Opinion
March 16, 1990
Appeal from the Supreme Court, Onondaga County, Donovan, J.
Present — Callahan, J.P., Doerr, Denman, Lawton and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to respondent for further proceedings, in accordance with the following memorandum: Supreme Court properly set aside the determination of the City of Syracuse Zoning Board of Appeals denying petitioner's application for a variance, but erred by reinstating the Board's vote of November 19, 1987 wherein the variance was approved. The City of Syracuse Ordinance and the Board's Rules of Procedure provide that the Board shall act by resolution. Consequently, only the passing of a resolution is a final decision and the court had no authority to reinstate a decision of the Board never finalized by resolution.
The Board's vote of May 5, 1988, failing to approve the resolution granting petitioner's request for a variance, was properly set aside on at least three procedural grounds. First, the Board failed to comply with notice requirements before "reopening" the public hearing on March 24, 1988. Secondly, Board member Elizabeth Cummings voted against the resolution although she was not eligible to vote because she had not attended the public hearing on October 29, 1987. Lastly, the Board failed completely to make factual findings in support of its determination, thus foreclosing intelligent appellate review. A failed resolution is not sufficient and provides no basis for the Board's decision (see, Leibring v Planning Bd., 144 A.D.2d 903; Matter of Greene v Johnson, 121 A.D.2d 632, 633; cf., Matter of Masten v Baldauf, 147 A.D.2d 566, 567).
The Board's vote of May 5, 1988 is vacated and the matter is remitted to the Board for whatever further proceedings it deems necessary to determine petitioner's application. When making its determination, the Board may not consider the information obtained during its meeting on March 24, 1988.