In the Matter of ALPER RESTAURANT INC., Also Known as SWISS HUTTE, et al., Appellants,
TOWN OF COPAKE ZONING BOARD OF APPEALS et al., Respondents, et al., Respondent.
Calendar Date: February 15, 2017
Tuczinski, Cavalier & Gilchrist, PC, Troy (Andrew W.
Gilchrist of counsel), for appellants.
Kenneth J. Dow, Chatham, for Town of Copake Zoning Board of
Freeman Howard, PC, Hudson (Andrew B. Howard of counsel), for
Catamount Development Corporation, respondent.
Before: McCarthy, J.P., Garry, Rose, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Platkin, J.), entered
October 20, 2015 in Albany County, which dismissed
petitioners' application, in a proceeding pursuant to
CPLR article 78, to review a determination of respondent Town
of Copake Zoning Board of Appeals granting a request by
Solid Development, LLC for a special use permit.
Rock Solid Development, LLC applied to respondent Town of
Copake Zoning Board of Appeals (hereinafter the ZBA) for a
special use permit in connection with the proposed
construction of a resort hotel on a parcel of land owned by
respondent Catamount Development Corporation and located in
the Town of Copake, Columbia County . During the review
of that application, a vacancy occurred on the five-member
panel of the ZBA. In September 2014, the four remaining
members voted 2-2 on the issue of whether to grant the
application for a special use permit and, because there was
no majority vote, the ZBA was considered not to have acted.
In November 2014, after a new member was appointed to fill
the vacancy, the ZBA granted Rock Solid's application in
a 3-2 vote. Petitioners, who own and operate an inn and
restaurant on property adjacent to the proposed resort hotel,
commenced this CPLR article 78 proceeding contending, among
other things, that the September 2014 tie vote constituted a
default denial of Rock Solid's application. Following
joinder of issue, Supreme Court, in a thorough and
well-reasoned decision, dismissed the petition. This appeal
find no reason to disturb Supreme Court's determination
that the September 2014 tie vote constituted non-action on
the application, thus permitting the ZBA to vote on the
application for a second time in November 2014. 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
N.Y.2d 86 ) 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 (see Town Law § 267-a  [b]; L
2002, ch 662, § 7; Terry Rice, Practice Commentaries,
McKinney's Cons Laws of NY, Book 61, Town Law §
267-a at 31-33). Inasmuch as it is undisputed that the ZBA
was exercising its original jurisdiction here (see
Code of the Town of Copake § 232-28 [C]), we agree with
Supreme Court that the September 2014 tie vote did not result
in a default denial. Petitioners' additional argument
that the ZBA's bylaws, rather than the Town Law, control
here is patently without merit.
we agree that Supreme Court erred in finding that the newly
appointed ZBA member was adequately informed about the
application when he rendered his vote (see Matter of
Perryman v Village of Saranac Lake, 64 A.D.3d 830, 835-836
), and that the ZBA's interpretation of Code of the
Town of Copake § 232-28 (G) was rational (see
generally Matter of Sullivan v Board of Zoning Appeals of
City of Albany, 144 A.D.3d 1480, 1482 , lv
denied __ N.Y.3d __ [Mar. 23, 2017]). We have reviewed
petitioners' remaining contentions and find them to be
McCarthy, J.P., Garry, Mulvey and Aarons, JJ., concur.
that the judgment is ...