Harpersfield votes to appeal judge’s decision in racetrack case
2/12/14 – 10:34 pm
Last month, a Delaware County judge delivered a stinging defeat to Town of Harpersfield officials and the town’s new motorcycle track, ruling in favor a group of angry neighbors of the track who brought a lawsuit against both the track and the town. In their lawsuit, the neighbors, who call themselves the Friends of Rural Life, claimed that the track was causing disruptive noise and harming their property values.
On Tuesday, Feb. 11, Harpersfield town board members voted to appeal the judge’s verdict. If the town loses the appeal, Harpersfield may be forced to pay at least $72,000 in attorney’s fees to the lawyer for the group — a figure that could rise as the legal battle continues.
In his Jan. 15 decision (posted here in full), Acting Supreme Court Justice Brian Burns ruled not only that Harpersfield’s New York Safety Track must scale back its operations, but that town officials and their attorney had violated state open meeting law in the process of approving plans for the track, and that the town of Harpersfield must pay all of the suing neighbors’ attorney’s fees.
In a news article about the decision, the Daily Star reports that a state legal expert believes this case to be the first time a public body has been found in violation of a new section of the state’s open meeting law:
[Judge Burns ruled] 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.
The vote to appeal Burns’ decision, taken at the Harpersfield town board’s regular meeting, was unanimous except for Catherine Straus, who was absent from the meeting, according to information provided by town clerk Linda Goss.
Before the vote, the town board went into executive session to discuss whether to appeal the verdict. State open meeting law allows for town boards to discuss pending legal action in executive session, out of the view of the public.
Town attorney Kevin Young, who defended Harpersfield in the lawsuit, will pursue the appeal. Young is a prominent local land use lawyer with the Albany firm Young & Sommer, and represents many local municipalities in environmental cases.
On the other side of the legal dispute is Otsego County attorney Douglas Zamelis, also a specialist in land use cases, who represented the Friends of Rural Life.
On Feb. 6, Zamelis filed an affidavit in the case, detailing the fees owed by the town of Harpersfield. In the affidavit (posted here in full), Zamelis writes that he spent 260 hours on the case, at a rate of $275 per hour, a total of $71,500. He is also requesting $1,100.42 in costs such as filing fees, photocopying, and other out-of-pocket costs.
Daily Star – in our Opinion Local officials should be more attentive
The adage that “you can’t fight city hall” was disproved last month in two court rulings that set local activists cheering and no doubt set some teeth on edge down at the town hall. In the town of Richfield, a proposed wind farm was dealt a blow by a state Supreme Court ruling annulling the special-use permit issued by the town planning board in August. Justice Donald Cerio found in favor of a group of area residents who filed a lawsuit to halt the project. Cerio ruled that the project did not conform with all eight of the town’s land-use law requirements, and that evidence was lacking to show that landowners would not be negatively impacted by the project. The wind project has divided the town, with some residents criticizing the planning board for having issued the permit in the first place. “We couldn’t understand how the town and the wind company could take our rights to develop our property without our consent — and the judge apparently couldn’t, either,” Daniel Mezik of Richfield told The Daily Star. This ruling was probably not as celebrated among the members of the Richfield town planning board. But their counterparts in Harpersfield may be feeling even worse. A recent state Supreme Court decision found that that town’s planning board violated the state Open Meetings Law on three different occasions when considering an agreement operation for a motorcycle track. Acting Supreme Court Judge Brian Burns annulled the agreement, ordering that the New York Safety Track go back to its original proposal of being a private facility, with attendance capped at 25 people and engine size limited to 250cc. Just as in Richfield, this is a win for the “little” people, who have been critical, not only of the track itself, but of the town’s handling of the whole matter. In a letter to The Daily Star in August 2012, Kitty Ballard, who was one of the plaintiffs in the lawsuit, wrote that “This racetrack has been and continues to be misrepresented since day one.” There are likely to be appeals in one or both cases. It could have saved the expense and uncertainty of litigation had town officials paid more attention to their laws and the ramifications of their approvals. If Richfield didn’t have such stringent land-use laws, the opponents of this wind project would likely not have had a prayer. Meanwhile, in the town of Harpersfield, a lack of zoning laws meant that it was almost entirely up to the town planning board to decide what the New York Safety Track could and could not do. In both cases, we are reminded of the power that our local officials have over our communities — for better and, sometimes, for worse.
January 25, 2014
By Joe Mahoney Staff WriterThe 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.