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FILED: ULSTER COUNTY CLERK 04/10/2024 05:40 PM INDEX NO. EF2024-978
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/11/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
_________________________________________________Ç
CHRISTINE DeBOER, REBECCA HORNER,
JAMES LAFFERTY, CHARLES KOPELMAN,
MARJORIE CARLSON, TINA LEEDS-MILLER,
JACK MILLER and CHARLES VAN LAER, VERIFIED PETITION &
COMPLAINT
Petitioner-Plaintiffs,
For a Judgment pursuant to Article 78 of the Index No.
Civil Practice Law and Rules, Declaratory Judgment,
And Injunctive Relief Assigned Judge:
Hon. , J.S.C.
- against -
TWIN TRACK PROMOTIONS, INC., d/b/a ACCORD
SPEEDWAY, TOWN OF ROCHESTER PLANNING
BOARD,
Respondent-Defendants.
______________________________________________________________Ç
Petitioner-Plaintiffs, by and through their attorneys, Van DeWater & Van DeWater, LLP,
as and for their verified petition, pursuant to Article 78 of the Civil Procedure Law and Rules
("CPLR"), and CPLR §§3001 and 6301 against Respondent-Defendants, Town of Rochester
Planning Board, and Twin Track Promotions, Inc. d/b/a Accord Speedway respectfully allege in
this hybrid Article 78 proceeding and plenary action as follows:
PRELIMINARY STATEMENT
1. This proceeding is brought to annul a resolution (Decision PB 2023-675 Site
Plan) of the Town of Rochester Planning Board ("Planning Board"), adopted on March 11, 2024,
(hereinafter "Site Plan Approval"), determining that an expansion of Accord Speedway's use by
allowing the applicant to hold various commercial events, including, but not limited to rodeos,
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circuses, fairs, car shows, BBQ competitions, and seasonal events, in addition to the 40 annual
motor vehicle races, on the site would not have a significant adverse impact on the environment
(the "Negative Declaration"), waiving Site Plan submittal requirements, and granting conditional
Site Plan approval. EXHIBIT A
2. The Accord Speedway is located in the R-5 Zoning District on one parcel of
property in the Town of Rochester identifies as tax parcel S/B/L 69.001-01-05.
3. The Negative Declaration was adopted in contravention of the procedural and
substantive requirements of the State Environmental Quality Review Act ("SEQRA") and its
implementing regulations in that, among other errors, the Planning Board failed to review the
Project as a Type I Action, failed to identify the relevant areas of environmental concern, and
look"
failed to take the required "hard at the areas of concern.
4. Because the Negative Declaration was arbitrary and capricious, not supported by
substantial evidence, and based upon an error of law, the Negative Declaration must be annulled
and the matter remanded to the Planning Board for review as a Type I Action.
5. The Resolution of Approval is improper and must be annulled as arbitrary and
capricious because it was based upon an unsupportable Negative Declaration, lacked necessary
Special Use Permit approval, and was adopted in contravention of the procedural and substantive
requirements of the Rochester Town Code (the "Town Code").
THE PARTIES
6. The following Petitioners are residents of the Town of Rochester and own
property at the following addresses which are in close proximity to the Accord Speedway:
a. Christine DeBoer, 254 Whitfield Road, Accord, New York
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b. Rebecca Horner, 196 Cooper Street, Accord, New York
c. James Lafferty, 235 Cooper Street, Accord, New York
d. Charles Kopelman, 27 Oregano Hill Road, New York
e. Marjorie Carlson, 104 Cooper Street, Accord, New York
f. Tina Leeds-Miller, 192 Cooper Street, Accord, New York
g. Jack Miller, 192 Cooper Street, Accord, New York
h. Charles Van Laer, 335 Whitfield Road, Accord, New York
Petitioners'
7. interests are within the zones of interest that SEQRA and the Town
Code are intended to protect. The Petitioners will be injured by the Project as it will impact their
enjoyment and value of their residences and properties which are contiguous and/or in close
proximity to the Accord Speedway site.
