Respondent Rock Solid Development, LLC (“Rock Solid”) applied to Respondent Town of Copake Zoning Board of Appeals (“ZBA”) for a special use permit in connection with the proposed construction of a resort hotel on land owned by Respondent Catamount Development Corporation (“CDC”) and located in the Town of Copake.  While the application was pending, a vacancy opened on the five-member ZBA.  In September 2014, the four remaining members split 2-2 on whether to grant Rock Solid’s application.  As there was no majority vote, the ZBA was deemed not to have acted.  In November 2014, after the vacancy was filled, the ZBA granted Rock Solid's application in a 3-2 vote.  Petitioners, who own and operate an inn and restaurant on the adjacent property commenced this CPLR article 78 proceeding claiming, among other things, that the September 2014 tie vote was a default denial of Rock Solid's application. The Supreme Court dismissed the petition, and Petitioners appealed.

On appeal, the Appellate Division, Third Department affirmed the lower court’s ruling.   Writing that it could find no fault with the Supreme Court’s decision, the Court noted that the lower court correctly determined that under the 2002 amendments to Town law § 267-a, “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.”  Furthermore, the Court confirmed that it is the Town Law, and not the ZBA by-laws, which control under these circumstances. 

Here, the ZBA was exercising its original jurisdiction.  Thus, the tie vote constituted a non-action.  The Petitioner’s remaining claims, which included that the new ZBA member was not adequately informed and that the ZBA’s interpretation of the Town Code was irrational, were rejected as without merit.

The case was Matter of Alper Restaurant Inc. v. Town of Copake Zoning Bd. of Appeals, 149 A.D.3d 1337 (3d Dep’t 2017).