Papers considered: 1. Amended Order to Show Cause dated May 10, 2024; Affirmation of Kyle W. Barnett, Esq., in Support, dated May 7, 2024, with Exhibits A-C; Affidavit of Christine DeBoer in Support, dated September 3, 2024, with Exhibit 1; Affidavit of Rebecca Horner in Support, dated September 3, 2024, with Exhibit 1; Affidavit of James “Jim” Lafferty in Support, dated September 3, 2024, with Exhibit 1; Affidavit of Charles Kopelman in Support, dated September 3, 2024, with Exhibit 1; Affidavit of Marjorie Carlson in Support, dated September 3, 2024, with Exhibit 1; Affidavit of Tina Leeds-Miller in Support dated September 3, 2024, with Exhibit 1; Affidavit of Charles Van Laer in Support, dated September 3, 2024, with Exhibit 1; and Memorandum of Law in Support. 2. Notice of [Cross-]Motion to Dismiss, dated July 8, 2024; Affirmation of Shawn F. Brousseau, Esq., in Support and in Opposition, dated July 8, 2024, with Exhibits A-D; and Memorandum of Law in Support and in Opposition. 3. Memorandum of Law in Opposition to Cross-motion and in Reply on Motion for Preliminary Injunction. 4. Reply Affirmation of Shawn F. Brousseau, Esq., dated September 11, 2024 and Reply Memorandum of Law. For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, Declaratory Judgment, and Injunctive Relief DECISION/ORDER Petitioner-Plaintiffs, Christine DeBoer, Rebecca Horner, James Lafferty, Charles Kopelman, Marjorie Carlson, Tina Leeds-Miller, Jack Miller and Charles Van Laer, bring this combined Article 78/Declaratory Judgment action against Respondent-Defendants, Twin Track Promotions, Inc., (hereinafter “TTP”), doing business as Accord Speedway, (hereinafter the “Speedway”), and the Town of Rochester Planning Board, (hereinafter the “Board”), challenging its negative State Environmental Quality Review Act (“SEQRA”) declaration and its authorization of expanding the Speedway’s existing use as a dirt-track automobile raceway for 40 nights annually to permit an additional 12 non-racing commercial events per year. The types of commercial events initially contemplated by TTP included non-animal circuses, rodeos, car shows, BBQ competitions, small-scale community concerts, and community holiday events, each expected to draw 500 attendees or fewer. TTP later modified its request to exclude concerts and rodeos, and limit parking to fewer than 500 cars, including employees’ cars. Petitioner-Plaintiffs, residents of the Hamlet of Accord, move herein (Motion seq. #2) for a preliminary injunction staying TTP from holding any commercial events pending a final judgment in this action. The Board opposes and cross-moves, (Motion seq. #3), pre-answer, for dismissal. Petitioner-Plaintiffs oppose the cross-motion. The Court considers the motion to dismiss first. THE BOARD’S CONTENTIONS The Board’s motion to dismiss, pursuant to CPLR §§3211(7), 409(b), 7804(f) and 7806, challenges the standing of the Petitioner-Plaintiffs on the ground that they lack standing because their respective residences are located between one-half mile to one and one-half miles from the Speedway, meaning that they will not suffer injury from the impacts beyond those suffered by the community at large. In support of this aspect of its motion, the Board submits a Memorandum of Law containing a Google Earth map identifying the locations of the residences of the Petitioner-Plaintiffs. The Board additionally contends the challenge to its negative SEQRA declaration fails to state a cause of action because it took the required “hard look” at the potential environmental impacts and reached a rational, fact-based determination that the expanded use of the Speedway would have no significant environmental impact. The Board’s failure to refer the application to the Ulster County Planning Board is not grounds for overturning its determination. Furthermore, the Board asserts that it was not required to analyze the application in the context of an expansion of a pre-existing, non-conforming use or otherwise require a special use permit as a commercial event facility because the physical infrastructure of the Speedway will not be changed. PETITIONER-PLAINTIFFS’ CONTENTIONS In opposition to the motion to dismiss, each of the Petitioner-Plaintiffs identified the location of their respective residences and its distance from the Speedway. Each