8. Upon information and belief, Respondent Town of Rochester is a municipal
corporation duly organized under the laws of the State of New York, with principal offices
located at 50 Scenic Road, Accord, New York 12404.
9. Upon information and belief, Respondent Town of Rochester Planning Board is a
duly created body established by the Town of Rochester pursuant to New York State Town Law.
("TTP"
10. Upon information and belief, Twin Track Promotions, Inc or "Applicant")
is a domestic for-profit corporation with a place of business located at 299 Whitfield Road,
Accord, County of Ulster, State of New York, designated on the Town's Tax Map with Parcel
Identification #69.001-01-05. Twin Track Promotions, Inc. is named as a necessary party and
joined herein pursuant to CPLR §1001.
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JURISDICTION AND VENUE
11. This Court has jurisdiction pursuant to CPLR §§ 301 and 3001.
12. This Court has jurisdiction pursuant to CPLR 7801- to review actions
§§ 7806, by
bodies or officers who have failed to perform a duty enjoined upon them by law and who have
made a determination in violation of lawful procedure.
13. Venue is properly in Ulster County pursuant to CPLR §§ 504(2) and 506(b)
because claims are asserted against the Planning Board for actions taken in Ulster County and
because the agency's principal offices are in Ulster County.
14. Venue is proper against Twin Track Promotions, Inc. d/b/a Accord Speedway
pursuant to CPLR §§ 503(a), 503(c), and 507.
BACKGROUND AND PROCEDURAL HISTORY
TTP's History of Approvals
15. TTP purchased the Property containing the Accord Speedway in 1991. At the
time, the Property was located in the A Zoning District of the Town of Rochester. In the A
Zoning District, operation of a racetrack was a permitted use, subject to Special Use Permit
approval by the Planning Board. Further, the Town Code required a separate permit be issued by
the Town Board, specifically for the operation of a racetrack.
16. On March 17, 1992, TTP applied to the Planning Board for a Special Use Permit
and applied to the Town Board for a racetrack operating permit pursuant to Local Law #3 of
1987. Despite TTP's stated intention to improve the site by adding, among other things, a 6-foot-
tall steel and plywood sheeting enclosure for the track, a retention pond, drainage, above-ground
storage for waste oil, new clubhouse, lighting, signage, well and septic, no formal Site Plan
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approval was required by the Town. Instead, the Planning Board conditioned its approval on
plan"
TTP's submission of a color-coded "site within 14 days of the approval of the Special Use
Permit. EXHIBIT B
17. On April 24, 1992, the Town Board, acting as Lead Agency for the simultaneous
applications for TTP to begin operations of the Accord Speedway, adopted a Negative
Declaration pursuant to SEQRA. EXHIBIT C
18. On April 28, 1992, the Planning Board adopted the conditional Special Use
Permit which, among other conditions, allowed TTP to hold up to 40 racing events per year. TTP
plan,"
thereafter submitted a color-coded "site dated May 7, 1992, which did not reflect the
proposed well and septic and permanent concession facility, but rather the location of port-a-lets,
a portable concession stand, and the proposed location of steel walls and gates. The Planning
Board approval and stamp reflects that the map was part of the Special Use Permit application,
Site Plan approval was granted. EXHIBIT D
19. Thereafter, in 1993, TTP sought to amend its Special Use Permit and submitted
"SDS"
an or Subsurface Drip System Plan, dated September 23, 1993, to add well and septic to
the Site. The Planning Board approved the amendment to the Special Use Permit on September
28, 1993. Again, no formal Site Plan was required by the Planning Board. EXHIBIT E
20. In 2009, the Town repealed the entirety of their Zoning Code and adopted new
zoning regulations. The new Zoning Code was filed with the NYS Department of State and went
into effect on October 5, 2009. EXHIBIT F
21. Under the newly adopted Zoning Code, the Accord Speedway property was
Conservation"
rezoned to the R5 "Rural Zoning District. In the R5 Zoning District, motorized
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racetracks are not a permitted use, either as-of-right or by Special Use Permit. This rendered
TTP's operation of the Accord Speedway a pre-existing nonconforming use. The 2009 Zoning
Code and Schedule of Uses remains applicable today. EXHIBIT G
22. In May 2018, TTP again applied to the Planning Board to amend its SUP. TTP
applied to remove Condition #2 of the 1992 SUP so that it could expand its existing concession
operations to include the sale and consumption of beer and wine on site. EXHIBIT H
23. On June 11, 2018, the Planning Board, acting as Lead Agency, classified the
application as an Unlisted Action pursuant to SEQRA and adopted a Negative Declaration.
