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In re Dolomite Products Co., Inc.

Supreme Court of New York, Third Department

June 15, 2017

In the Matter of DOLOMITE PRODUCTS COMPANY, INC., Respondent- Appellant,
v.
TOWN OF BALLSTON et al., Respondents. (Proceeding No. 1.) In the Matter of DOLOMITE PRODUCTS COMPANY, INC., Respondent- Appellant, TOWN OF BALLSTON et al., Respondents, and I.M. LANDSCAPE ASSOCIATES, LLC, Appellant- Respondent. (Proceeding No. 2.)

          Calendar Date: March 30, 2017

          Braymer Law, PLLC, Glens Falls (Claudia K. Braymer of counsel), for appellant-respondent.

          Couch White LLP, Albany (Adam J. Schultz of counsel), for respondent-appellant.

          Before: Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.

          MEMORANDUM AND ORDER

          Aarons, J.

         Cross appeal from a judgment of the Supreme Court (Chauvin, J.), entered December 10, 2015 in Saratoga County, which, among other things, in proceeding No. 2 pursuant to CPLR article 78 and action for declaratory judgment, declared that Local Law No. 2-2014 of the Town of Ballston did not apply to petitioner.

         In June 2011, petitioner submitted an application to the Town of Ballston Planning Board (hereinafter the Planning Board) for site plan review and an application to respondent Zoning Board of Appeals of the Town of Ballston (hereinafter ZBA) for a height variance so that it could construct and operate a hot mix asphalt plant in the Curtis Industrial Park in the Town of Ballston, Saratoga County. While petitioner's intended use was permissible under the applicable zoning laws in effect at the time of petitioner's application, such zoning laws still required site plan review (see Code of the Town of Ballston § 138-102; Local Law No. 5-2006 of the Town of Ballston). The Planning Board held a public hearing in August 2011 wherein a few members from the public expressed their opposition to petitioner's plan based on, among other things, traffic, health, noise and environmental concerns. Notably, however, the chair of the Planing Board stated at the hearing that the site was "an authorized site. It's been approved by the County."

         In February 2012, approximately seven months after petitioner submitted its application, the Town Board of Ballston (hereinafter Town Board) began discussing amending the zoning law to "restrict [b]lacktop [p]lants in the future" and "to restrict heavy industry and only have light industry" in the Curtis Industrial Park. While petitioner was in the midst of preparing and revising a draft environmental impact statement, [1] the Town Board continued these discussions in a series of public meetings and, ultimately, on September 24, 2013, enacted Local Law No. 3-2013 of the Town of Ballston (hereinafter Local Law No. 3). One of the prohibited uses delineated in Local Law No. 3 was an "[a]sphalt plant" in the Curtis Industrial Park.

         Petitioner thereafter commenced a combined CPLR article 78 proceeding and action for declaratory judgment seeking to declare Local Law No. 3 null and void claiming that, among other things, the Town failed to give proper notice to a neighboring municipality. While that proceeding was pending, the Planning Board advised petitioner in an April 2014 letter that, because Local Law No. 3 was in effect, the Planning Board lacked jurisdiction to entertain petitioner's application. In July 2014, however, Supreme Court (Crowell, J.) invalidated Local Law No. 3. Notwithstanding this decision, the ZBA, in August 2014, upheld the Planning Board's determination upon petitioner's administrative appeal.

