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93 N.Y.2d 334 (1999).
April 29, 1999

2 No. 62

[99 NY Int. 0054]

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Two questions are before us in this zoning dispute: first, whether a Town Planning Board "took action" within the meaning of the relevant statutes when it rejected petitioners' final subdivision application and second, if so, whether suchaction automatically extinguished preliminary plat approval.

Both questions we answer in the affirmative.

Since 1990, petitioners Gil Aloya, Sonia Aloya and Nava
Gueron have sought to develop a 45–acre property in the Town of
Stony Point, located in Rockland County. Hoping to subdivide the
property into 27 lots and build single–family homes, petitioners
received sketch plan approval from the Town of Stony Point
Planning Board, and on December 4, 1991 obtained unanimous,
unconditional preliminary approval of their plan. On March 1,
1992, petitioners submitted an application for final subdivision
plat approval. Pursuant to General Municipal Law 239–n, which
requires town planning agencies to refer certain applications to
county planning boards before taking final action, the Board
referred petitioners' plan to the Rockland County Planning
Department. Citing insufficient information to enable adequate
review of drainage impacts, the Department recommended
disapproval of the application and noted that the General
Municipal Law required a "majority plus one" vote of the Board to
override its findings.
General Municipal Law 239–n(5) states that if "such
county, metropolitan or regional planning agency recommends
modification or disapproval of a referred plat, the referring
body shall not act contrary to such recommendation except by a
vote of a majority plus one of all the members thereof."

On July 28, 1994, the Board, which consists of seven
members, held a public hearing and then voted on petitioners'
application. Only six of the Board members attended and a totalof five votes were cast –– four to approve the application, one
against. Because the "majority plus one" requirement of General
Municipal Law 239–n(5) had not been satisfied, the motion for
approval failed and, as reported in the minutes, the application
was "turned down."
Petitioners commenced an article 78 proceeding,
alleging that the July 28 vote was not an "action" within the
meaning of Town Law 276 because the Board failed to take one of
three steps specified in that provision: it did not approve,
conditionally approve or deny their application.
Town Law 276(6) provides that "the planning board shall
by resolution conditionally approve with or without modification,
disapprove, or grant final approval and authorize the signing of
such plat" ( see, 276[6][b] [applicable where Planning Board
deems final plat to be in substantial agreement with an approved
preliminary plat], [6][d][I][3] [applicable where Planning Board
is lead agency], [6][d][ii][3] [applicable where Planning Board
is not lead agency]).

argued that the Board's failure to "take action" within 62 days
of the public hearing warranted a determination, under Town Law
276(8), that by default the application be "deemed granted
According to Town Law 276(8), in "the event a planning
board fails to take action on a preliminary plat or a final plat
[within 62 days], or within such extended period as may have been
established by the mutual consent of the owner and the planning
board, such preliminary or final plat shall be deemed granted

Supreme Court dismissed the petition, holding that
the Board "took action" and that petitioners' failure to obtain a
supermajority vote to override the Department's recommendationconstituted disapproval of the application. The Appellate
Division affirmed (230 AD2d 790).
On January 26, 1996, petitioners submitted another
application to the Board, once again requesting final subdivision
approval. Within three days, the Board rejected the application,
this time on the ground that a moratorium prohibited accepting,
processing, reviewing or granting approval of "major subdivision"
applications unless sketch approval had been unconditionally
granted before September 22, 1994 (Local Laws, 1995, Nos. 5, 8 of
Town of Stony Point; 1994, No. 7). Petitioners instituted a
second article 78 proceeding against the Board, seeking default
approval of their 1996 application, or in the alternative a
determination that the preliminary approval obtained in 1991
remained in effect, and their application for final approval
therefore avoided the moratorium.
Supreme Court concluded that the Planning Board had not
revoked preliminary plat approval obtained in 1991 and ordered
consideration of petitioners' application.
Supreme Court dismissed petitioners' claim seeking
default approval of their 1996 application for failure to join
the Town Clerk as a party.

The Appellate
Division, however, reversed, holding that the Planning Board's
July 28, 1994 unconditional disapproval of petitioners'
application ended the review process, and that petitioners'
second application "at best, could be considered a new
application for plat approval which would be subject to thebuilding moratorium enacted before the 'reapplication' occurred"
(241 AD2d 73, 76).
We agree with both Appellate Division determinations.
By voting, failing to secure the supermajority necessary to
override the Department's recommendation and thus rejecting
petitioners' final application, the Board "took action" within
the meaning of Town Law 276(6) and (8). Moreover, denial of
the final application extinguished prior preliminary approval,
subjecting petitioners' subsequent plans to the moratorium.
The Board "Took Action"
The answer to petitioners' first question –– whether
the Town Planning Board "took action" when it failed to gain a
supermajority –– lies in a series of statutory provisions that
illuminate a clear path to the conclusion we reach.
Town Law 276(6) requires a Planning Board to "act" on
a final plat application in one of three ways. The Board can
resolve to approve, conditionally approve or disapprove a final
subdivision plan. Typically, such Board "action" would be
governed by General Construction Law 41, which provides:

