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January 25, 2014
Judge orders speedway to follow rules
By Joe Mahoney Staff Writer
The Daily Star
Neighbors opposed to the fledgling New York Safety Track in Harpersfield are rejoicing after a judge prohibited the facility from allowing racing there and placed limits on attendance and on motorcycle engine size, keeping down the loud roar of the machines.
The decision, issued by Acting Delaware Supreme Court Judge Brian Burns, also found that the Harpersfield town planning board violated the state Open Meetings Law on three different occasions last year. The judge also took issue with the guidance offered to the town officials by Town Attorney Kevin Young.
The judge annulled the controversial agreement for operation that the town issued to the track. The agreement was the springboard for the track to actively promote its events and market admission tickets to the general public. The judge directed the track operators to submit a new site plan application to the town for the upcoming 2014 season “and beyond.”
Initially, track representatives had assured the town that the facility was “not to be open to the public per se,” attendance would be kept to 25 people and the size of motorcycle engines would be limited to 250cc. Later after the lawsuit was filed, agents for the track said those restrictions were not binding, the judge pointed out.
“This court finds no legal support for that contention,” Burns said. “After considering the legal arguments presented by all parties, the court finds there is no uncertainty in the described use of the property.”
The judge ruled that the track operators are now limited to the activities that were outlined when the site plan was first approved by the planning board — not the one that was modified by the planning board in concert with the code officer.
Burns also awarded attorney’s fees to the neighbors who sued the track and the town, and were represented by Douglas Zamelis, a Springfield attorney who specializes in environmental and land-use law.
The ruling found the Harpersfield planning board violated the open-meetings law three times between Jan. 30 and May 1, 2013. Subsequently, Young contended that the latter two meetings were appropriately closed closed under “attorney client privilege.”
But Burns wrote: “A public entity cannot retroactively invoke the attorney-client privilege only when faced with a challenge to its decision to exclude the public from its deliberations.”
The judge also agreed with Zamelis that town officials violated a section of the Public Officers Law, enacted just a year ago, by failing to make available to the public a memorandum that outlined the site-approval agreement. Such documents that are to be discussed at public meetings are now required by law to be made available to people attending meetings.
Robert Freeman, executive director of the state Committee on Open Government, told The Daily Star that he believes the Burns decision is the first in New York to hold a public body in violation of this requirement. Freeman also said there has been a recent tendency of New York judges to financially punish government agencies and boards that violate the Open Meetings Law by awarding attorney fees to those harmed by such actions.
Whether the town or the track will file an appeal with the state appellate division is not immediately clear. Young, when contacted by The Daily Star, said he would be discussing the available legal options with town board and planning board members. As for Burns’ observations, he said: “We vigorously disagree with the judge.”
The track has been managed for the past year by Greg Lubinitsky. Responding to a request for comment, he said in a text message he is now in Israel and no longer represents the track. He provided contact information for a party he said could respond on behalf of the track. However, that person did not respond to an email request for comment.
The lawsuit was filed by 34 area residents who banded together in a group called Friends of Rural Life and alleged that noise and traffic problems created by the track were disrupting their peace of mind.
“The track, its noise and traffic are a serious threat to our property values,” said Dana LaCroix, one of the petitioners. “We’ll be watching the track very carefully next season and we’ll be quick to enforce the court’s order if the racetrack is foolhardy enough to violate it.”
Another involved in bringing the case, Gabby Leach, said, “We are delighted that justice is alive and well in upstate New York and we’re encouraged that we’ve been heard.”
Town officials have said the 2.2-mile oval track at the site of an abandoned airfield has the potential to stimulate economic activity in the region and bring. Harpersfield has no zoning code.
Named as defendants in the lawsuit were the New York Safety Track LLC, Mountain Top Airfield LLC, the Harpersfield Town Board, Planning Board, town clerk and code-enforcement officer.
The facility, which offers instruction for riders ranging from beginners to the experienced, has been open for business less than a year.
(A change in the final paragraph has been made from the original story.)