EXHIBIT I
24. The Planning Board held a public hearing on July 9, 2018, and resolved to grant
the requested amendment to the 1992 SUP. The Board further resolved that "Site Plan dated May
decision." plan"
17, 1992 continues as approved except as amended with this The "site submitted
with the application was the same map submitted with the original 1992 SUP application which
reflected a portable concession stand, port-a-lets, and did not depict well or septic on the site.
Again, this map never received Site Plan approval in 1992, it was merely submitted in support of
the SUP application. See Exhibits H & I
25. Upon information and belief, prior to the Planning Board's July 9, 2018,
plan,"
conditional approval to amend the "site TTP had never submitted nor obtained Planning
Board approval for a formal Site Plan.
TTP's 2023 Application
26. On November 14, 2023, TTP applied for Zoning Permit and Classification to the
Town Code Enforcement Office to expand its use of the Property to add a Commercial Events
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Facility use in order to hold, up to an additional 12, non-racetrack commercial events annually,
pursuant to Town Code §140-35. TTP indicated on its application that the project was subject to
area"
physical restrictions due to the "national wetland and FEMA flood plain existing on the
site. EXHIBIT J
27. The Code Enforcement Officer, in a memo to the Planning Board, dated
November 21, 2023, issued a determination that confirmed that the parcel is located within the
R5 Zoning District and determined TTP must obtain Site Plan approval. He further determined,
in direct contradiction to the statements on TTP's application, that "Applicant has met zoning
apply."
requirements, and no physical restrictions EXHIBIT K
28. On November 27, 2023, TTP applied for Site Plan and Special Use Permit
Approval to the Planning Board. On the application, TTP indicated that the application is for an
expansion of the existing use. EXHIBIT L
29. TTP included a request that the Code Enforcement Officer/Planning Board find
infrastructure"
that all SUP approval conditions "have been met by existing and further requested
scale"
a waiver from the required submittal of a "map to of the Property. EXHIBIT M
30. TTP also submitted a Short Environmental Assessment Form (SEAF) Part 1 on
which TTP indicated that the project site contains, or is substantially contiguous to, a building,
archaeological site, or district which is listed on the National or State Register of Historic Places,
or that has been determined by the Commissioner of the NYS Office of Parks, Recreation and
Historic Preservation to be eligible for listing on the State Register of Historic Places. EXHIBIT
N
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31. On December 14, 2023, the Town Code Enforcement Officer, in a letter to the
Planning Board, inexplicably granted a "waiver for the need for a special use permit as the
changing."
current infrastructure is not He further determined that "proposed plans for
commercial events do not alter the pre-existing conditions of the site, therefore an amendment of
required."
the current site plan approval is what is EXHIBIT O
32. The Planning Board held its first meeting regarding TTP's application on
December 11, 2023. During the meeting, the Planning Board, despite this being their first review
of the application, voted and resolved to waive a requirement for a noise study and granted
TTP's request for waiver of a requirement to submit a map to scale.
33. On January 8, 2024, the Planning Board opened the public hearing for the
application. Numerous residents of the Town, including Petitioners, expressed their concern
regarding both the current operation of the raceway and the proposed expansion of use.
