Opinion
2002-10392
Argued September 8, 2003.
October 6, 2003.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the City of Yonkers, dated December 5, 2001, which denied the petitioner's application for, inter alia, an interpretation that its use of the subject property is a permitted use in the "CM" zoning district.
Bleakley Platt Schmidt, LLP, White Plains, N.Y. (James W. Glatthaar of counsel), for petitioner.
William M. Mooney, Corporation Counsel, Yonkers, N.Y. (Alain M. Natchev of counsel), for respondents.
Before: NANCY E. SMITH, J.P., SANDRA L. TOWNES, BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION JUDGMENT
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
This proceeding was erroneously transferred to this court pursuant to CPLR 7804(g). Nevertheless, this court will retain jurisdiction for the purpose of deciding the case on the merits ( see Seaview Assn. of Fire Is. v. Department of Envtl. Conservation of State of N.Y., 123 A.D.2d 619; Matter of Charles v. Commissioner, N.Y. State Dept. of Social Servs., 240 A.D.2d 490 ).
It is well settled that "[i]n a proceeding pursuant to CPLR article 78 to review a determination of a zoning board of appeals, judicial review is limited to ascertaining whether the action taken is illegal, arbitrary and capricious, or an abuse of discretion" ( Matter of Mejias v. Town of Shelter Is. Zoning Bd. of Appeals, 298 A.D.2d 458; see Matter of New York Botanical Garden v. Board of Stds. Appeals of City of N.Y., 91 N.Y.2d 413). "In addition, a zoning board's interpretation of its zoning ordinance is entitled to great deference, and will not be overturned by a court unless unreasonable or irrational" ( Matter of Mejias v. Town of Shelter Is. Zoning Bd. of Appeals, supra). "Any ambiguities in a zoning ordinance must be resolved in favor of the property owner" ( id. at 459; see Matter of Hogg v. Cianciulli, 247 A.D.2d 474) . The 2001 zoning ordinance at issue clearly prohibits "concrete batching plants" in a "CM" zone. The zoning ordinance specifically provides that a "concrete batching plant" is "an industrial establishment in which concrete is mixed or processed for use, but which is not manufactured from raw materials." The Zoning Board of Appeals of the City of Yonkers (hereinafter the ZBA) properly determined that the petitioner is operating a "concrete batching plant" in a "CM" zone. Consequently, the zoning ordinance prohibits the petitioner's operations and the ZBA's determination must be confirmed.
The petitioner's remaining contentions either are without merit or academic in light of our determination.
SMITH, J.P., TOWNES, COZIER and MASTRO, JJ., concur.