Opinion
CA 05-01352.
March 17, 2006.
Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered October 26, 2004 in a proceeding pursuant to CPLR article 78. The judgment, among other things, dismissed the petition.
LAW OFFICE OF JOSEPH A. CAMARDO, JR., AUBURN (KEVIN M. COX OF COUNSEL), FOR PETITIONER-APPELLANT.
THOMAS G. LEONE, CORPORATION COUNSEL, AUBURN (NANCY F. HUSSEY OF COUNSEL), FOR RESPONDENTS-RESPONDENTS ROBERT RAJMAN, DON AUBIN, SUSAN MARTENEY, DAN SINCEBAUGH, GREG GENTILE, CRAIG WESTLAKE AND ED DARROW, CONSTITUTING MEMBERS OF CITY OF AUBURN ZONING BOARD OF APPEALS.
Present: Pigott, Jr., P.J., Hurlbutt, Gorski, Green and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the petition is granted.
Memorandum: In this CPLR article 78 proceeding, petitioner appeals from a judgment that, inter alia, affirmed the findings of the City of Auburn Zoning Board of Appeals (ZBA) and determined that the Code Enforcement Officer for the City of Auburn (City) "did not act improperly in issuing a building permit" to respondent Brendan Grillo, authorizing him to construct two additional six-unit multiple family dwellings to his apartment complex located in the City. Petitioner lives directly across the street from the proposed site.
We agree with petitioner that the ZBA's determination was arbitrary and capricious and had no rational basis because the record establishes that the proposed project would exceed the permitted neighborhood density requirements under the City of Auburn Code (Code) ( see generally Matter of Ifrah v. Utschig, 98 NY2d 304, 308). Although section 305-34 (B) (5) (c) (2) (a) of the Code provides that the permitted neighborhood density is no more than 68 units, section 305-34 (B) (5) (c) (1) of the Code, as amended by a local ordinance, provides that the appropriate number of units per neighborhood density is no more than 40 units. Petitioner contends that section 1-17 of the Code resolves any discrepancy between those sections by requiring that the most restrictive density requirement applies. We agree. Here, the City's Code Enforcement Officer provided three density calculations, all of which exceeded the permitted neighborhood density of 40 units. We therefore reverse the judgment and grant the petition to annul the determination of the ZBA.