Residents stated that the noise already generated by the raceway hindered their use and
enjoyment of their properties. Many residents requested that the Board require a noise study and
approvals.1
traffic study be conducted prior to the issuance of any
34. The Planning Board Attorney, on January 22, 2024, conducted an instructional
SEQRA training meeting to educate the Board members on the duties imposed on them by the
Act. During the meeting, he expressed concern that TTP was not required to obtain Special Use
Permit approval and indicated to the Board that potential impacts of the proposed expanded use,
approvals.2
such as increased noise levels, should be studied and considered prior to issuance of
1
The Minutes from the 1/8/24 Planning Board meeting are unavailable, however a video of the meeting is available
on the Town's YouTube Page: https://www,youtube.com/watch?v=tVkwVvqmlLM
2
See Video of 1/22/24 SEQRA Training Meeting: https://www.youtube.com/watch?v=R-NVmNFgWPA
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35. On January 22, 2024, the Planning Board held a Workshop meeting which
Applicant attended. During the meeting, the Planning Board attempted to establish a list of the
type of events TTP planned to host on the Site.
36. On February 12, 2024, the Planning Board continued the open Public Hearing.
One of the Planning Board members discussed his concerns that there was insufficient additional
3
data, provided by the Applicant, for the Board to consider.
37. Notably, at the time, there was submission from the Applicant regarding the
proposed maximum number of attendees for the proposed events. The Applicant stated that the
Accord Speedway could potentially host 2,000 vehicles. The Planning Board then discussed that
any attendance of over 1,500 people would trigger the need for an additional permit from the
Town.
38. The Planning Board Attorney also pointed out that allowing parking for 500
vehicles or more would trigger a review of the Project as Type I Action pursuant to SEQRA.
Considering the additional review requirements, the Applicant verbal removed its request to
allow concerts to be held on the Site.
39. On March 11, 2023, the Planning Board continued the public hearing. After
public comment again requesting further study and consideration by the Planning Board of
potential traffic increases and noise level impacts on the community. The Planning Board, after
declining to require studies of noise and traffic impacts and declining to even obtain comments
on the Project from other potentially interested parties including but not limited to the Fire
3
See video of 2/12/24 Workshop Meeting: https://www.youtube.com/watch?v=zQBMtiGdXCM
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Department, Highway Superintendent, County Board of Health, voted to close the public
hearing4. Exhibit P
40. After closing the Public Hearing, the Planning Board read through the questions
enumerated in the SEAF Part 2 and voted to type the expansion of use as an Unlisted Action.
The SEAF Part 3 was never completed by the Board or Applicant. The Board then voted to adopt
the Negative Declaration finding that the Project would not result in any significant adverse
environmental impacts and voted to issue a Resolution of Approval for the Project. See Exhibit
A
FIRST CAUSE OF ACTION
The Planning Board Unlawfully Categorized the Accord
Speedway's Expansion of Use as an Unlisted Action
41. During the Planning Board's review of the expansion of use for the Accord
Speedway, there was discussion regarding how the Applicant could keep the Project from
crossing the threshold of being classified as a Type I Action under SEQRA. The Board
ultimately, and correctly, concluded that TTP's proposed parking for about 2,000 vehicles for
events on the site would require the Board to review the application as a Type I Action.
