| Matter of Granger Group v Town of Taghkanic |
| 2010 NY Slip Op 07457 [77 AD3d 1137] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Granger Group et al., Respondents, v Town ofTaghkanic et al., Respondents, and Alan Wilzig et al., Appellants. |
—[*1] Warren S. Replansky, P.C., Pine Plains (Warren S. Replansky of counsel), for GrangerGroup and others, respondents.
Kavanagh, J. Appeals (1) from an order of the Supreme Court (McGrath, J.), entered June 5,2009 in Columbia County, which, in a combined proceeding pursuant to CPLR article 78 andaction for declaratory judgment, among other things, granted petitioners' motion for a preliminaryinjunction, and (2) from a judgment of said court, entered January 8, 2010 in Columbia County,which, among other things, granted petitioners' application to, among other things, permanentlyenjoin respondents Town of Taghkanic Planning Board and Dennis Callahan from issuing abuilding permit, certificate of compliance, certificate of occupancy or site plan approval torespondents Alan Wilzig and Karin Wilzig.
After they purchased a 250-acre farm in the Town of Taghkanic, Columbia County,respondents Alan Wilzig and Karin Wilzig began to construct a motorcycle track on the property.In July 2006, when the racetrack was substantially completed, respondent Dennis Callahan, theTown's Code Enforcement Officer and Building Inspector, issued an "Order to Remedy [*2]Violation," which alleged that construction of the racetrack was a"violation of the Town['s] Use Regulations." The Wilzigs appealed this determination torespondent Town of Taghkanic Zoning Board of Appeals (hereinafter ZBA), claiming that thetrack was an accessory use of their property and a permit was not required for itsconstruction.[FN1]The ZBA disagreed,[FN2]prompting the Wilzigs to commence a combined declaratory judgment action and CPLR article78 proceeding that, in effect, sought to annul the ZBA's finding that the racetrack was not anaccessory use of their property. Supreme Court (Hummel, J.) found that the ZBA's determinationwas not arbitrary and capricious and dismissed the Wilzigs' petition/complaint.[FN3]
Subsequently, the Wilzigs sought a determination from Callahan as to whether the racetrackcould qualify as a recreational use of their property under the Town's zoning ordinance. Callahandetermined that it could be a recreational use, but that site plan approval had to be first obtainedfrom respondent Town of Taghkanic Planning Board. Petitioners, nearby landowners and theGranger Group, an "association formed for the purpose of insuring fair and reasonableenforcement of land use regulations in the Town of Taghkanic," appealed this decision byCallahan to the ZBA, which denied the appeal. While that appeal was pending, the Wilzigssubmitted their site plan to the Planning Board, which conducted a review pursuant to the StateEnvironmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]), andsubsequently granted site plan approval.
In response to this finding, petitioners commenced the following proceedings/actions: (1) adeclaratory judgment action seeking, among other things, an order that the racetrack was not anauthorized use of the Wilzigs' property under the Town's zoning ordinance and a preliminary andpermanent injunction prohibiting the Wilzigs from using it; (2) a CPLR article 78 proceeding to,among other things, annul the Planning Board's approval of the site plan; and (3) a combinedCPLR article 78 proceeding and action for declaratory judgment challenging the ZBA's findingthat the racetrack could constitute a recreational use of the Wilzigs' property under the Town'szoning ordinance.[FN4]While these proceedings were pending, Supreme Court (McGrath, J.) issued [*3]a preliminary injunction enjoining the Wilzigs from using theracetrack and completing its construction. After the parties stipulated to consolidating all threeproceedings, Supreme Court found that the Wilzigs were barred by res judicata from submittingan application to Callahan for a permit to construct a racetrack as a recreational use of theirproperty and issued a permanent injunction banning the Wilzigs from ever using the racetrack orcompleting its construction. The Wilzigs now appeal from Supreme Court's order andjudgment.[FN5]
