
    In the Matter of Martin Squicciarini et al., Respondents, v Planning Board of the Town of Chester, Appellant.
    Argued February 10, 1976;
    decided March 23, 1976
    
      
      John F Meehan for appellant.
    
      David L. Levinson and James R. Loeb for respondents.
   Memorandum. The order of the Appellate Division should be affirmed.

The Zoning Law of the Town of Chester provides that "Failure of the Planning Board to take action on a special permitted use within 45 days of the public hearing shall be construed as authorization of such use by the Planning Board” (§ 5.1.2.4).

Petitioners applied for a special permit for excavation and removal of sand and gravel, and a public hearing was held by the Planning Board on July 3, 1974. The only evidence in the record as to action assertedly taken by the Planning Board thereafter with respect to such application is proof that a special meeting of the board was held on July 16 at which four members of the seven-member board were present. On a motion to deny the application three members voted in favor and one member abstained. Since the concurring votes of at least four members ("a majority of the whole number”, General Construction Law, § 41) was required for effective action, the proposal to deny the application was not adopted. There being no other action with respect to the application, by explicit provision of the town’s zoning law, the failure of the board to take action on petitioners’ application within 45 days after July 3 must be construed as authorization of the desired use.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg, and Cooke concur.

Order affirmed, with costs, in a memorandum.  