42. SEQRA enumerates certain statutory Type I Actions. The list includes
"activities... that meet or exceed ... parking for 500 vehicles in a city, town or village having a
less." §617.4(b)(6)(iii)5
population of 150,000 persons or
Preview
FILED: ULSTER COUNTY CLERK 04/10/2024 05:40 PM INDEX NO. EF2024-978 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/11/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER _________________________________________________Ç CHRISTINE DeBOER, REBECCA HORNER, JAMES LAFFERTY, CHARLES KOPELMAN, MARJORIE CARLSON, TINA LEEDS-MILLER, JACK MILLER and CHARLES VAN LAER, VERIFIED PETITION & COMPLAINT Petitioner-Plaintiffs, For a Judgment pursuant to Article 78 of the Index No. Civil Practice Law and Rules, Declaratory Judgment, And Injunctive Relief Assigned Judge: Hon. , J.S.C. - against - TWIN TRACK PROMOTIONS, INC., d/b/a ACCORD SPEEDWAY, TOWN OF ROCHESTER PLANNING BOARD, Respondent-Defendants. ______________________________________________________________Ç Petitioner-Plaintiffs, by and through their attorneys, Van DeWater & Van DeWater, LLP, as and for their verified petition, pursuant to Article 78 of the Civil Procedure Law and Rules ("CPLR"), and CPLR §§3001 and 6301 against Respondent-Defendants, Town of Rochester Planning Board, and Twin Track Promotions, Inc. d/b/a Accord Speedway respectfully allege in this hybrid Article 78 proceeding and plenary action as follows: PRELIMINARY STATEMENT 1. This proceeding is brought to annul a resolution (Decision PB 2023-675 Site Plan) of the Town of Rochester Planning Board ("Planning Board"), adopted on March 11, 2024, (hereinafter "Site Plan Approval"), determining that an expansion of Accord Speedway's use by allowing the applicant to hold various commercial events, including, but not limited to rodeos, U:\DOCS\15867\00001\PLD\28J972104.DOC-TAM [1] 1 of 28 FILED: ULSTER COUNTY CLERK 04/10/2024 05:40 PM INDEX NO. EF2024-978 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/11/2024 ! circuses, fairs, car shows, BBQ competitions, and seasonal events, in addition to the 40 annual motor vehicle races, on the site would not have a significant adverse impact on the environment (the "Negative Declaration"), waiving Site Plan submittal requirements, and granting conditional Site Plan approval. EXHIBIT A 2. The Accord Speedway is located in the R-5 Zoning District on one parcel of property in the Town of Rochester identifies as tax parcel S/B/L 69.001-01-05. 3. The Negative Declaration was adopted in contravention of the procedural and substantive requirements of the State Environmental Quality Review Act ("SEQRA") and its implementing regulations in that, among other errors, the Planning Board failed to review the Project as a Type I Action, failed to identify the relevant areas of environmental concern, and look" failed to take the required "hard at the areas of concern. 4. Because the Negative Declaration was arbitrary and capricious, not supported by substantial evidence, and based upon an error of law, the Negative Declaration must be annulled and the matter remanded to the Planning Board for review as a Type I Action. 5. The Resolution of Approval is improper and must be annulled as arbitrary and capricious because it was based upon an unsupportable Negative Declaration, lacked necessary Special Use Permit approval, and was adopted in contravention of the procedural and substantive requirements of the Rochester Town Code (the "Town Code"). THE PARTIES 6. The following Petitioners are residents of the Town of Rochester and own property at the following addresses which are in close proximity to the Accord Speedway: a. Christine DeBoer, 254 Whitfield Road, Accord, New York U:\DOCS\l5867\00001\PLD\28J972104.DOC-TAM [2] 2 of 28 FILED: ULSTER COUNTY CLERK 04/10/2024 05:40 PM INDEX NO. EF2024-978 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/11/2024 b. Rebecca Horner, 196 Cooper Street, Accord, New York c. James Lafferty, 235 Cooper Street, Accord, New York d. Charles Kopelman, 27 Oregano Hill Road, New York e. Marjorie Carlson, 104 Cooper Street, Accord, New York f. Tina Leeds-Miller, 192 Cooper Street, Accord, New York g. Jack Miller, 192 Cooper Street, Accord, New York h. Charles Van Laer, 335 Whitfield Road, Accord, New York Petitioners' 7. interests are within the zones of interest that SEQRA and the Town Code are intended to protect. The Petitioners will be injured by the Project as it will impact their enjoyment and value of their residences and properties which are contiguous and/or in close proximity to the Accord Speedway site. 8. Upon information and belief, Respondent Town of Rochester is a municipal corporation duly organized under the laws of the State of New York, with principal offices located at 50 Scenic Road, Accord, New York 12404. 