Granger Group v. Town of Taghkanic

• Decision Date: 21 October 2010
• Citation: 909 N.Y.S.2d 556,77 A.D.3d 1137
• Parties: In the Matter of GRANGER GROUP et al., Respondents, v. TOWN OF TAGHKANIC et al., Respondents, and Alan Wilzig et al., Appellants.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 556

77 A.D.3d 1137

In the Matter of GRANGER GROUP et al., Respondents,

v. TOWN OF TAGHKANIC et al., Respondents,andAlan Wilzig et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 21, 2010.

Whiteman, Osterman & Hanna, L.L.P., Albany (John J. Henry of counsel), for appellants.

Warren S. Replansky, P.C., Pine Plains (Warren S. Replansky of counsel), for Granger Group and others, respondents.

Before: CARDONA, P.J., LAHTINEN, KAVANAGH, McCARTHY and EGAN JR., JJ.

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 and action for declaratory judgment, among other things, granted petitioners' motion for a preliminary injunction, and (2) from a judgment of said court, entered January 8, 2010 in ColumbiaCounty, which, among other things, granted petitioners' application to, among other things, permanently enjoin respondents Town of Taghkanic Planning Board and Dennis Callahan from issuing a building permit, certificate of compliance, certificate of occupancy or site plan approval to respondents 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, the Town'sCode Enforcement Officer and Building Inspector, issued an "Order to Remedy Violation," which alleged that construction of the racetrack was a "violation of the Town['s] Use Regulations." The Wilzigs appealed this determination to respondent Town of Taghkanic Zoning Board of Appeals (hereinafter ZBA), claiming that the track was an accessory use of their property and a permit was not required for its construction.¹ The ZBA disagreed,² prompting the Wilzigs to commence a combined declaratory judgment action and CPLR article 78 proceeding that, in effect, sought to annul the ZBA's finding that the racetrack was not an accessory use of their property. Supreme Court (Hummel, J.) found that the ZBA's determination was not arbitrary and capricious and dismissed the Wilzigs' petition/complaint.³

Subsequently, the Wilzigs sought a determination from Callahan as to whether the racetrack could qualify as a recreational use of their property under the Town's zoning ordinance. Callahan determined that it could be a recreational use, but that site plan approval had to be first obtained from respondent Town of Taghkanic Planning Board. Petitioners, nearby landowners and the Granger Group, an "association formed for the purpose of insuring fair and reasonable enforcement of land use regulations in the Town of Taghkanic," appealed this decision by Callahan to the ZBA, which denied the appeal. While that appeal was pending, the Wilzigs submitted their site plan to the Planning Board, which conducted a review pursuant to the State Environmental Quality Review Act ( see ECL art. 8 [hereinafter SEQRA] ), and subsequently granted site plan approval.

In response to this finding, petitioners commenced the following proceedings/actions: (1) a declaratory judgment action seeking, among other things, an order that the racetrack was not an authorized use of the Wilzigs' property under the Town's zoning ordinance and a preliminary and permanent 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 combined CPLR article 78 proceeding and action for declaratory judgment challenging the ZBA's finding that the racetrack could constitute a recreational use of the Wilzigs' property under the Town's zoning ordinance.⁴ While these proceedings were pending, Supreme Court (McGrath, J.) issued a preliminary injunction enjoining the Wilzigs from using the racetrack and completing its construction. After the parties stipulated to consolidating all three proceedings, Supreme Court found that the Wilzigs were barred by res judicata from submitting an application to Callahan for a permit to construct a racetrack as a recreational use of their property and issued a permanent injunction banning the Wilzigs from ever usingthe racetrack or completing its construction. The Wilzigs now appeal from Supreme Court's order and judgment.⁵

