Walt Whitman Game Room Inc. v. Zoning Board of Appeals of Huntington

54 A.D.2d 764, 387 N.Y.S.2d 698, 1976 N.Y. App. Div. LEXIS 14430

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1976
• Status: Published

Opinion

In a proceeding to review a determination of the respondent zoning board of appeals, which, after a hearing, denied petitioner’s application for a special exception permit, petitioner appeals from a judgment of the Supreme Court, Suffolk County, entered March 20, 1976, which dismissed the petition. Judgment reversed, on the law, without costs or disbursements, and matter remanded to the zoning board of appeals for further proceedings consistent herewith. The petitioner applied to the respondent zoning board of appeals for a special exception permit to conduct a "place of amusement (game room)”. Of the seven members of the zoning board of appeals, two voted to grant the application, two voted to deny it, two members abstained and one was absent. The application of the provisions of section 41 of the General Construction Law to the action of the zoning board of appeals here sought to be reviewed would require four votes, a majority of the whole number which the board has, to perform or exercise a duty or power. The vote in the instant situation was not a valid action and "was equivalent to nonaction” (see Matter of Squicciarini v Planning Bd. of Town of Chester, 48 AD2d 687, affd 38 NY2d 958). Accordingly, the matter has been remanded to the zoning board of appeals for a vote in accord with section 41 of the General Construction Law (cf. Matter of Gray v Maislen, 17 Mise 2d 161). Hopkins, Acting P. J., Margett, Shapiro and Titone, JJ., concur.