Construction Firm Wins Appeal for Rock Crusher

The New York State Supreme Court, Appellate Division has ruled that Juda Construction be granted a special executive use permit to operate a rock crusher in Yonkers, NY. This comes after a former mayor vetoed the initial petition.

As part of the ruling, the court ruled that 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

The court found that the then mayor’s veto was illegal.

In its judgment, the court order that contrary to the arguments advanced by the Mayor, 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.

In its ruling, the court wrote that “The Mayor is not co-equal to the state judiciary. Moreover, the exercise of the mayoral veto in issue here, effectively denying a special exception use permit, is a quintessentially administrative act that is subject to judicial review pursuant to CPLR article 78. A determination to grant or deny a special exception use permit is subject to review in a proceeding pursuant to CPLR article 78 even where that authority is exercised by the local legislative body.

“Since the action of the legislative body itself is subject to judicial review, the Mayor cannot avoid judicial review of his veto simply by characterizing the veto as "legislative."

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" . . .”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.”

According to published reports, the company applied for permits to crush rock into gravel at a former quarry site. In July of 2000 city and state of New York officials raided the facility, claiming that the company was illegally dumping waste and crushing rocks at the site.