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A road by any other name


State judge slams brakes on Wilzig motorcycle track in Taghkanic

TAGHKANIC–In a decision that minced no words state Supreme Court Justice Patrick J. McGrath has issued a permanent injunction forbidding not only Alan Wilzig and his wife from using their nearly complete, multi-million dollar motorcycle track, but also bars use of the track by any “agent, guest or invitee” of the Wilzigs.

The January 6 decision also singles out the Town Board, the Zoning Board of Appeals, Planning Board and employees, nullifying a series of recent decisions to approve the track and prohibiting town officials from issuing approvals for the track in the future.

Mr. Wilzig, a financier and heir to a banking fortune, says he will appeal this latest decision in a controversy that has lasted more than four years.

Mr. Wilzig bought a 240-acre former farm on Post Hill Road in 2005 and the next year began construction on an elaborate, mile-long motorcycle track, a large storage building for his motorcycle collection and a pond. But he did not get prior approval from the town for the track, and neighbors, alarmed after Mr. Wilzig initially described his property online as “Wilzig Racing Manor,” organized to oppose his plans.

That led to a series of legal challenges, with another state Supreme Court judge determining in 2007 that the town zoning law did not permit motorcycle tracks. After that setback Mr. Wilzig decided that what he actually had was not a motorcycle track but a recreational track for all sorts of uses, and town officials agreed, issuing permits for him to proceed.

But Judge McGrath wasn’t buying the new tactic. He dismissed the Wilzig legal strategy that renaming the track changed its status, writing at one point in his 16-page decision, “Substance over form precludes a finding of a major change of use… by simply adding the words ‘bicycle, jogging, skateboarding, rollerblading, etc.’” The judge cites Mr. Wilzig’s own statements in previous legal documents to conclude that “from its inception, the primary purpose and proposed use has been for a motorcycle course.”

Judge McGrath based his ruling on a legal principle called res judicata–the Latin term means a “thing decided” or a “matter judged”–which prevents re-litigating the same issue based on the same facts or ones that were available at the time of the original decision. As Judge McGrath wrote in his decision, citing a legal text, “It forbids… unjustifiable duplication, an unwarranted burden on the courts as well as on opposing parties.”

“This is one of the most basic rules of law, a first-year law school principal,” said Chris Tallackson, a lawyer and supporter of the Granger Group, the organization of Taghkanic residents opposed to the track.

“I am very, very happy. If the track had been built I would have lost everything,” said Mary Bartlett, a long time resident and close neighbor of Mr. Wilzig. A similar sentiment was expressed by Diane Rodriguez, who owns property adjacent to Mr. Wilzig’s. She called the ruling “a huge relief.”

“We consider it over,” Ms. Rodriguez said of the three-year long legal battle.

But it’s not over yet, according to Mr. Wilzig’s attorney David Everett. “We’ll appeal. We’re looking to get a decision on the merits rather than on a legal technicality,” he said.

Despite the finding by Judge McGrath that “it is the same exact motorcycle course that was the subject of the first administrative determination and the primary use is still for motorcycle use,” Mr. Everett said that Mr. Wilzig changed so much about the track–its proposed use, its footprint and configuration–that it was not the same track and deserved another hearing.

In an interview this week Mr. Wilzig said he wasn’t surprised by the ruling, given what he said was the Democratic Party affiliation of the judge. But he expressed frustration at the length of time it took to issue the decision and questioned why the judge had asked for a copy of the town zoning law last month.

He also said the judge had ruled on “a technical item” instead of the substance of his case.

“Was he going through the motion of evaluating the case on its merits? …They never said what the objection was. All they said was No,” said Mr. Wilzig.

“I’m not going to plow it under,” said Mr. Wilzig of the track. But he added, “It needs to be reconfigured so no judge can say it’s the same track. There is no roadway that I can build that will be potentially less disturbing than the one that is half built and ideally situated not to disturb people.”

Judge McGrath, citing a 2008 environmental assessment form, described the track at “90 percent complete before the town became involved.”

In the interview, Mr. Wilzig said of Taghkanic, “I chose the town because there is no limitation on the amount of roadway you can pave on your property. When I asked my realtors about paving, they said as long as you are okay with [the state Department of Environmental Conservation] with storm water run-off you can pave the whole damn thing. There’s no permit required for paving.”

He said he regrets that his neighbors learned of the track through a “gossipy real estate column in the New York Post saying I was spending $75 million–a tenfold exaggeration. It played on people’s worst fears. I would be freaked out too.”

He said he has tried hard to make accommodations in design and layout to please his neighbors and the town.

Mr. Wilzig’s neighbors have not complained about noise from his property in recent months, and he still rides his dirt bikes on trails on his property and his smooth-tire bikes on his mile-long driveway. And he sounded almost resigned to limitations on his plans, saying, “I’ll have to make a long meandering driveway and call it a day. It will be more dangerous for me and closer to the trees and closer to property borders. It’s not like I planned it that way, but if you don’t let me ride up there, what can I do?”

“Constructed tracks of any type, whether they are paved or not, are illegal,” said Ms. Tallackson. “This could be a noisy summer,” she added.

But other track opponents were more optimistic. “The system works and is a viable option when things don’t function at the local level as it should,” said Warren Replansky, attorney for the plaintiffs. “The judicial system has worked well, but the local government has really failed its citizens,” said Sam Pratt who helped found the Granger Group. He called the on-going court battle “a grueling and costly

process involving needless duplication.”

A Granger member estimates that the group has spent over $100,000 on this case, though it stands to receive a refund of the $50,000 bond it put up last fall in order to seek an injunction blocking permits for the track. Mr. Wilzig said he has spent hundreds of thousands of dollars on legal fees. The town has spent $32,000 on the Wilzig case.

The Grangers will not be reimbursed for legal fees related to appealing the decision of the town Zoning Board of Appeals (ZBA). Judge McGrath said he did not find that the ZBA made its decision “with gross negligence or in bad faith or with malice.

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