Informal Opinion No. ( 1988 )

Paul T. Kellar, Esq. Town Attorney, Gardiner

You have requested an opinion of the Attorney General as to the voting requirements for a town planning board. You have asked what vote is necessary to take action with regard to a planning board with seven authorized members, where two members are absent and two others abstain.

Whenever three of more public officers exercise any power, a majority of the whole number of such 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 quorum and voting requirements for a local legislative body required to act by a two-thirds or three-fourths vote (Matter ofSmithtown v Howell, 31 N.Y.2d 365, 376-378 [1972]; Savatgy v City ofKingston, 20 N.Y.2d 258, 263 [1967]).

Applying these rules to your seven-member planning board, action by a majority vote would require that four members of the board vote in favor of the proposal. Thus, under the circumstances you have presented where two members abstain and two are absent, a vote in favor of a proposal by the remaining three members is insufficient to approve the measure.

We conclude that in situations where a majority vote is required, a seven member planning board may take action only through a vote of four members of the board.