In finding that res judicata applied to this proceeding, Supreme Court concluded that whenthe Wilzigs appealed Callahan's initial notice to the ZBA claiming that construction of theracetrack was a "violation of the Town['s] Use Regulations" and instituted their CPLR article 78proceeding, they should have claimed that the racetrack was not only an accessory use of theirproperty under the Town's zoning ordinance, but a recreational use as well. In that regard, it mustbe noted that the Wilzigs could not have made such a claim in the CPLR article 78 proceedingbecause that proceeding was strictly limited by what transpired before the ZBA when it affirmedCallahan's initial determination that the racetrack was not an accessory use of the Wilzigs'property and could not be constructed without a permit (see Matter of Kaufman v Incorporated Vil. of Kings Point, 52 AD3d604, 607 [2008]; Matter of Klingaman v Miller, 168 AD2d 856, 857 [1990]).Moreover, before res judicata can be applied to an administrative determination (see Ryan vNew York Tel. Co., 62 NY2d 494, 499 [1984]; Matter of Siegel v Zoning Bd. of Appeals of Vil. of Irvington, 73 AD3d936, 937 [2010]), " 'it is necessary to determine whether to do so would be consistent withthe function of the administrative agency involved, the peculiar necessities of the particular case,and the nature of the precise power being exercised' " (Matter of Josey v Goord, 9 NY3d 386, 390 [2007], quotingMatter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520, 524 [1978];see Borchers and Markell, New York State Administrative Procedure and Practice§ 3.23, at 76 [2d ed] ["preclusion must make sense within the overall context of theagency's procedures" (internal quotation marks and citation omitted)]).
Here, Supreme Court found that the Wilzigs were required to raise all possible permissibleuses of their property under the zoning ordinance—including whether it qualified as arecreational use—when they first challenged Callahan's determination that construction ofthe racetrack required a permit. However, to qualify as a recreational use of their property, theTown's zoning ordinance requires that site plan approval be first obtained from the PlanningBoard after it conducts a SEQRA review to determine the proposal's environmental impact. Evenhad the Wilzigs argued—when they first appeared before the ZBA to challenge Callahan's"order to remedy"—that the racetrack was a recreational use of their property, such a claimwould have been rejected because a site plan had not been approved and the requisite SEQRA[*4]review had not been conducted.[FN6]To require a property owner in such a circumstance to raise all possible claims that they mighthave under the zoning ordinance would be undoubtedly onerous[FN7]and, in our view, establishes a process that fails to account for the "peculiar necessities" that areinherent in these administrative proceedings (compare Bonded Concrete, Inc. v Town of Saugerties, 24 AD3d943, 944-945 [2005]).
Petitioners also argue that the ZBA's decision to permit a racetrack as a recreational use onthe Wilzigs' property represented an irrational interpretation of the Town's zoning ordinance (see Matter of Rivendell Winery, LLC vDonovan, 74 AD3d 1594, 1594-1595 [2010]; Matter of Ohrenstein v Zoning Bd. of Appeals of Town of Canaan, 39AD3d 1041, 1041-1042 [2007]). However, the Town's ordinance does provide that "club orrecreation" uses of property are permitted in the district (see Zoning Ordinance of theTown of Taghkanic, § III [A]) and, while it does not define what would constitute arecreational use, it does require that any words not so defined "shall carry their customarymeanings" (Zoning Ordinance of the Town of Taghkanic, § XI). The ZBAconcluded—quite reasonably in our view—that the racetrack constituted arecreational use of the Wilzigs' property because it would be used for "private, non-commercialrecreational purposes including, but not limited to, jogging, bicycle riding, skateboarding,rollerblading and riding vintage motorcycles" and, as such, fell within the customary meaning ofrecreation as that term is used in the zoning ordinance (see Matter of West Beekmantown Neighborhood Assn., Inc. v Zoning Bd.of Appeals of Town of Beekmantown, 53 AD3d 954, 956 [2008]; Matter of Committee to Protect Overlook,Inc. v Town of Woodstock Zoning Bd. of Appeals, 24 AD3d 1103, 1104-1105 [2005],lv denied 6 NY3d 714 [2006]; Matter of Haas Hill Prop. Owners' Assn. v Zoning Bd.of Appeals of Town of New Baltimore, 202 AD2d 895, 896-897 [1994]; see also Matter of Smith v Town ofPlattekill, 13 AD3d 695, 697 [2004] [racetrack was found to be an "amusement orrecreation use" under a town's zoning ordinance]).
