Juda Construction, Ltd. v. Spencer
Opinion of the Court
Ordered that the judgment is affirmed, with costs.
The petitioner’s application for a special exception use permit to operate a rock crushing facility in an industrial zoning district was granted by the Zoning Board of Appeals of the City of Yonkers and approved by resolution of the City Council of the City of Yonkers (hereinafter the City Council), pursuant to Yonkers City Code § 43-73. The resolution was vetoed by the appellant Mayor of the City of Yonkers (hereinafter the Mayor). The petitioners commenced this proceeding pursuant to CPLR article 78 challenging the Mayor’s action, claiming that the Mayor was without authority to veto a resolution approving a special exception use permit and that, if the Mayor did have such authority, its exercise in this instance was arbitrary and capricious. The Mayor disputed the petitioners’ contentions and submitted that the exercise of the mayoral veto was beyond judicial review. The Supreme Court granted the petition, annulled the veto, and directed that the special exception use permit be given full force and effect. We affirm.
The Yonkers City Charter expressly provides that no act of the City Council, including a City Council resolution, is effective until it has received the written approval of the Mayor (see Yonkers City Charter, art 4, § C4-6 [B]). In establishing this mayoral veto power, the Charter expressly included “resolutions” within the class of acts that require mayoral approval. Accordingly, the special exception use permit in issue was not effective without the written approval of the Mayor.
Contrary to the arguments advanced by the Mayor, however, the exercise of the mayoral veto power with respect to a special
A use permitted by special exception use permit is a use that has been found by the local legislative body to be appropriate for the zoning district and “in harmony with the general zoning plan and will not adversely affect the neighborhood” (Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238, 243 [1972]). The permit must be granted if the application satisfies the criteria set forth in the zoning law (see Matter of Pleasant Val. Home Constr. v Van Wagner, 41 NY2d 1028, 1029 [1977]). Here, the Mayor’s veto message established that he exercised his veto power not because, in his judgment, the standards for the issuance of the permit had not been met, but solely on the basis of the concerns expressed by the facility’s neighbors that are without any basis in the record. This was arbitrary and capricious, and accordingly, the Supreme Court properly annulled the Mayor’s action and directed that the City Council’s approval of the permit be given full force and effect (see Matter of Markowitz v Town Bd. of Town of Oyster Bay, 200 AD2d 673, 675 [1994]).
The appellant’s remaining contentions are without merit. H. Miller, J.P., Cozier, S. Miller and Spolzino, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.