further identified how the Speedway currently interferes with the enjoyment of their property. The Speedway is located in a rural, residential area. Christine DeBoer avers that she resides only 1,217 feet (less than one-quarter mile) from the Speedway. She describes how the traffic and noise on race nights prevents her from traveling to or from her home, from having guests over, and from walking in the street even just to get her mail from the mailbox because cars drive by at high rates of speed. She describes her road as 20-feet wide with steep slopes on each side. Large tractor-trailers drive by her residence, occupying most of the road. On race nights, she has observed cars driving off the road surface and down the slope, requiring a tow. She fears that large tractor-trailer trucks will also be required for the proposed commercial events, making her difficult situation even worse. When the Speedway held a Monster Truck Show, traffic was backed up in front of her house for over an hour. As a result of the backup, vehicles began turning around in her driveway and parking on the side roads. She is concerned that the Board failed to take a hard look at the traffic and noise impacts or the possibility that emergency vehicles will be blocked. Rebecca Horner avers that her property is 2867 feet (0.55 miles) from the Speedway. Like DeBoer, she cannot enjoy a outdoor evening at her home during race nights. She directly feels the impacts of the noise and traffic generated by the Speedway. She also describes her road, Cooper Street, as being barely wide enough for two cars with deep drainage ditches on each side. There are no shoulders or white lines. One time while she was on Whitfield Road, where the Speedway is located, the dust from the racetrack was so pervasive she could not see the edge of the road and feared she would end up in a ditch. She no longer goes out on race nights. Like DeBoer, she is concerned that the Board failed to take the requisite hard look at the noise and traffic impacts of the expansion of the use of the Speedway. Jim Lafferty also resides on Cooper Street, at a distance of 2,464 feet (0.47 miles) from the Speedway. He avers that when the cars are racing, the noise is so pervasive he cannot conduct a normal conversation with his friends and family in his own backyard. Due to the noise, he often forfeits his Friday evenings at home and goes elsewhere. He operates a bed and breakfast where he and his wife would serve dinners outdoors during warmer weather. The noise from the Speedway has required that he and his guests eat indoors, instead of in their cultivated gardens. He is forced to apologize to his guests for the noise from the Speedway. He has been required to advise his guests ahead of their arrival that the traffic on the roads may be impassible when the Speedway is open. The Speedway noise interferes with their sleep. Lafferty also fears walking on the road during race nights. Charles Kopelman avers that he owns property which abuts the Speedway. He has experienced noise and traffic impacts similar to those previously described. He has also experienced the accumulation of garbage on his property after race nights. Kopelman also complains about having to breathe exhaust fumes and dust from the vehicles. In response to same, he must keep his doors and windows shut and remain inside the house. He cannot enjoy an outdoor meal at his residence. Marjorie Carlson lives only 1,105 feet (0.21 miles) from the Speedway. She experiences noise and traffic impacts similar to those previously described. Additionally, her property has been used by race participants to dump race car tires, requiring that she clear her property and haul the tires to the town transfer station. Tina Leeds-Miller’s property is only 1,441 feet (0.27 miles) from the Speedway. Charles Van Laer avers that his property abuts the Speedway. They each detail similar noise and traffic effects. Van Laer asserts that his windows rattle during the races. The distance discrepancies arise from the fact that the Board’s measurements consist of driving distances whereas the Petitioner-Plaintiffs’ measurements consist of direct distances or “as the crow flies” measurements. DISCUSSION/STANDARD ON A CPLR 3211(A)(7) MOTION TO DISMISS In deciding a motion pursuant to CPLR §3211(a)(7), the