         In September 2014, petitioner commenced a combined CPLR article 78 proceeding and action for declaratory judgment (proceeding No. 1) seeking, among other things, annulment of the ZBA's determination. The Town Board, also in September 2014, enacted Local Law No. 2-2014 of the Town of Ballston (hereinafter Local Law No. 2), which, similar to Local Law No. 3, prohibited the use of an "asphalt plant" in the Curtis Industrial Park. In October 2014, petitioner filed a second petition/complaint (proceeding No. 2) seeking, as relevant here, the annulment of Local Law No. 2 or, in the alternative, an order granting an exemption from it. Respondent I.M. Landscape Associates, LLC (hereinafter respondent), which owns parcels of land in the Curtis Industrial Park section, was subsequently granted permission to intervene in proceeding No. 2. In the December 2015 judgment which addressed both proceedings, Supreme Court annulled the ZBA's August 2014 determination as arbitrary and capricious given that Local Law No. 3 had been invalidated by the time of the ZBA's decision. Supreme Court also granted petitioner's request for declaratory relief and a special facts exception by declaring that Local Law No. 2 was inapplicable to petitioner's application. Supreme Court declined to reach the issue of whether Local Law No. 2 should be declared null and void. Respondent appeals and petitioner cross-appeals. [2]

         Initially, the threshold question of whether respondent is aggrieved by the December 2015 judgment must first be addressed (see Lincoln v Austic, 60 A.D.2d 487, 490 [1978], lv denied 44 N.Y.2d 644');">44 N.Y.2d 644 [1978]) [3]. Aggrievement is a central but, more importantly, a necessary component to invoke this Court's jurisdiction (see Tortora v LaVoy, 54 A.D.2d 1036, 1036 [1976]). In that regard, only an "aggrieved" party may appeal from an order or judgment (CPLR 5511) and, if a party is not aggrieved, then this Court does not have jurisdiction to entertain the appeal (see Tortora v LaVoy, 54 A.D.2d at 1036).

         We note that a successful intervenor, such as respondent, becomes a party to the underlying proceeding for all purposes (see Matter of Rent Stabilization Assn. of N.Y. City v New York State Div. of Hous. & Community Renewal, 252 A.D.2d 111, 116 [1998]). Indeed, "[t]he CPLR does not recognize limited intervention" (id. [internal quotation marks omitted]). Having party status and all attendant rights thereto, however, does not give an intervenor the inherent right to take an appeal (see Matter of Valenson v Kenyon, 80 A.D.3d 799, 799 [2011]; Matter of Richmond County Socy. for Prevention of Cruelty to Children, 11 A.D.2d 236, 240 [1960], affd 9 N.Y.2d 913, 914 [1961], cert denied 368 U.S. 290');">368 U.S. 290 [1961]). An intervenor, just like any party to an action or proceeding seeking appellate resolution, must be aggrieved (see CPLR 5511; Hirsch v Hirsch, 148 A.D.3d 997, 1000 [2017]).

         A party that has received its sought relief is not aggrieved and, therefore, has no basis to take an appeal (see T.D. v New York State Off. of Mental Health, 91 N.Y.2d 860, 862 [1997]; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 N.Y.2d 539, 544 [1983]; Matter of Hoover v DiNapoli, 75 A.D.3d 875, 876 [2010]; Matter of Spaziani v City of Oneonta, 302 A.D.2d 846, 847 [2003]). Stated differently, a party is aggrieved when the court denies, in whole or in part, such party's requested relief. Likewise, a party is aggrieved when a court grants relief, in whole or in part, against such party and such party had opposed the requested relief (see Mixon v TBV, Inc., 76 A.D.3d 144, 156-157 [2010]). Aggrievement does not hinge upon a court's reasons underpinning why relief was granted or denied (see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 N.Y.2d 465, 472-473 [1986]). A party that disagrees with the rationale or findings of a court's decision, but is nonetheless awarded its sought relief, is not aggrieved (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 N.Y.2d at 545-546). "[T]he concept of aggrievement is about whether relief was granted or withheld, and not about the reasons therefor" (Mixon v TBV, Inc., 76 A.D.3d at 149).

         To that end, petitioner argues that because respondent intervened in this proceeding for the sole purpose of seeking to uphold Local Law No. 2 and because Supreme Court did not annul such law, respondent received the relief it requested and, therefore, is not aggrieved by the December 2015 judgment. Respondent counters that it sought dismissal of the petition/complaint in its entirety and ...


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