Development

In landowner's article 78 proceeding to annul the ZBA's denial of a conditional use permit, neighbors and the ZBA appealed from Supreme Court's grant of the petition. The Appellate Division modified, overturning Supreme Court's conclusion that the ZBA had to act unanimously, but remanded to the ZBA to consider landowner's other grounds for overturning the denial.

Landowner had obtained approval from the ZBA to build a somewhat different commercial project on the subject parcel. When landowner began construction of the current project, allegedly without obtaining the requisite approvals, Supreme Court, in a separate proceeding, ordered the ZBA to revisit the zoning application. The ZBA then determined by a 3-2 vote to deny the special use permit the landowner sought. Landowner then brought this article 78 proceeding, contending that the ZBA's review of the proposal constituted a rehearing, and, under Town Law section 267-a[12], a decision to reverse or modify a previous decision upon rehearing requires a unanimous vote of all ZBA members present. (Landowner also raised other grounds for annulling the ZBA decision). Supreme Court annulled the determination based on section 267-a. The ZBA and the neighbors appealed.