the variances.

3. The Appellate Division reversed, remitting the matter to the Board for a new hearing, concluding that the Board’s vote was not a denial.

4. The New York Court of Appeals reversed the Appellate Division, reinstating the Supreme Court’s judgment.

Issue(s)

Whether repeated tie votes by a Zoning Board of Appeals on an application for area variances, where a quorum is present and participates in the voting, constitutes a denial of the application.

Holding

Yes, because General Construction Law § 41 allows valid action by a body as long as there is participation by a majority, and Town Law § 267-a(4) requires a concurring majority to “reverse” a determination or to “grant” a variance, but does not specify the same requirement for a denial. Therefore, failure to achieve a concurring majority to grant the variance results in a denial.

Court’s Reasoning

The Court of Appeals reasoned that a harmonious reading of General Construction Law § 41 and Town Law § 267-a(4) indicates that while a majority of the board must participate to exercise authority, a concurring majority is not required to deny a variance application. Town Law § 267-a(4) explicitly requires a concurring majority to “reverse” a determination or to “grant” a variance. The absence of such a requirement for denial implies that if a concurring vote does not exist to grant the application, it is necessarily denied.

The Court explicitly rejected the prior holding in Matter of Walt Whitman Game Room v Zoning Bd. of Appeals, which had concluded that a tie vote constitutes non-action. The Court found that Walt Whitman‘s reliance on Matter of Squicciarini v Planning Bd. was misplaced, as Squicciarini involved a situation where a majority of the board did not participate in the vote, violating General Construction Law § 41.

The Court also addressed the specific facts of the case, finding the Board’s denial of the variance to be arbitrary and capricious. Citing Matter of Sasso v Osgood, the Court reiterated the balancing test required when deciding on area variances, weighing the benefit to the applicant against the detriment to the community. The Court emphasized that the Board provided no factual findings to support its denial, and that the record contained unrefuted evidence that the variances would have minimal adverse impact on the neighborhood. Quoting Knight v Amelkin, the court stated, “ ‘[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious.’ ” Given that similar applications had been approved in the past, the denial in this case was deemed arbitrary and capricious.

The court found that the Board’s repeated tie votes, in effect, blocked the applicant’s right to judicial review and would leave the petitioner’s application in “zoning purgatory.” The Court held that the benefit of granting the variance was significant, the detriment to the community minimal, and that the Board had acted arbitrarily.

97 N.Y.2d 86 (2001)

When a quorum of a Zoning Board of Appeals is present and participates in a vote on a variance application, a tie vote that fails to garner a majority to grant the application is deemed a denial.

Summary

Tall Trees Construction Corp. applied for area variances to subdivide a property. The Zoning Board of Appeals repeatedly deadlocked on the application. Tall Trees then initiated a CPLR article 78 proceeding arguing the tie vote should be considered a denial. The New York Court of Appeals held that a tie vote by a zoning board, where a quorum is present and participates in the vote, is effectively a denial of the variance application. The Court also determined that the denial was arbitrary and capricious because the benefit to the applicant was significant while any detriment to the community was minimal, and similar applications had been approved in the past.

Facts

Tall Trees Construction Corp. sought area variances from the Town of Huntington Zoning Board of Appeals to divide a 1.94-acre parcel into two lots and construct a home on each. Lawrence Lamanna, the vice-chair of the Board, owned property abutting the parcel. The Board initially issued a “NO ACTION” decision after a vote of 2-2, with two members absent and Lamanna abstaining. After a court order to reconsider, the Board again issued a “NON-ACTION” determination based on the same vote.

Procedural History

Tall Trees initially commenced a CPLR article 78 proceeding, and the Supreme Court remitted the matter to the Board for another vote. When the Board again deadlocked, Tall Trees initiated a contempt proceeding. The Supreme Court then granted the petition, annulled the Board’s second decision, and granted the variances. The Appellate Division reversed, remitting the matter for further proceedings, including a new hearing. The New York Court of Appeals granted leave to appeal.

Issue(s)

Whether a tie vote by a Zoning Board of Appeals, where a quorum is present and participates in the vote, constitutes a denial of a variance application.

Holding

Yes, because although Town Law § 267-a(4) requires a concurring majority vote to grant a variance, it does not require the same majority vote concurrence for a denial. If no concurring vote of the majority exists to grant an application after participation and voting by a majority of the board, the application is denied.

Court’s Reasoning

The Court reasoned that General Construction Law § 41 allows valid action by a body as long as there is participation by a majority of the whole number. Town Law § 267-a(4) mandates a concurring majority vote to reverse a determination or grant a variance, but conspicuously omits this requirement for denial. The Court harmonized these provisions by concluding that if a majority participates and votes, the absence of a majority vote to grant the application results in its denial. The Court rejected the prior holding in Matter of Walt Whitman Game Room v Zoning Bd. of Appeals that a tie vote is equivalent to nonaction because the Walt Whitman decision incorrectly relied on Matter of Squicciarini v Planning Bd. where there was no majority participation. The Court stated, “[w]e find it curious that this particular Zoning Board of Appeals has a history of `nonaction’ tie votes which, in effect, block an applicant’s right to judicial review.” The court found that the denial of the variance was arbitrary and capricious because the unrefuted evidence presented by Tall Trees demonstrated that the benefit of granting the variances was great, any detriment to the community was minimal, and nearly identical variance applications had been approved in the past. The Court cited the principle that “`[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious.’”