In the latest legal twist of the Alan Wilzig racetrack battle, 3rd Department Appellate Division Judge Michael Kavanagh signed an Order to Show Cause presented by attorneys for The Granger Group on Monday. In a signed, handwritten addition to the Order, Judge Kavanagh noted that following a conference with both sides, he advised Wilzig’s attorney that:
ANY WORK ON THE FACILITY MAY WELL HAVE TO BE REMOVED IF ON SUBSEQUENT REVIEW AND OR ALL OF THE A.D. DECISION (10/21/10) IS MODIFIED OR REVERSED
Kavanagh had authored the opinion (issued with a surprising brevity and haste) of October 21st which lifted a previous injunction barring Wilzig from performing any work on his proposed mile-long, 40-foot wide racetrack in Taghkanic.
But this new Order to Show Cause [PDF] finds that Kavanagh had heard “sufficient cause” for The Granger Group’s attorneys Warren Replansky and Bob McGreevy to either re-argue the case before the Appellate Division, or else appeal to the next highest court. The Order requires Wilzig’s lawyers to convince the court on November 15th in Albany why the Grangers should not be given another hearing.
The Granger team has already set forth in person and in writing their case for a new reversal, pointing out that unfortunately the Appellate Division made fundamental errors of law and neglected to address key elements of the case it its decision last week. An affidavit from Warren Replansky supporting the Order and outlining their case can be read in full here [PDF]. In brief, it argues that if let stand, the court will have stood zoning law on its head and gutted the powers of every ZBA in New York State. The more dry headlines from the document are:
The Court in its determination failed to consider the res judicata/collateral estoppel effect of Justice Hummel’s September 17, 2007 ruling on Wilzig’s Declaratory Judgment action
and
This Court misconstrued applicable law and Zoning Board of Appeals procedures in determining that a Zoning Board of Appeals before determining whether a use is, or is not, permitted under a Zoning Law, must first await a determination of the Planning Board to grant or deny site plan approval
Basically, the Granger attorney is stating in the politest way possible to the Appellate Division: “Y’all completely missed the point and ignored the facts of this case.”
Prior to the issuance of this Order, sources in Taghkanic had indicated that Wilzig had already begun soliciting bids for paving of the track. Whether he’s prepared to risk having that work torn up or not remains to be seen, but the imminence of winter may make that decision for him, even if the Court does not.
Full disclosure: Though I was one of three founders of The Granger Group and remain a financial contributor to the organization, I am in no way involved with steering or otherwise directing the group‘s activities.