9. Upon information and belief, Respondent Town of Rochester Planning Board is a duly created body established by the Town of Rochester pursuant to New York State Town Law. ("TTP" 10. Upon information and belief, Twin Track Promotions, Inc or "Applicant") is a domestic for-profit corporation with a place of business located at 299 Whitfield Road, Accord, County of Ulster, State of New York, designated on the Town's Tax Map with Parcel Identification #69.001-01-05. Twin Track Promotions, Inc. is named as a necessary party and joined herein pursuant to CPLR §1001. U:\DOCS\15867\00001\PLD\28J972104.DOC-TAM [3] 3 of 28 FILED: ULSTER COUNTY CLERK 04/10/2024 05:40 PM INDEX NO. EF2024-978 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/11/2024 JURISDICTION AND VENUE 11. This Court has jurisdiction pursuant to CPLR §§ 301 and 3001. 12. This Court has jurisdiction pursuant to CPLR 7801- to review actions §§ 7806, by bodies or officers who have failed to perform a duty enjoined upon them by law and who have made a determination in violation of lawful procedure. 13. Venue is properly in Ulster County pursuant to CPLR §§ 504(2) and 506(b) because claims are asserted against the Planning Board for actions taken in Ulster County and because the agency's principal offices are in Ulster County. 14. Venue is proper against Twin Track Promotions, Inc. d/b/a Accord Speedway pursuant to CPLR §§ 503(a), 503(c), and 507. BACKGROUND AND PROCEDURAL HISTORY TTP's History of Approvals 15. TTP purchased the Property containing the Accord Speedway in 1991. At the time, the Property was located in the A Zoning District of the Town of Rochester. In the A Zoning District, operation of a racetrack was a permitted use, subject to Special Use Permit approval by the Planning Board. Further, the Town Code required a separate permit be issued by the Town Board, specifically for the operation of a racetrack. 16. On March 17, 1992, TTP applied to the Planning Board for a Special Use Permit and applied to the Town Board for a racetrack operating permit pursuant to Local Law #3 of 1987. Despite TTP's stated intention to improve the site by adding, among other things, a 6-foot- tall steel and plywood sheeting enclosure for the track, a retention pond, drainage, above-ground storage for waste oil, new clubhouse, lighting, signage, well and septic, no formal Site Plan U:\DOCS\15867\00001\PLD\28J972104.DOC-TAM [4] 4 of 28 FILED: ULSTER COUNTY CLERK 04/10/2024 05:40 PM INDEX NO. EF2024-978 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/11/2024 approval was required by the Town. Instead, the Planning Board conditioned its approval on plan" TTP's submission of a color-coded "site within 14 days of the approval of the Special Use Permit. EXHIBIT B 17. On April 24, 1992, the Town Board, acting as Lead Agency for the simultaneous applications for TTP to begin operations of the Accord Speedway, adopted a Negative Declaration pursuant to SEQRA. EXHIBIT C 18. On April 28, 1992, the Planning Board adopted the conditional Special Use Permit which, among other conditions, allowed TTP to hold up to 40 racing events per year. TTP plan," thereafter submitted a color-coded "site dated May 7, 1992, which did not reflect the proposed well and septic and permanent concession facility, but rather the location of port-a-lets, a portable concession stand, and the proposed location of steel walls and gates. The Planning Board approval and stamp reflects that the map was part of the Special Use Permit application, Site Plan approval was granted. EXHIBIT D 19. Thereafter, in 1993, TTP sought to amend its Special Use Permit and submitted "SDS" an or Subsurface Drip System Plan, dated September 23, 1993, to add well and septic to the Site. The Planning Board approved the amendment to the Special Use Permit on September 28, 1993. Again, no formal Site Plan was required by the Planning Board. EXHIBIT E 20. In 2009, the Town repealed the entirety of their Zoning Code and adopted new zoning regulations. The new Zoning Code was filed with the NYS Department of State and went into effect on October 5, 2009. EXHIBIT F 21. Under the newly adopted Zoning Code, the Accord Speedway property was Conservation" rezoned to the R5 "Rural Zoning District. In the R5 Zoning District, motorized U:\DOCS\15867\00001\PLD\28J972104.DOC-TAM [5] 5 of 28 FILED: ULSTER COUNTY CLERK 