In the Matter of Juda Construction, Ltd. v. Spencer
| Decision Date | 06 September 2005 |
| Docket Number | 2003-03465. |
| Citation | 2005 NY Slip Op 06602,21 A.D.3d 898,800 N.Y.S.2d 741 |
| Parties | In the Matter of JUDA CONSTRUCTION, LTD., et al., Respondents, v. JOHN SPENCER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
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 exception use permit is subject to review in a proceeding pursuant to CPLR article 78. Although there are circumstances in which the judiciary will decline to exercise its authority out of "deference to a coordinate, coequal branch of government" (Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v. Cuomo, 64 NY2d 233, 239 [1984]), those considerations are not present here. The...
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...generally will be granted if the applicant satisfies all of the conditions in the zoning ordinance (see Matter of Juda Constr., Ltd. v. Spencer, 21 A.D.3d 898, 900, 800 N.Y.S.2d 741 ; Matter of Twin County Recycling Corp. v. Yevoli, 224 A.D.2d 628, 628, 639 N.Y.S.2d 392, affd 90 N.Y.2d 1000......
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...use permit is generally granted if the applicant satisfies all of the conditions in the ordinance ( see Matter of Juda Constr., Ltd. v. Spencer, 21 A.D.3d 898, 900, 800 N.Y.S.2d 741; Matter of Twin County Recycling Corp. v. Yevoli, 224 A.D.2d 628, 628-629, 639 N.Y.S.2d 392, affd. 90 N.Y.2d ......
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