Micklas v. Town of Halfmoon Planning Bd.
| Decision Date | 28 March 2019 |
| Docket Number | 527391 |
| Citation | 170 A.D.3d 1483,97 N.Y.S.3d 339 |
| Parties | In the Matter of Joseph J. MICKLAS Jr. et al., Appellants, v. TOWN OF HALFMOON PLANNING BOARD et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
170 A.D.3d 1483
97 N.Y.S.3d 339
In the Matter of Joseph J. MICKLAS Jr. et al., Appellants,
v.
TOWN OF HALFMOON PLANNING BOARD et al., Respondents.
527391
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: February 13, 2019
Decided and Entered: March 28, 2019
Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Jacquelyn P. White of counsel), for appellants.
Lyn A. Murphy, Halfmoon, for Town of Halfmoon Planning Board and another, respondents.
Whiteman Osterman & Hanna LLP, Albany (John J. Henry of counsel), for The Fairways of Halfmoon, LLC, respondent.
Before: Garry, P.J., Egan Jr., Lynch, Devine and Rumsey, JJ.
MEMORANDUM AND ORDER
Devine, J.
Appeals (1) from an order of the Supreme Court (Buchanan, J.), entered December 1, 2017 in Saratoga County, which, in a proceeding pursuant to CPLR article 78, denied petitioners' motion for a preliminary injunction, and (2) from a
judgment of said court, entered February 5, 2018 in Saratoga County, which, among other things, dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Town of Halfmoon Planning Board granting a request by respondent The Fairways of Halfmoon, LLC for a special use permit.
Respondent The Fairways of Halfmoon, LLC (hereinafter Fairways) operates a golf course with a building containing its clubhouse and pro shop, as well as a restaurant, bar and banquet house, in the Town of Halfmoon, Saratoga County. By 1999, Fairways had secured from respondent Town of Halfmoon Planning Board the special use permit and site plan approval for those uses demanded by chapter 165 of the Code of the Town of Halfmoon (hereinafter zoning code). In 2017, Fairways
applied for an amendment to the existing site plan and a special use permit to, as is relevant here, build an addition to the existing bar and restaurant where beer would be brewed for patrons' purchase and consumption. Petitioners own and/or reside on property nearby, and two of them, Joseph J. Micklas Jr. and James Frederick Hopeck, opposed the applications on the grounds that the proposed brewpub was not a permitted use in the subject Agriculture–Residence (hereinafter A–R) zoning district and that a brewpub would negatively affect the character of the neighborhood. The Planning Board issued the permit and amended the site plan with conditions in May 2017.
Following that determination, Micklas wrote letters to the Town of Halfmoon Director of Code Enforcement (hereinafter Director) asking whether any brewpub could be built in an A–R district "in accordance with the Town of Halfmoon Building Code." The Director responded that the building code did not speak to where a building could be constructed, then added in a second letter that his office did not deal with zoning issues and that such questions must be directed to the Planning Board. In September 2017, respondent Town of Halfmoon Zoning Board of Appeals (hereinafter ZBA) upheld the Director's interpretation.
Petitioners commenced two CPLR article 78 proceedings, one challenging the Planning Board's determination and the other challenging the ZBA's determination. They unsuccessfully moved for a preliminary injunction barring construction of the approved addition, and the matters were consolidated. Supreme Court then dismissed the consolidated proceeding. Petitioners appeal from the order denying a preliminary injunction as well as the final judgment.
Initially, petitioners' appeal from the order denying their motion
for a preliminary injunction must be dismissed, as no appeal lies as of right from a nonfinal order in a CPLR article 78 proceeding (see CPLR 5701[b][1] ; Matter of Fischer v. Nyack Hosp., 140 A.D.3d 1264, 1265 n. 2, 32 N.Y.S.3d 714 [2016] ; Matter of Ballard v. New York Safety Track LLC, 126 A.D.3d 1073, 1074 n. 2, 5 N.Y.S.3d 542 [2015] ). Petitioners could have advanced any issues regarding that order on their appeal from the final judgment (see Matter of Fischer v. Nyack Hosp., 140 A.D.3d at 1265 n. 2, 32 N.Y.S.3d 714 ), but failed to brief those issues and have therefore abandoned them (see Board of Trustees of the Vil. of Groton v. Pirro, 152 A.D.3d 149, 153 n. 1, 58 N.Y.S.3d 614 [2017] ).
Moving on to the appeal from the final judgment, we reject respondents' threshold contention that it is either moot or barred by laches. The fact that Fairways has substantially completed the brewpub does not render the appeal moot, as the addition could still be razed or the brewing operations within it enjoined (see Town of N. Elba v. Grimditch, 131 A.D.3d 150, 156, 13 N.Y.S.3d 601 [2015], lv denied 26 N.Y.3d 903, 2015 WL 5150754 [2015] ; Matter of Kowalczyk v. Town of Amsterdam Zoning Bd. of Appeals, 95 A.D.3d 1475, 1477, 944 N.Y.S.2d 660 [2012] ). Petitioners promptly challenged the approvals issued by the Planning Board and moved for preliminary injunctive relief after Fairways obtained a building permit and began construction work (see Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn., 2 N.Y.3d 727, 729, 778 N.Y.S.2d 740, 811 N.E.2d 2 [2004] ; Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172–173, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ). Supreme Court did not grant the
requested preliminary injunction, but also made clear that injunctive relief remained a possibility if petitioners ultimately prevailed and that Fairways had "every incentive to limit its construction activity" in the meantime. Fairways was accordingly "on notice that completion was undertaken at its own risk," and we cannot say that this appeal, which petitioners perfected in a timely fashion, is moot ( Matter of Hart Family, LLC v. Town of Lake George, 110 A.D.3d 1278, 1278 n. 1, 974 N.Y.S.2d 154 [2013] ; see Town of N. Elba v. Grimditch, 131 A.D.3d at 157, 13 N.Y.S.3d...
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