04/10/2024 05:40 PM INDEX NO. EF2024-978 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/11/2024 racetracks are not a permitted use, either as-of-right or by Special Use Permit. This rendered TTP's operation of the Accord Speedway a pre-existing nonconforming use. The 2009 Zoning Code and Schedule of Uses remains applicable today. EXHIBIT G 22. In May 2018, TTP again applied to the Planning Board to amend its SUP. TTP applied to remove Condition #2 of the 1992 SUP so that it could expand its existing concession operations to include the sale and consumption of beer and wine on site. EXHIBIT H 23. On June 11, 2018, the Planning Board, acting as Lead Agency, classified the application as an Unlisted Action pursuant to SEQRA and adopted a Negative Declaration. EXHIBIT I 24. The Planning Board held a public hearing on July 9, 2018, and resolved to grant the requested amendment to the 1992 SUP. The Board further resolved that "Site Plan dated May decision." plan" 17, 1992 continues as approved except as amended with this The "site submitted with the application was the same map submitted with the original 1992 SUP application which reflected a portable concession stand, port-a-lets, and did not depict well or septic on the site. Again, this map never received Site Plan approval in 1992, it was merely submitted in support of the SUP application. See Exhibits H & I 25. Upon information and belief, prior to the Planning Board's July 9, 2018, plan," conditional approval to amend the "site TTP had never submitted nor obtained Planning Board approval for a formal Site Plan. TTP's 2023 Application 26. On November 14, 2023, TTP applied for Zoning Permit and Classification to the Town Code Enforcement Office to expand its use of the Property to add a Commercial Events U:\DOCS\15867\00001\PLD\28J972104.DOC-TAM [6] 6 of 28 FILED: ULSTER COUNTY CLERK 04/10/2024 05:40 PM INDEX NO. EF2024-978 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/11/2024 Facility use in order to hold, up to an additional 12, non-racetrack commercial events annually, pursuant to Town Code §140-35. TTP indicated on its application that the project was subject to area" physical restrictions due to the "national wetland and FEMA flood plain existing on the site. EXHIBIT J 27. The Code Enforcement Officer, in a memo to the Planning Board, dated November 21, 2023, issued a determination that confirmed that the parcel is located within the R5 Zoning District and determined TTP must obtain Site Plan approval. He further determined, in direct contradiction to the statements on TTP's application, that "Applicant has met zoning apply." requirements, and no physical restrictions EXHIBIT K 28. On November 27, 2023, TTP applied for Site Plan and Special Use Permit Approval to the Planning Board. On the application, TTP indicated that the application is for an expansion of the existing use. EXHIBIT L 29. TTP included a request that the Code Enforcement Officer/Planning Board find infrastructure" that all SUP approval conditions "have been met by existing and further requested scale" a waiver from the required submittal of a "map to of the Property. EXHIBIT M 30. TTP also submitted a Short Environmental Assessment Form (SEAF) Part 1 on which TTP indicated that the project site contains, or is substantially contiguous to, a building, archaeological site, or district which is listed on the National or State Register of Historic Places, or that has been determined by the Commissioner of the NYS Office of Parks, Recreation and Historic Preservation to be eligible for listing on the State Register of Historic Places. EXHIBIT N U:\DOCS\l5867\00001\PLD\28J972104.DOC-TAM 7 7 of 28 FILED: ULSTER COUNTY CLERK 04/10/2024 05:40 PM INDEX NO. EF2024-978 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/11/2024 31. On December 14, 2023, the Town Code Enforcement Officer, in a letter to the Planning Board, inexplicably granted a "waiver for the need for a special use permit as the changing." current infrastructure is not He further determined that "proposed plans for commercial events do not alter the pre-existing conditions of the site, therefore an amendment of required." the current site plan approval is what is EXHIBIT O 32. The Planning Board held its first meeting regarding TTP's application on December 11, 2023. During the meeting, the Planning Board, despite this being their first review of the application, voted and resolved to waive a requirement for a noise study and granted TTP's request for waiver of a requirement to submit a map to scale. 