Petitioners also claim that, in its decision to grant site plan approval,[FN8]the Planning [*5]Board failed to take a hard look at the racetrackand the impact it would have on the surrounding environment as required by SEQRA. "Judicialreview of an agency determination under [SEQRA] is limited to whether the agency identifiedthe relevant areas of environmental concern, took a hard look at them, and made a reasonedelaboration of the basis for its determination" (Matter of Residents for Responsible Govt. v Grannis, 75 AD3d963, 966 [2010] [internal quotation marks and citations omitted]). Such a decision "shouldbe annulled only if it is arbitrary, capricious or unsupported by the evidence" (Matter of Riverkeeper, Inc. v Planning Bd.of Town of Southeast, 9 NY3d 219, 231-232 [2007]; see Matter of Mirabile v City of Saratoga Springs, 67 AD3d 1178,1180-1181 [2009]).
After classifying the Wilzigs' proposed use of their property as a SEQRA type I action anddeclaring that it would be the lead agency for this proposal, the Planning Board identified thoseareas of the environment that could be adversely affected if a racetrack were to be located ontheir property (see 6 NYCRR 617.2 [u]; 617.4 [b] [2], [3], [6] [i]). It retained the servicesof a professional engineer, a certified professional planner and a land use attorney and, with theirassistance, reviewed a variety of documents, including an environmental assessment statement,site plans, maps, photographs, drawings, as well as technical reports regarding the noise to begenerated by the racetrack, and its potential impact on wetlands, wildlife and farming in the area.The Planning Board visited the site, held public hearings and coordinated its review of thisproposal with other interested governmental agencies, including the United States Army Corps ofEngineers, the New York State Department of Environmental Conservation and the ColumbiaCounty Planning Board. As for noise—a primary concern of petitioners—thePlanning Board reviewed studies prepared by noise consultants and professional engineers,which concluded that "the track will have a minimal impact upon sound levels and receivinglocations." In addition, the Wilzigs agreed not only to restrictions being placed on their use of theracetrack, but also to construct a sound berm on the west side of the racetrack to absorb some ofthe noise generated by it.[FN9]Finally, when completing its review, the Planning Board issued a 23-page negative declarationdetailing why the racetrack would not have a significant environmental impact on thesurrounding community (see 6 NYCRR 617.7; Matter of Citizens for Responsible Zoning v Common Council of City ofAlbany, 56 AD3d 1060, 1061-1062 [2008]). In our view, this record establishes that thePlanning Board took a "hard look" at those areas that could be implicated by the construction ofthe racetrack on the Wilzigs' property and satisfied its statutory responsibilities under SEQRA(see 6 NYCRR 617.3 [c] [1]; Matter of Citizens for Responsible Zoning v CommonCouncil of City of Albany, 56 AD3d at 1061-1062; Matter of Friends of the Shawangunks, Inc. v Zoning Bd. of Appeals ofTown of Gardiner, 56 AD3d 883, 885 [2008]).
Petitioners also contend that the Planning Board impermissibly issued the functionalequivalent of a conditional negative declaration in this SEQRA type I action (see 6NYCRR [*6]617.2 [h]; 617.7 [d]; Matter of Waste Mgt. ofN.Y. v Doherty, 267 AD2d 464, 465 [1999]). While it is true that a "negative declaration bya lead agency may not be subject to conditions, a type I action subject to SEQRA may bemodified during the approval process and still receive a negative declaration" (Matter ofHoffman v Town Bd. of Town of Queensbury, 255 AD2d 752, 753 [1998], lv denied93 NY2d 803 [1999]; see Matter of Merson v McNally, 90 NY2d 742, 752-753 [1997]).Here, the site plan as originally proposed by the Wilzigs was modified during the review processto address ongoing concerns and, in particular, the noise that would be created by the racetrack'suse. These modifications represented a reasonable attempt to address some of these concerns andwere "part of the 'give and take' of the application process" (id. at 753).
