D.E.P. Resources, Inc. v. Planning Bd. of Village of Monroe

Decision Date22 June 1987
Citation516 N.Y.S.2d 954,131 A.D.2d 757
PartiesIn the Matter of D.E.P. RESOURCES, INC., Appellant, v. PLANNING BOARD OF the VILLAGE OF MONROE, Respondent.
CourtNew York Supreme Court — Appellate Division

McGuirk, Levinson, Zeccola, Seaman, Reineke & Ornstein, P.C., Central Valley (David L. Levinson, on brief), for appellant.

J. Bennett Farrell, Monroe, for respondent.

Before MOLLEN, P.J., and THOMPSON, BROWN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Planning Board of the Village of Monroe (hereinafter the planning board), dated June 17, 1985, which denied the petitioner's application for subdivision plat approval, the appeal, purportedly as of right, is from an order of the Supreme Court, Orange County (Palella, J.), dated October 10, 1985, which remitted the matter to the respondent planning board for a rehearing.

ORDERED, that on the court's own motion, the petitioner's notice of appeal is treated as an application for leave to appeal, that application is referred to Presiding Justice Mollen, and leave to appeal is granted by Presiding Justice Mollen (CPLR 5701[b][1] ); and it is further,

ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is granted, the determination is annulled, and the respondent is directed to grant the petitioner's application.

The record on appeal establishes that on June 17, 1985, two out of the five members of the planning board voted to deny the petitioner's application for subdivision plat approval. The chairman of the planning board voted to approve the application; one board member had disqualified himself; the fifth member was absent. Thus, the planning board purported to exercise its power to disapprove of the proposed subdivision plat (see, Village Law § 7-728) based on the concurrence of only two of its five members. It is clear that this was not a valid exercise of the planning board's power.

At common law, "a majority of a body constituted a quorum, and if there were a quorum, a vote of a majority of those present was sufficient for valid action" (Matter of Town of Smithtown v. Howell, 31 N.Y.2d 365, 376, 339 N.Y.S.2d 949, 292 N.E.2d 10). However, this common law rule was abrogated in New York by the enactment of the General Construction Law § 41, which provides as follows:

"Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers, at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board or body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words 'whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting" (emphasis supplied).

Since the planning board consists of five members, at least three members of the board must concur on a given resolution in order for there to be a valid exercise of the board's powers. This requirement may not be circumvented, even though one board member was absent and one abstained (see, Matter of Town of Smithtown v. Howell, supra, at 377, 339 N.Y.S.2d 949, 292 N.E.2d 10). Thus, the planning board's vote was not in accordance with...

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2 cases
  • Hawaii Electric Light Co., Inc. v. DLNR
    • United States
    • Hawaii Supreme Court
    • July 8, 2003
    ...modified in many states with statutes expressly prescribing what is a majority vote. See, e.g., D.E.P. Resources, Inc. v. Planning Bd. of Monroe, 131 A.D.2d 757, 516 N.Y.S.2d 954, 955 (1987) (the "common-law rule was abrogated in New York" by a statute that states that "not less than a majo......
  • Aloya v. Planning Bd. of the Town of Stony Point
    • United States
    • New York Supreme Court — Appellate Division
    • August 12, 1996
    ...in order for there to be a valid exercise of its powers (General Construction Law § 41; cf., Matter of D.E.P. Resources v. Planning Bd. of Vil. of Monroe, 131 A.D.2d 757, 516 N.Y.S.2d 954). In the instant case, the Town Planning Board validly exercised its powers and took action since four ......

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