In finding that res judicata applied to this proceeding, Supreme Court concluded that when the Wilzigs appealed Callahan's initial notice to the ZBA claiming that construction of the racetrack was a "violation of the Town['s] Use Regulations" and instituted their CPLR article 78 proceeding, they should have claimed that the racetrack was not only an accessory use of their property under the Town's zoning ordinance, but a recreational use as well. In that regard, it must be noted that the Wilzigs could not have made such a claim in the CPLR article 78 proceeding because that proceeding was strictly limited by what transpired before the ZBA when it affirmed Callahan'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 A.D.3d 604, 607, 860 N.Y.S.2d 573 [2008]; Matter of Klingaman v. Miller, 168 A.D.2d 856, 857, 564 N.Y.S.2d 526 [1990] ). Moreover, before res judicata can be applied to an administrative determination ( see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 499, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984]; Matter of Siegel v. Zoning Bd. of Appeals of Vil. of Irvington, 73 A.D.3d 936, 937, 899 N.Y.S.2d 862 [2010] ), " 'it is necessary to determine whether to do so would be consistent with the 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 N.Y.3d 386, 390, 849 N.Y.S.2d 497, 880 N.E.2d 18 [2007], quoting Matter of Venes v. Community School Bd. of Dist. 26, 43 N.Y.2d 520, 524, 402 N.Y.S.2d 807, 373 N.E.2d 987 [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 the agency's procedures" (internal quotation marks and citation omitted) ] ).

Here, Supreme Court found that the Wilzigs were required to raise all possible permissible uses of their property under the zoning ordinance-including whether it qualified as a recreational use-when they first challenged Callahan's determination that construction of the racetrack required a permit. However, to qualify as a recreational use of their property, the Town's zoning ordinance requires that site plan approval be first obtained from the Planning Board after it conducts a SEQRA review to determine the proposal's environmental impact. Even had 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 claim would have been rejected because a site plan had not been approved and the requisite SEQRA review had not been conducted.⁶ To require a property owner in such a circumstance to raise all possible claimsthat they might have under the zoning ordinance would be undoubtedly onerous ⁷ and, in our view, establishes a process that fails to account for the "peculiar necessities" that are inherent in these administrative proceedings ( compare Bonded Concrete, Inc. v. Town of Saugerties, 24 A.D.3d 943, 944-945, 805 N.Y.S.2d 684 [2005] ).

Petitioners also argue that the ZBA's decision to permit a racetrack as a recreational use on the Wilzigs' property represented an irrational interpretation of the Town's zoning ordinance ( see Matter of Rivendell Winery, LLC v. Donovan, 74 A.D.3d 1594, 1594-1595, 903 N.Y.S.2d 597 [2010]; Matter of Ohrenstein v. Zoning Bd. of Appeals of Town of Canaan, 39 A.D.3d 1041, 1041-1042, 833 N.Y.S.2d 763 [2007] ). However, the Town's ordinance does provide that "club or recreation" uses of property are permitted in the district ( see Town of Taghkanic Zoning Ordinance, III[A] ) and, while it does not define what would constitute a recreational use, it does require that any words not so defined "shall carry their customary meanings" (Town of Taghkanic Zoning Ordinance, XI). The ZBA concluded-quite reasonably in our view-that the racetrack constituted a recreational use of the Wilzigs' property because it would be used for "private, non-commercial recreational purposes including, but not limited to, jogging, bicycle riding, skateboarding, rollerblading and riding vintage motorcycles" and, as such, fell within the customary meaning of recreation 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 A.D.3d 954, 956, 861 N.Y.S.2d 864 [2008]; Matter of Committee to Protect Overlook, Inc. v. Town of Woodstock Zoning Bd. of Appeals, 24 A.D.3d 1103, 1104-1105, 806 N.Y.S.2d 748 [2005], lv. denied 6 N.Y.3d 714, 823 N.Y.S.2d 355, 856 N.E.2d 919 [2006]; Matter of Haas Hill Prop. Owners' Assn. v. Zoning Bd. of Appeals of Town of New Baltimore, 202 A.D.2d 895, 896-897, 609 N.Y.S.2d 416 [1994]; see also Matter of Smith v. Town of Plattekill, 13 A.D.3d 695, 697, 787 N.Y.S.2d 406 [2004] [racetrack was found to be an "amusement or recreation use" under a town's zoning ordinance] ).

Petitioners also claim that, in its decision to grant site plan approval,⁸ the Planning Board failed to take a hard look at the racetrack and the impact it would have on the surrounding environment as required by SEQRA. "Judicial review of an agency determination under [SEQRA] is limited to whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its...