Finally, the Wilzigs ask us to declare that the preliminary injunction was improperly issuedand that they are entitled to damages for the loss they sustained while it was in place. They claimthat petitioners' request for a preliminary injunction was based solely upon the affirmation of anattorney and was issued prematurely (see CPLR 6312). In fact, in support of theirapplication for a preliminary injunction, petitioners submitted, in addition to counsel's affidavit, averified complaint and numerous exhibits that provided a factual basis for the claims made intheir application regarding the racetrack's impact on the surrounding community. Moreover, itwas issued after the Planning Board granted site plan approval for the project. For this reason, thepreliminary injunction was not premature, nor was it improperly granted. Finally, as a result ofthe decision reached herein, we need not address the merits of the Wilzigs' challenge to thebroadness of the permanent injunction.
Cardona, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur. Ordered that the appeal from theorder is dismissed, without costs. Ordered that the judgment is reversed, on the law, withoutcosts, permanent injunction vacated and petition dismissed.
Footnote 1: During that same time period,the Wilzigs obtained permits to renovate certain buildings on the property and expand an existingpond.
Footnote 2: When it denied the Wilzigs'appeal that the racetrack was an accessory use, the ZBA specifically "advised the Wilzigs thattheir proposed sporting course . . . could be considered a recreational use under theTown's zoning ordinance subject to site plan approval."
Footnote 3: The Wilzigs never perfected anappeal from Supreme Court's judgment dismissing this CPLR article 78 proceeding.
Footnote 4: In a separate proceeding, thisCourt affirmed Supreme Court's (Hummel, J.) dismissal of petitioners' challenge to a decision byCallahan to issue a building permit to allow the Wilzigs to construct a storage facility on theproperty (Matter of Granger Group vZoning Bd. of Appeals of Town of Taghkanic, 62 AD3d 1102 [2009]).
Footnote 5: The Wilzigs' appeal from thenonfinal order must be dismissed because "the right to appeal from [such] order terminates uponthe entry of a final judgment" (Neissel vRensselaer Polytechnic Inst., 54 AD3d 446, 449 n 3 [2008] [internal quotation marksand citations omitted], lv denied 11 NY3d 716 [2009]). Their appeal from the finaljudgment, however, brings this order up for review (see id.).
Footnote 6: We also note that when itrejected petitioners' res judicata argument, the ZBA, in an attempt to clarify its prior ruling, foundthat it was unable at that time to determine that the track was a recreational use of the Wilzigs'property because Callahan had not made any such determination nor had site plan approval beenobtained from the Planning Board.
Footnote 7: For example, a site plan perTown Law § 274-a (1) must be "prepared to specifications and contain[ ] necessaryelements, as set forth in the applicable zoning ordinance or local law, which shows thearrangement, layout and design of the proposed use of the single parcel of land as shown on saidplan."
Footnote 8: As the record is sufficientlydeveloped to assess petitioners' claim regarding the alleged deficiencies in the site plan andSEQRA process, we conclude that judicial economy is best served by our addressing the meritsof these claims in the context of this appeal (see Matter of Saratoga Lake Protection & Improvement Dist. v Departmentof Pub. Works of City of Saratoga Springs, 46 AD3d 979, 987 [2007], lv denied10 NY3d 706 [2008]; compare Matter ofHerman v Incorporated Vil. of Tivoli, 45 AD3d 767, 769 [2007]).
Footnote 9: In addition to banning lightingor any commercial use of the racetrack, the Planning Board, in its approval of the site plan,imposed certain noise monitoring requirements, placed restrictions on the days and hours thetrack could be in use, limited the number of vehicles that could be on it at any one time (four),and required that all motorcycles use factory-installed exhaust and muffler systems.