Posted by: Patricia Salkin | November 26, 2010

NY Appeals Court Upholds Approval of Motorcycle Track on Farm Agreeing with Board’s Interpretation of Recreational Use

The Wilzigs purchased a 250-acre farm in the Town of Tafhkanic in order to build a motorcycle track on the premises. However, as the track was being completed, Callahan, Tachkanic’s Code Enforcement Officer and Building Inspector, contended that the track was in violation of the Tachkanic’s Use Regulations and, therefore, issued an “Order to Remedy Violation.” In response, the Wilzigs appealed, maintaining that the track was an accessory use of their property and that, therefore, a permit was not required for its construction. The Zoning Board of Appeals for the Town disagreed with this interpretation, and the Wilzigs brought a combined CPLR article 78 proceeding and declaratory judgment action. The trial court dismissed the claim. 

The Wilzigs then petitioned Callahan to conclude whether their motorcycle track would meet the criteria of a “recreational use” under the Town’s zoning ordinance. He decided that although it could be considered recreational use, the Wilzigs first would have to obtain approval from the planning board. At this time, Petitioners, the Granger Group, “an ‘association formed for the purpose of insuring fair and reasonable enforcement of land use regulations in the Town,’” appealed the decision. However, while the Granger Group’s appeal was pending, the Planning Board approved the Wilzig’s racetrack, and the Granger Group commenced an action for declaratory judgment in order to obtain a permanent injunction against the Wilzigs use of the track, a CPLR article 78 proceeding in order to annul the Planning Board’s decision, and a combined CPLR 78 proceeding and declaratory judgment action challenging the Board’s decision regarding recreational use of the property.

The trial court found in favor of the Granger Group, specifically concluding that the Wilzigs were “barred by res judicata” when they applied for a recreational use permit and that they were banned “from ever using the racetrack or completing its construction.” The Court determined that the Wilzigs should have claimed that the racetrack was for recreational use purposes in their response to the initial notice that they were in violation of the Town’s Use Regulations. The Court found that “the Wilzig’s 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.” However, the Appellate Division stated that “[t]o require a property owner in such a circumstance to raise all possible claims that they might have under the zoning ordinance would be undoubtedly onerious and, in our view, established a process that fails to account for the ‘peculiar necessities’ that are inherent in these administrative proceedings.” 

The Granger Group also challenged the Board’s determination that the track was a recreational use under the Town’s zoning ordinance.  The appeals court found that the Planning Board’s interpretation of recreational use (defined as “private, non-commercial recreational purposes”) was reasonable in relation to the racetrack. 

The Group also maintained that the Board did not consider the environmental impact of the Wilzig’s racetrack, as is required by SEQRA. However, evidence revealed that the Planning Board hired experts, reviewed documents thoroughly, and issued a twenty-three page report before approving the track. In fact, they even hired professional engineers who concluded that “‘the track will have a minimal impact upon the sound levels and receiving locations.” The Court found that the site plan was modified during the review process which “‘represented a reasonable attempt to address some of these concerns and were ‘part of the give and take’ of the application process.’” 

Granger Group, et al. v. Town of Tachkanic, 2010 WL 4117473 (N.Y.A.D. 3 Dept., 10/21/2010) 

The opinion can be accessed at:


  1. I agree with the court. The liberal use of Res Judicata in cases dealing with the application of zoning ordinances would work hardship on property owners and interested parties alike. To hold that the use in controversy does not conform to a particular permitted use is not the same as holding that the use in controversy does to conform to any of the permitted uses/schemes. To deny a party the subsequent opportunity to show that their use is consistent with another permitted use/scheme would effectuate a result not intended by the drafters in that it further limits the use of property beyond the measures outlined in the ordinance.

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