The opinion
Order reversed on the law, without costs of this appeal to any party, petition granted and determination of the board of appeals of the city of Rochester annulled. Memorandum: On this record we reach the conclusion that the board of appeals of the city of Rochester was without power to grant the variance, if one was required, to permit the issuance of a permit. (Matter of Clark v. Board of Zoning Appeals of Town of Hempstead, 301 N. Y. 86 .) The order must therefore be reversed. Permitted uses in an F-l residential zone include an apartment house. We think that the proposed building comes within the definition of an apartment house and that no variance is required for the erection of such a building. Failure of the zoning ordinances of the city of Rochester to make provision for the erection of homes for the aged leads to the conclusion that it must have been the intention of the legislative body of the city that a building such as *851 here proposed be included within the classification of an apartment house. It would appear from the record that the superintendent of buildings was in error in refusing permission to erect the building in question upon the ground that it was a prohibited use in an F-l residential district. There appears to be no justification for the charges set forth in point VI of petitioner-appellant’s brief. All concur, except Vaughan and Wheeler, JJ., who dissent and vote for affirmance. (Appeal from an order affirming the determination of the zoning board of appeals and dismissing the petition of petitioner.) Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.