Yonkers City Council improperly blocked plans for a convenience store on McLean Avenue, a businessman claims, by bowing to public pressure.
Syed H. Kirmani sued the city and city council on Jan. 10 in Westchester Supreme Court, accusing them of “arbitrarily and capriciously” rejecting the Yonkers Planning Board approval of the project.
Last June, Kirmani”™s 853-855 McLean LLC bought a former gas station on McLean Avenue for $1.5 million, according to county property records. Kim”™s Motorcycle Sales & Repairs Corp. operated there, and the site was also used, according to the lawsuit, to store “scrap vehicles.”
Kirmani”™s plan is to reopen the business as a gas station and to enlarge and convert the motorcycle repair shop to a convenience store.
The Zoning Board of Appeals granted approvals for the gas station, the complaint states, and the planning board approved site plans for the project.
Regardless of what happens to the proposed convenience store, the lawsuit states, the gas station will be built.
But Kirmani needs a special use permit for the convenience store, to ensure, for example, that the store will not detract from the character of the neighborhood or harm workers and residents.
“The devil is in the details,” a planning board case review memo states, “and the planning board”™s job is to make this site as attractive as possible and with as few offsite impacts as possible.”
The planning board was concerned about traffic flow, according to the lawsuit, so Kirmani”™s plans eliminated two of the four gas pump islands and eliminated access at Delano Avenue and Harding Street.
The proposed store was reduced by 500 square feet, to 2,500, and he agreed to restrict lighting and hours of operations for the sake of nearby residential neighbors.
No residents spoke about the project at two public hearings. The planning board issued findings that held that the service station and convenience store met requirements for a special use permit and site plan.
Last July, the board unanimously approved the special use permit and site plan.
City council has final say over approval of special use permits, and when its Dec. 11 meeting was opened for public comment, several people spoke against the project.
They cited environmental and traffic concerns, according to the lawsuit. Council members responded in kind.
“Neighbors feel this convenience store will be a threat to their quality of life,” Councilman Mike Breen said at the meeting. “And when something is proposed that threatens the quality of life in the neighborhood, it”™s our job to turn down that proposal.”
Council President Mike Khader, according to the complaint, said there was no other explanation for denying the special use permit, “other than it”™s not wanted here.”
Council rejected the permit by a 7-0 vote.
Kirmani claims the city council abused its discretion because it did not base its decision on empirical information. “Rather, the city council wrongfully based its determination on generalized community opposition from several residents.”
Breen responded to a request for comment by deferring to John Rubbo, whose council district includes McLean Avenue. Rubbo and Khader did not immediately respond to email messages asking for comment.
Kirmani is petitioning the court to annul the council”™s vote and to send the matter back to council for approval.
He is represented by Joseph F. Castiglione of Young/Summer LLC in Albany.
