ALBANY–Alan and Karin Wilzig’s appeal to last year’s state Supreme Court decision on their motorcycle track was heard on Monday by a five-judge state appellate panel. A decision is expected in November, although it’s not clear even that ruling would end the controversy over the track.
The Wilzig’s case was argued by John F. Henry, an attorney with the Albany law firm Whiteman, Osterman & Hanna. Warren S. Replansky represented the Granger Group, an organization of town residents formed to oppose the track. The town of Taghkanic was not represented at the proceeding.
Last January Judge Patrick J. McGrath issued a permanent injunction against completion, maintenance and use of the motorcycle race track in a decision based on a legal principle called res judicata, a doctrine intended to prevent settled legal matters from being reargued by a petitioner seeking a more favorable decision.
At the time of that ruling, Mr. Wilzig’s attorney, David Everett, vowed to appeal the judge’s decision, saying, “We’re looking to get a decision on the merits rather than on a legal technicality.”
Judge McGrath’s decision was not the first setback for Mr. Wilzig’s efforts to complete his approximately mile-long race course at his Post Hill Road property in Taghkanic. In 2007 state Supreme Court Justice Christian F. Hummel found that the racecourse was not an accessory use associated with a residence and was not permitted under the town zoning ordinance. The decision halted Mr. Wilzig’s plans to pave the track.
At the hearing Monday, questions from judges included asking about whether the Wilzigs had applied for local site plan approval and followed state environmental review regulations. In response to a question from one of the five appellate justices, Mr. Replansky faulted the Wilzigs and their counsel for having changed the basis of their claim that the track was legal. Mr. Wilzig first asserted the track was a standard residential accessory, but when that approach proved unsuccessful in court, he filed for approval of the track as a permitted recreational use.
“If a guy builds a track with no permits then defends it on the basis of recreational, can he?” asked one judge.
Throughout the proceedings, the two sides have presented their cases in starkly different terms. Mr. Wilzig’s legal team has argued that decisions by the town Planning Board and Zoning Board of Appeals favoring the track should trump the ruling made by Judge McGrath. His lawyer told the panel that even if local officials or Mr. Wilzig incorrectly classified the track at the outset, that error should not slam the door on the right of Mr. and Mrs. Wilzig to enjoy their property, including their motorcycle track.
Observers do not anticipate the appellate court will revisit the question of whether the track is allowable, either as an accessory residential use or, as Mr. Wilzig has also described it, as a club or recreational use. The issue before the panel is whether to let stand Judge McGrath’s decision curtailing further litigation on the basis of the res judicata doctrine.
While a number of residents were present in the Albany courtroom Monday, September 13, for the oral arguments in the case, none of the observers offered to predict which way the panel will rule based on the judges’ questions or attorney responses. While some of the judges on the panel may remember the Town of Taghkanic from a separate case last year involving a voter registration challenge and from a previous appeal concerning the Wilzigs’ motorcycle storage facility, others were new to the issue.
If the Wilzigs win their appeal, the issue of the track may be back at the center of town discussions and the civil case may have to be re-tried.
Briefs submitted to the court by the Wilzigs and the Grangers are available online on www.grangergroup.cc.