| Village of Croton-on-Hudson v Northeast Interchange Ry.,LLC |
| 2007 NY Slip Op 09579 [46 AD3d 546] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Village of Croton-on-Hudson,Respondent-Appellant, v Northeast Interchange Railway, LLC, et al.,Appellants-Respondents. (And a Related Action.) |
—[*1] Zarin & Steinmetz, White Plains, N.Y. (David S. Steinmetz and Jody T. Cross of counsel),for appellant-respondent Greentree Realty, LLC. Stecich Murphy & Lammers, LLP, Tarrytown, N.Y. (Marianne Stecich of counsel), forrespondent-appellant.
In an action pursuant to Village Law §§ 7-714 and 20-2006 to permanentlyenjoin the defendants from commencing operation of a waste transfer station without firstobtaining either a special permit or a use variance, the defendants appeal from so much of anorder of the Supreme Court, Westchester County (Nicolai, J.), entered April 27, 2006, as grantedthe plaintiff's motion for a preliminary injunction enjoining the defendants from commencingoperation of the waste transfer station until a special permit is obtained, and the plaintiffcross-appeals from stated portions of the same order.
Ordered that the cross appeal is dismissed, without costs or disbursements, as the plaintiff isnot aggrieved by the order (see CPLR 5511); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof [*2]enjoining the defendant Northeast Interchange Railway, LLC, andits affiliate RS Acquisition Co., LLC, "from operating a transfer station at the Property withoutfirst obtaining a special permit in accordance with the Village's Zoning Code" and substitutingtherefor a provision enjoining such parties "from operating a transfer station at the Property untilsuch time as the Village recognizes the permissibility of their proposed use, it is judiciallydetermined that they may use the Property for its intended purpose as a matter of right, or a usevariance is obtained"; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
The defendant Greentree Realty, LLC (hereinafter Greentree), owns real property locatedwithin the Light Industrial LI Zoning District in the Village of Croton-on-Hudson (hereinafter theVillage). In 1998 Metro Enviro, LLC (hereinafter Metro Enviro), the tenant in possession of theproperty, applied for and obtained a special permit pursuant to section 230-53(A) (2) of theVillage Code to change from one nonconforming use (wood waste recycling) to another (a solidwaste recyclables handling and processing facility). The special permit was subject to 43conditions. In March 2000 Metro Enviro Transfer, LLC (hereinafter Metro Enviro Transfer),acquired Metro Enviro's assets. In 2003 the Village Board of Trustees (hereinafter the Board)denied Metro Enviro Transfer's application to renew the special permit on the ground that theconditions of the special permit had been violated. The Board's denial of the renewal applicationwas sustained by the Court of Appeals in July 2005 (see Matter of Metro Enviro Transfer, LLC v Village ofCroton-on-Hudson, 5 NY3d 236 [2005]).
In or about August 2005 Metro Enviro Transfer and Greentree commenced an action againstthe Village seeking a judgment declaring that the operation of the facility on the property is apre-existing lawful nonconforming use. By order dated August 25, 2005, the Supreme Courtpreliminarily enjoined the Village from "prohibiting or interfering with Greentree's ability tolease and or operate it's [sic] property for purposes of solid waste management," butdeclined to enjoin the Village from prohibiting or interfering with Metro Enviro Transfer's use ofthe property to operate the facility. Although the Village took an appeal from this order, it laterwithdrew that appeal voluntarily. Metro Enviro Transfer ceased operation at the premises onSeptember 1, 2005.
In November 2005 the chief executive officer of Northeast Interchange Railway, LLC(hereinafter NIR), informed Village officials that NIR intended to recommence the use of theproperty as a transfer station without any further Village approval, asserting that such useconstituted a prior lawful nonconforming use of the property. In response, the Villagecommenced this action pursuant to Village Law §§ 7-714 and 20-2006 topermanently enjoin the defendants from commencing a waste transfer station operation on theproperty without first obtaining either a special permit or a use variance. The Village moved for apreliminary injunction enjoining the defendants from commencing operation of the waste transferstation until a special permit is obtained from the Village. NIR cross-moved to dismiss thecomplaint or, in the alternative, to consolidate this action with the action for a declaratoryjudgment that had been commenced by Greentree. The Supreme Court granted the Village'smotion, denied that branch of the cross motion which was to dismiss the complaint and, in effect,granted that branch of the cross motion which was to consolidate the two actions to the extent ofdirecting that the two actions be jointly tried. Greentree and NIR appeal from so much of theorder of the Supreme Court as granted the Village's motion for a preliminary injunction. Wemodify the terms of the preliminary injunction and affirm the granting of the preliminaryinjunction as so modified.
A municipality is entitled to an injunction prohibiting a use that is not permitted under [*3]the applicable zoning law upon establishing a likelihood of successon the merits and a balancing of the equities in its favor (see Village Law § 7-714;Village of Chestnut Ridge v Roffino, 306 AD2d 522, 524 [2003]; Incorporated Vil. ofFreeport v Jefferson Indoor Marina, 176 AD2d 783 [1991]). Here, the Village did so bydemonstrating the justified denial of the renewal permit and that the status quo would bepreserved by prohibiting the use during the pendency of this proceeding.
The injunction should not, however, have required NIR and its affiliate, RS Acquisition Co.,LLC (hereinafter RSA), to obtain a special permit pursuant to section 230-53 (A) (2) of theVillage Code. Such a special permit is available, by its terms, only where there is a change in theproposed use. Here, NIR and RSA propose to continue the use that had been in place prior to theexpiration of the special permit, not to change it. The use was nevertheless properly enjoineduntil such time as the Village recognizes the permissibility of the proposed use, it is judiciallydetermined that NIR and RSA may use the property for its intended purpose as a matter of right,or a use variance is obtained.
Since the defendants failed to appeal from so much of the court's order as denied that branchof their cross motion which was to dismiss the complaint, their argument that the court shouldhave granted that branch of their cross motion is not properly before this Court (seeCPLR 5515 [1]; Nobre v NynexCorp., 2 AD3d 602, 604 [2003]; City of Mount Vernon v Mount Vernon Hous.Auth., 235 AD2d 516, 516-517 [1997]).
The Village's cross-appeal from so much of the order as "holds that the Village ofCroton-on-Hudson's denial of [Metro Enviro Transfer's] renewal application did not extinguishthe prior nonconforming use on the subject property and 'did not eviscerate the protected propertyrights at issue,' " must be dismissed. Only a party that is aggrieved by an order may appeal from it(see CPLR 5511). A party that has been granted the relief it sought on a motion is notaggrieved by the order granting that relief (see Parochial Bus Sys. v Board of Educ. of City ofN.Y., 60 NY2d 539, 544-545 [1983]), even if the order contains language that the partyconsiders to be objectionable (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68NY2d 465, 472-473 [1986]). Here, the Village sought only an injunction against the use of theproperty without a special permit. Since the Supreme Court granted that relief, the Village is notaggrieved by the Supreme Court's order.[*4]
Motion by the appellants-respondents on appeals and across appeal from an order of the Supreme Court, Westchester County, entered April 27, 2006, todismiss the cross appeal on the ground that the respondent-appellant is not aggrieved by theorder. By decision and order on motion of this Court dated September 25, 2006, inter alia, themotion was held in abeyance, and was referred to the Justices hearing the appeals and crossappeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal and cross appeal, it is
Ordered that the motion is denied as academic. Spolzino, J.P.,Ritter, Dillon and Dickerson, JJ., concur.