Posted by: Patricia Salkin | February 11, 2016

NY Appellate Court Finds Nothing Irrational in Determination of the CEO that Bulk of Proposed Activities Did Not Constitute Activity Subject to Further Site Plan Review

The Town of Harpersfield Planning Board granted site plan approval for respondent New York Safety Track LLC to operate a motorcycle safety training facility at a converted former airport. In January 2013, Safety Track was advised by respondent Town of Harpersfield Code Enforcement Officer that the races and other large events occurring at the track were not authorized uses pursuant to the site plan. An agreement was executed between Safety Track and the Planning Board that “purported to outline Safety Track’s approved land uses for May 1, 2013 to December 31, 2013.” The agreement was challenged in a combined CPLR article 78 proceeding and declaratory judgment action and, in January 2014, Supreme Court “annulled it and made declarations regarding the scope of Safety Track’s permissible land uses” During the pendency of this appeal, the court reversed the part of the January 2014 judgment that made declarations regarding the uses permitted under the site plan approval.

Safety Track subsequently requested a determination by the CEO as to whether specified activities at the track would require further site plan approval. The CEO issued his determination in which he declined to assess whether the activities were permitted under the terms of the January 2014 judgment and found that most of them would not require further review under the Site Plan Review Law. Petitioners commenced the instant proceeding to challenge the CEO’s determination. The state Supreme Court granted the petition annulling certain portions of the CEO’s determination. Safety Track and respondent Mountain Top Airfield LLC and, separately, the CEO, appealed from that judgment.

Respondents argued that Supreme Court erred in concluding that the CEO irrationally refused to take a position on whether the specified uses ran afoul of the January 2014 judgment. However, since the court subsequently reversed that part of the January 2014 judgment, and the CEO could not be faulted for failing to adhere to or otherwise interpret judicial declarations that no longer existed, the judgment before the court was not permitted stand. In the absence of the January 2014 judgment, the court found nothing irrational in the determination of the CEO that the bulk of the proposed activities did not constitute a “change in the use” of the property or otherwise constitute activity that would be subject to further site plan review.

Ballard v New York Safety Track, LLC , 134 A.D. 3d 1322 (2 Dept. 12/15/15)

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