"[w]henever three or more public officers are
given any power or authority, or * * * 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 * * * 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 * * * would have were there novacancies and were none of the persons or
officers disqualified from acting."
Under certain specified circumstances, however, Town
Planning Boards must refer applications for final plat approval
to County Planning authorities before "taking final action"
(General Municipal Law 239–n[2], [3], [4][b]; see also, Matter
of King v Chmielewski
, 76 NY2d 182, 188).
If the County Planning authority disapproves or
recommends modification of the application –– the situation
before us in this case –– General Municipal Law 239–n(5) then
explicitly mandates that "the referring body shall not act
contrary to such recommendation except by a vote of a majority
plus one of all the members thereof." Moreover, we are told the
objective behind the Legislature's explicit supermajority
requirement: to prevent "municipal agencies from disregarding a
county agency's known objections" (Mem of Div of Budget, Bill
Jacket, L 1993, ch 544 [discussing identical supermajority
provision in General Municipal Law 239–m]; Mem of Dept of
State, Bill Jacket, L 1994, ch 358 [noting that proposed General
Municipal Law 239–n would establish the same procedures for
referral of subdivision plat applications as those implemented in
General Municipal Law 239–m]).
Petitioners concede that on July 28, 1994, the Town
Planning Board did not approve their final application as there
was no "majority plus one" vote required to override the County
Planning Department's negative recommendation. They argue,however, that pursuant to General Construction Law 41, the
Board failed to act because there was no majority vote in favor
of disapproval of their application. As such, petitioners claim
they are entitled to default approval pursuant to Town Law
276(8). Permitting default approval pursuant to Town Law
276(8) despite failure to obtain a "majority plus one" would,
however, negate the explicit requirement of General Municipal Law
239–n(5) and defeat the legislative purpose behind that
requirement . County modifications and disapprovals could easily
be disregarded if disapproval for failure to obtain a
supermajority did not constitute "action."
We thus conclude, as did the Appellate Division, that
the turning down of petitioners' final plat application for
failure to gain supermajority approval constituted dispositive
Board action under the law .
Board Rejection Terminated Preliminary Approval Petitioners' second argument –– that their 1996
application avoids the moratorium because preliminary approval
obtained in 1991 continued in effect even after rejection of
their final application in 1994 –– is equally unpersuasive.
Petitioners assert that there is no "express language" in any
statute providing that denial of final approval results in
termination of preliminary approval, and that pursuant to Town
Law 276(5)(h) the Town Planning Board cannot revoke preliminary
approval absent affirmative action.
In defining preliminary plat approval as "the approval
of the layout of a proposed subdivision * * * subject to the
approval of the plat in final form" (emphasis added), Town Law
276(4)(c) makes plain that the validity of preliminary plat
approval is contingent on final approval. Indeed, as noted by
the Appellate Division and consistent with the definition in Town
Law 276(4)(c), "preliminary" means "temporary and provisional"
anticipating the occurrence of a contingency (241 AD2d 73, at 76,
supra [citing Black's Law Dictionary 1180 (6th ed 1990)]). Once
a final application is denied and the two–stage review process
complete ( see, Matter of Long Island Pine Barrens Socy., Inc. v
Planning Bd. of the Town of Brookhaven
, 78 NY2d 608, 612), the
subdivision plan can no longer be approved, rendering preliminary
plat approval invalid as the essential contingency –– final
approval –– cannot arise. Thus, by operation of law denial of
petitioners' final plat application itself rescinded the
preliminary approval.
Petitioners' reliance on Town Law 276(5)(h) is
misplaced. That provision authorizes the Town Planning Board to
revoke preliminary plat approval where an owner fails to submit a
final application within six months of receiving preliminary
approval. Petitioners deduce from this that it was necessary for
the Board to take formal action to revoke their preliminary plat
approval. The statute, however, empowers the planning authority
to rescind preliminary approval before determination of the finalapplication. As such, it is inapposite here.
Petitioners' remaining arguments are likewise without
Accordingly, the orders of the Appellate Division
should be affirmed, with costs.

* * * * * * * * * * * * * * * * *

Orders affirmed, with costs. Opinion by Chief Judge Kaye.
Judges Bellacosa, Smith, Levine, Ciparick, and Wesley concur.
Judge Rosenblatt took no part.