Bonded Concrete, Inc. v. Town of SaugertiesBonded Concrete, Inc. v. Town of Saugerties
Appeal from an order of the Supreme Court (Connor, J.), entered November 15, 1999 in Ulster County, which, inter alia, denied plaintiffs motion for summary judgment on the issue of liability.
This appeal centers on plaintiffs ongoing efforts to place a concrete manufacturing plant and equipment on its industrially zoned property located in the Town of Saugerties, Ulster
To summarize with regard to the first lawsuit, plaintiff initially applied to defendant Tоwn of Saugerties in June 1998 for site plan approval to construct a permanent concrete plant at this site, although that application was quickly withdrawn (June 17, 1998); while that application was pending, plaintiff undertook installаtion of mobile, portable concrete batch equipment at the site. After defendant Paul Andreassen, the Town Building Inspector, issued a stop work order dated June 4, 1998 (hereinafter the first SWO) based on the claim that the mobile plant violated the height restrictions in the Town Zoning Law, plaintiff commenced the first lawsuit — a combined CPLR article 78 proceeding and action for declaratory judgment against the Town and its Building Inspector — seeking, inter alia, (1) a deсlaration that the mobile plant was not subject to site plan approval or the height restrictions in the Town Zoning Law, and (2) a judgment that the Town lacked authority to issue the first SWO and striking that order. Subsequently, Supreme Court issued a рreliminary injunction dated July 2, 1998 enjoining plaintiff from manufacturing concrete or assembling a concrete plant on the property pending the court’s determination of the first action/proceeding.
As noted, plаintiff withdrew its application for site plan approval for the proposed permanent plant and redesigned and constructed its mobile concrete plant to comply with the height restrictions contаined in the zoning ordinance, obtaining a certificate of occupancy (hereinafter the CO) from the Town Building Inspector on July 13, 1998. When defendants John Marino and Joseph Marino, the adjacent landowners, appealed the Town’s issuance of the CO to the Town Zoning Board of Appeals (hereinafter ZBA), the Town issued a second SWO, dated July 17, 1998, directing plaintiff to cease all concrete production at the site pending a determination on the Marinos’ ZBA appeal, relying on Town Law § 267-a (6) and Town Zoning Law § 7.5.2, each of which provide for a stay of proceedings pending an appeal to the ZBA.
Plaintiff then commenced its second lawsuit on July 21, 1998 solely seeking a declaration that neither Town Zoning Law § 7.5.2 nor Town Law § 267-a (6) — on which the Town, in its second SWO, had exclusively relied — effected a
By decision and order dated September 3, 1998, Supreme Court, inter alia, (1) grantеd the Marinos’ motion to consolidate the first and second lawsuits (hereinafter referred to as the consolidated action) and, to protect their counterclaim, (2) denied plaintiff’s motion to discontinue the first lаwsuit, which plaintiff had submitted was moot since it had constructed a mobile plant in compliance with the height restrictions contained in the Town Zoning Law. Importantly, Supreme Court further ruled that while the Marinos’ third-party appeal to the ZBA did not automatically stay plaintiff’s concrete producing activity — interpreting Town Law § 267-a (6) and Town Zoning Law § 7.5.2 consistent with Town of Groton v Langer (175 Mise 2d 47) — the court’s July 2, 1998 preliminary injunction enjoining plaintiff’s concrete production remained in effect until the merits of the first lawsuit were decided. In effect, the court concluded that while the Town lacked statutory authority to issue the second SWO — challenged in the second lawsuit — the issue was academic since the earlier preliminary injunction remained in effect and was unaffected by the Town’s subsequent issuance of the CO. Supreme Court denied plaintiff’s reargument motion by decision dated January 11, 1999, and no appeal was taken from the September 3, 1998 order.
Plaintiff’s third lawsuit was a CPLR article 78 proceeding challenging the ZBA’s determination — on the Marinos’ appeal — revoking the CO issued to plaintiff. The ZBA interpreted the Town Zoning Law as requiring full site plаn approval for the placement and operation of mobile concrete batch equipment at this site. Although Supreme Court, by decision dated April 13, 1999, agreed with the ZBA’s interpretation, this Court ultimately disagreеd and reversed, annulled the ZBA’s determination, granted the petition and reinstated the CO (Matter of Bonded Concrete v Zoning Bd. of Appeals,
Then, after conducting a hearing on the subject motion, Supreme Court issued the November 15, 1999 order sub judice which, inter alia, denied plaintiffs motion for summary judgment and its motion to vacate the preliminary injunction. With regard to plaintiffs mоtion for summary judgment on its sole claim for a declaration that Town Law § 267-a (6) did not authorize the Town to issue the second SWO, Supreme Court declined to issue a declaration on the ground that the court had “already dеtermined in its September 3, 1998 Decision and Order that the . question did not present a justiciable controversy (see, CPLR 3001)” because the July 2, 1998 preliminary injunction remained in effect.
In our view, Supreme Court should have granted plaintiff summary judgment and issued a declaration in plaintiff’s second lawsuit regarding Town Law § 267-a (6). First, we agree with plaintiff that Supreme Court’s September 3, 1998 decision in the second lawsuit represents the law of the case on this issue, and the court’s ruling thеrein was that the Marinos’ appeal to the ZBA did not trigger the statutory stay provisions of Town Law § 267-a (6) (see, Brown v State of New York,
In any event, as noted, after issuance of the order appealed from denying plaintiff summary judgment in the second lawsuit, this Court reinstated that CO, reversing the ZBA on the Marinos’ appeal, ruling that site plan approval was not required, thereby eliminating any issue in the second lawsuit of whether a statutory stay was in effect pending thе Marinos’ ZBA appeal or whether the Town had properly premised the second SWO on the Marinos’ appeal (see, Matter of Bonded Concrete v Zoning Bd. of Appeals,
Plaintiff also argues on appeal that Supreme Court erred in denying its motion to vacate its July 2, 1998 preliminary injunction against plaintiff in the first lawsuit and to hold a hearing on damages. Plaintiff essentially argued that all of the issues and claims raised in the first lawsuit had become moot and that its sole declaratory claim in its second lawsuit was governed by the law of the case in its favor and, thus, there was no legal basis for continuation of the preliminary injunction. The court continued the order pending its final disposition in the combined action, and we perceive no basis for disagreeing. Plаintiff is correct that most of the issues raised for declaratory relief in its complaint/petition in the first lawsuit have been resolved, namely, plaintiffs mobile concrete plant as reconfigured no longer exceeds the height restrictions contained in the Town Zoning Law and this Court has determined that site plan approval is not required prior to the Town’s issuance of the CO (see, id.). Further, we have rejected the claims raised by the Town in its counterclaim.
However, there remain outstanding claims for which the continuance of the preliminary injunction is proper. For example, the Marinos’ counterclaim in the second lawsuit raises claims that the CO is otherwise improper or unauthorized (i.e., for reasons other than a lack of site plan approval) and that plaintiffs activities at the site constitute a nuisance and violated the CO. Indeed, one aspect of plaintiffs request
Crew III, J. P., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the order is affirmed, without costs.