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

Matter of SOUTHSIDE ACADEMY CHARTER SCHOOL and Charter Development Company, L.L.C., Petitioners-Appellants, v. CITY OF SYRACUSE, City of Syracuse Planning Commission, Ruben Cowart, as Chairman of City of Syracuse Planning Commission, and Michael Heagerty, Steven Kulick, Kathy Murphy and Robert Ganley, as Members of City of Syracuse Planning Commission, Respondents-Respondents.  (Appeal No. 2.)

Decided: September 29, 2006

PRESENT:  SCUDDER, J.P., KEHOE, GORSKI, SMITH, AND PINE, JJ. Costello, Cooney & Fearon, PLLC, Syracuse (John R. Langey of Counsel), for Petitioners-Appellants. David Garber, Interim Corporation Counsel, Syracuse (Nancy J. Larson of Counsel), for Respondents-Respondents.

Before us are two appeals by petitioners in separate CPLR article 78 proceedings commenced by them to challenge the determinations of respondent City of Syracuse Planning Commission (Commission) denying the successive applications of petitioners for resubdivision of real property and for site plan approval of their proposal for the construction in respondent City of Syracuse of a new building to house an existing charter school run by petitioners.   The second of the two sets of applications represented petitioners' attempt, by means of multiple design changes, to satisfy the concerns expressed by the Commission in its determination denying petitioners' initial application for site plan approval.

 We conclude that appeal No. 1, by which petitioners challenge the determinations denying their initial set of applications, has been rendered moot by petitioners' submission of an entirely new proposed school design and second set of applications and the Commission's determinations denying those later applications, and we dismiss the first appeal accordingly (see Matter of Century Concrete Corp. v. Zoning Bd. of Appeals of Town of Saugerties, 248 A.D.2d 787, 788, 669 N.Y.S.2d 693;  see generally Matter of Citizens Against Sprawl-Mart v. Planning Bd. of City of Niagara Falls, 8 A.D.3d 1052, 1053, 778 N.Y.S.2d 394;  Bonded Concrete v. Town of Saugerties, 282 A.D.2d 900, 904, 723 N.Y.S.2d 553, lv. dismissed 97 N.Y.2d 653, 737 N.Y.S.2d 53, 762 N.E.2d 931).

 Concerning appeal No. 2, we conclude that Supreme Court erred in dismissing the petition seeking to annul the determinations denying petitioners' second set of applications for site plan approval and for resubdivision of the property.   The determinations of the Commission to deny petitioners' second set of applications were illegal, arbitrary and capricious, and irrational on the record before it (see Matter of W.K.J. Young Group v. Zoning Bd. of Appeals of Vil. of Lancaster, 16 A.D.3d 1021, 1022, 791 N.Y.S.2d 807;  see generally Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732;  Matter of Violet Realty, Inc. v. City of Buffalo Planning Bd., 20 A.D.3d 901, 902, 798 N.Y.S.2d 283, lv. denied 5 N.Y.3d 713, 806 N.Y.S.2d 164, 840 N.E.2d 133;  Matter of Wilcove v. Town of Pittsford Zoning Bd. of Appeals, 306 A.D.2d 898, 899, 762 N.Y.S.2d 714).   The Commission impermissibly based its determination denying the application for site plan approval on certain design features of the proposal-or associated activities-that are intrinsic to a school building or educational use of real property (see Matter of Ronsvalle v. Blumenthal, 144 A.D.2d 766, 767, 535 N.Y.S.2d 171;  Syracuse Bros. v. Darcy, 127 A.D.2d 588, 589, 511 N.Y.S.2d 389;  see also Matter of Holbrook Assoc. Dev. Co. v. McGowan, 261 A.D.2d 620, 621, 690 N.Y.S.2d 686, lv. denied 93 N.Y.2d 817, 697 N.Y.S.2d 564, 719 N.E.2d 925).   Citing such inherent design features “amounts to an objection to the nature of the use itself” and a finding that the school use is an “undesirable use” of the property, “which conclusion runs contrary to the zoning [ordinance] permitting such use” (Holbrook Assoc. Dev. Co., 261 A.D.2d at 621, 690 N.Y.S.2d 686, citing Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243, 331 N.Y.S.2d 645, 282 N.E.2d 606).   Indeed, the inclusion of schools among the uses explicitly permitted within the zone is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood” (North Shore Steak House, 30 N.Y.2d at 243, 331 N.Y.S.2d 645, 282 N.E.2d 606;  see Matter of Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 1002, 665 N.Y.S.2d 627, 688 N.E.2d 501;   Matter of Nisco v. Town of Perinton Zoning Bd. of Appeals, 281 A.D.2d 926, 926-927, 722 N.Y.S.2d 655;  Matter of Heintz v. Edwards, 198 A.D.2d 778, 779, 604 N.Y.S.2d 374).   Because it was the very nature of a school, and not the particular features of petitioners' proposal or design, to which the Commission objected (see Matter of Cornell Univ. v. Beer, 16 A.D.3d 890, 893-894, 791 N.Y.S.2d 682), the determinations must be annulled (see Holbrook Assoc. Dev. Co., 261 A.D.2d at 621, 690 N.Y.S.2d 686).   We therefore reverse the judgment, grant the petition and remit the matter to the Commission with the directive to grant the second set of applications for site plan approval and resubdivision of the property as submitted or with such reasonable conditions and restrictions as the Commission may deem directly related to and incidental to the site plan (see General City Law § 27-a [4];  Syracuse Zoning Rules and Regulations, part C, § I, art. 10;  see generally Nisco, 281 A.D.2d at 926-927, 722 N.Y.S.2d 655;  Holbrook Assoc. Dev. Co., 261 A.D.2d at 621, 690 N.Y.S.2d 686).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the petition is granted and the matter is remitted to respondent City of Syracuse Planning Commission for further proceedings.