The opinion
Arthur M. Kahn, Esq. Town Attorney, Rochester
You have informed us that your town has a five-member zoning board of appeals and that currently there is one vacancy. You have asked whether the board may legally make decisions with only four members.
Whenever three or more public officers exercise any power, a majority of the whole number of such persons or officers constitutes a quorum and not less than a majority of the whole number may perform and exercise the power (General Construction Law, § 41 ). Under this provision "whole number" means the total number which the board or other group of officers would have if there were no vacancies and if none of the members were disqualified from acting ( ibid .). This provision also has been construed as defining legislative action by a local body required to act by a two-thirds or three-fourths majority ( Mtr. of Smithtown v Howell, 31 N.Y.2d 365 , 376-378 [1972]; Savatgy v City of Kingston, 20 N.Y.2d 258 , 263 [1967]).
Thus, the vacant position would be counted in determining the "whole number" of the board. Applying these requirements to a five-member board, three votes would be necessary for action in situations where a majority vote is required and where a three-fourths vote is required, four votes would be necessary to take action.
We conclude that in situations where a majority vote is required, a five-member zoning board of appeals may take action by a vote of three members of the board and where a three-fourths vote is required, four votes would be needed for action.