Matter of Benderson Dev. Co., LLC v. Zoning Bd. of Appeals of City of Utica

• Decision Date: 30 December 2009
• Docket Number: 1663 CA 09-01457
• Citation: 891 N.Y.S.2d 792,68 A.D.3d 1814,2009 NY Slip Op 9929
• Parties: In the Matter of BENDERSON DEVELOPMENT COMPANY, LLC, Respondent, v. ZONING BOARD OF APPEALS OF CITY OF UTICA, Respondent, and KESSEL BRENT CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 1814

2009 NY Slip Op 9929

891 N.Y.S.2d 792

In the Matter of BENDERSON DEVELOPMENT COMPANY, LLC, Respondent, v. ZONING BOARD OF APPEALS OF CITY OF UTICA, Respondent, and KESSEL BRENT CORPORATION, Appellant.

1663 CA 09-01457

Appellate Division of the Supreme Court of New York, Fourth Department.

Decided December 30, 2009.

Appeal from a judgment (denominated order and judgment) of the Supreme Court, Oneida County (Samuel D. Hester, J.), entered November 24, 2008 in a proceeding pursuant to CPLR article 78. The judgment granted the petition.

It is hereby ordered that the judgment so appealed from is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Oneida County, for further proceedings on the petition in accordance with the following memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination of respondent Zoning Board of Appeals of the City of Utica (ZBA) approving "the request for the appeal of the decision of the Planning Board's Preliminary Site Plan approval" and directing petitioner to submit a new preliminary site plan. In its decision, Supreme Court stated that it "will grant the petition to the extent that the determination of the [ZBA] to require the petitioner to submit additional plans or new plans is annulled as being arbitrary and capricious; and otherwise, the petition is denied." We note that at the outset that, although the judgment conflicts with the decision, the decision controls (see Matter of Edward V., 204 AD2d 1060, 1061 [1994]; see also Gui's Lbr. & Home Ctr., Inc. v Mader Constr. Co., Inc., 13 AD3d 1096, 1097 [2004], lv dismissed 5 NY3d 842 [2005]; Matter of Calm Lake Dev. v Town Bd. of Town of Farmington, 213 AD2d 979, 980 [1995]). Here, however, the decision itself is internally inconsistent inasmuch as the sole basis for the court's determination was the failure of respondent Kessel Brent Corporation (Kessel Brent) to comply with certain procedural requirements in appealing the determination of the City of Utica Planning Board to the ZBA, thereby rendering the ZBA's determination arbitrary and capricious. Such a failure by Kessel Brent would only justify granting the petition, rather than denying it in part while at the same time annulling the requirement that a new site plan be submitted.

Furthermore, the evidence in the record does not support the sole basis for the court's determination. In its decision, the court concluded...