33. On January 8, 2024, the Planning Board opened the public hearing for the application. Numerous residents of the Town, including Petitioners, expressed their concern regarding both the current operation of the raceway and the proposed expansion of use. Residents stated that the noise already generated by the raceway hindered their use and enjoyment of their properties. Many residents requested that the Board require a noise study and approvals.1 traffic study be conducted prior to the issuance of any 34. The Planning Board Attorney, on January 22, 2024, conducted an instructional SEQRA training meeting to educate the Board members on the duties imposed on them by the Act. During the meeting, he expressed concern that TTP was not required to obtain Special Use Permit approval and indicated to the Board that potential impacts of the proposed expanded use, approvals.2 such as increased noise levels, should be studied and considered prior to issuance of 1 The Minutes from the 1/8/24 Planning Board meeting are unavailable, however a video of the meeting is available on the Town's YouTube Page: https://www,youtube.com/watch?v=tVkwVvqmlLM 2 See Video of 1/22/24 SEQRA Training Meeting: https://www.youtube.com/watch?v=R-NVmNFgWPA U:\DOCS\15867\00001\PLD\28J972104.DOC-TAM [8] 8 of 28 FILED: ULSTER COUNTY CLERK 04/10/2024 05:40 PM INDEX NO. EF2024-978 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/11/2024 35. On January 22, 2024, the Planning Board held a Workshop meeting which Applicant attended. During the meeting, the Planning Board attempted to establish a list of the type of events TTP planned to host on the Site. 36. On February 12, 2024, the Planning Board continued the open Public Hearing. One of the Planning Board members discussed his concerns that there was insufficient additional 3 data, provided by the Applicant, for the Board to consider. 37. Notably, at the time, there was submission from the Applicant regarding the proposed maximum number of attendees for the proposed events. The Applicant stated that the Accord Speedway could potentially host 2,000 vehicles. The Planning Board then discussed that any attendance of over 1,500 people would trigger the need for an additional permit from the Town. 38. The Planning Board Attorney also pointed out that allowing parking for 500 vehicles or more would trigger a review of the Project as Type I Action pursuant to SEQRA. Considering the additional review requirements, the Applicant verbal removed its request to allow concerts to be held on the Site. 39. On March 11, 2023, the Planning Board continued the public hearing. After public comment again requesting further study and consideration by the Planning Board of potential traffic increases and noise level impacts on the community. The Planning Board, after declining to require studies of noise and traffic impacts and declining to even obtain comments on the Project from other potentially interested parties including but not limited to the Fire 3 See video of 2/12/24 Workshop Meeting: https://www.youtube.com/watch?v=zQBMtiGdXCM U:\DOCS\15867\00001\PLD\28J972104.DOC-TAM [9] 9 of 28 FILED: ULSTER COUNTY CLERK 04/10/2024 05:40 PM INDEX NO. EF2024-978 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/11/2024 Department, Highway Superintendent, County Board of Health, voted to close the public hearing4. Exhibit P 40. After closing the Public Hearing, the Planning Board read through the questions enumerated in the SEAF Part 2 and voted to type the expansion of use as an Unlisted Action. The SEAF Part 3 was never completed by the Board or Applicant. The Board then voted to adopt the Negative Declaration finding that the Project would not result in any significant adverse environmental impacts and voted to issue a Resolution of Approval for the Project. See Exhibit A FIRST CAUSE OF ACTION The Planning Board Unlawfully Categorized the Accord Speedway's Expansion of Use as an Unlisted Action 41. During the Planning Board's review of the expansion of use for the Accord Speedway, there was discussion regarding how the Applicant could keep the Project from crossing the threshold of being classified as a Type I Action under SEQRA. The Board ultimately, and correctly, concluded that TTP's proposed parking for about 2,000 vehicles for events on the site would require the Board to review the application as a Type I Action. 42. SEQRA enumerates certain statutory Type I Actions. The list includes "activities... that meet or exceed ... parking for 500 vehicles in a city, town or village having a less." §617.4(b)(6)(iii)5 population of 150,000 persons or