Court must “accept the facts as alleged in the complaint as true, accord Plaintiff ‘the benefit of every possible favorable inference’” and “determine only whether the facts as alleged fit into any cognizable legal theory”. Nonnon v. City of New York, 9 NY3d 825, 874 NE2d 720, 842 NYS2d 756 (2007); quoting Leon v. Martinez, 84 NY2d 83, 87-88, 638 NE2d 511, 614 NYS2d 972 (1994). The scope of a court’s inquiry on such a motion is narrowly circumscribed to determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action. See, Rovello v. Orofino Realty Co., 40 NY2d 633, 634, 357 N.E.2d 970, 389 NYS2d 314 (1976). The grounds for dismissal under CPLR §3211(a)(7) are strictly limited; the court is not permitted to render a determination upon a thorough review of the relevant facts adduced by both parties, but rather is substantially more constrained in its review, examining only the plaintiff’s pleadings and affidavits (see Rovello v. Orofino Realty Co., 40 NY2d 633, 635, 357 NE2d 970, 389 NYS2d 314 [1976]; Sokol v. Leader, 74 AD3d 1180, 1181, 904 NYS2d 153 [2d Dept., 2010]). In this regard, the Third Department has explained: “In contrast to a motion for summary judgment, a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant — without regard to how compelling claims made in such submissions may appear (see Miglino v. Bally Total Fitness of Greater N.Y, Inc., 20 NY3d 342, 351, 985 NE2d 128, 961 NYS2d 364 [2013]; see also Marston v. General Elec. Co., 121 AD3d 1457, 1458-1459, 995 NYS2d 646 [3d Dept., 2014]). Indeed, upon a motion pursuant to CPLR §3211(a)(7), the party opposing dismissal is allowed a remedy not available to the party seeking dismissal; the court ‘may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, since the ultimate criterion is whether the proponent of the pleading has a cause of action, not whether he or she has stated one’ (Schmidt & Schmidt, Inc. v. Town of Charlton, 68 AD3d 1314, 1315 [3d Dept., 2009]; see Leon v. Martinez, 84 NY2d 83, 88, 638 NE2d 511, 614 NYS2d 972 [1994]; Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 372 NE2d 17, 401 NYS2d 182 [1977]; Chenango Contr. Inc. v. Hughes Assoc., 128 AD3d 1150, 1151, 8 NYS3d 724 [3d Dept., 2015])”. Carr v. Wegman’s Food Mkts., Inc., 182 AD3d 667, 668-669 (3d Dept., 2020); Bennett v. Bennett, 223 AD3d 1013, 1014 (3d Dept., 2024). “[U]nless the motion to dismiss is converted by the court to a motion for summary judgment” (Rovello v. Orofino Realty Co., supra, 40 NY2d at 635), a motion to dismiss is not “in a posture to be resolved as a matter of law”. Miglino v. Bally Total Fitness of Greater N.Y., Inc., supra, 20 NY3d at 351; Carr v. Wegmans Food Mkts., Inc., supra, 182 AD3d at 669. Nonetheless, “where the movant provides evidence extrinsic to the complaint in support of the motion, a court ‘need not assume the truthfulness of the pleaded allegations. Instead, the criterion is whether the proponent of the pleading actually has a cause of action, not whether he [or she] has properly stated one’ (Henderson v. United Parcel Serv., 252 AD2d 865, 866, 675 N.Y.S.2d 715 [3d Dept 1998] [internal quotation marks, ellipsis, brackets and citations omitted]; see Matter of Parvaz v. Public Serv. Commn., 201 AD3d 1211, 1213-1214, 162 N.Y.S.3d 511 [3d Dept., 2022], lv dismissed & denied 38 NY3d 1029 [2022]). In such instance, the plaintiff ‘no longer can rely only on the unsupported factual allegations of the pleading but must submit evidence demonstrating the existence of a cause of action’ (Matter of La Barbera v. Town of Woodstock, 29 AD3d 1054, 1055, 814 N.Y.S.2d 376 [3d Dept 2006], lv dismissed 7 NY3d 844 [2006]).” Whitehead v. Pine Haven Operating LLC, 222 A.D.3d 104, 109-110 (3d Dept., 2023). Where standing is disputed in an Article 78 hybrid proceeding, the “petitioner has the burden of establishing both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated”. Matter of Assoc, for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conserv’n, 23 NY3d 1, 6 (2014). In land use matters, the petitioner ” ‘must show that it would suffer direct harm, injury that is in some way different from that of the public at large’ ” (id. at 6, quoting Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 774, 573 NE2d 1034, 570 NYS2d 778 [1991]; see 159-MP Corp. v. CAB Bedford, LLC, 181 AD3d 758, 761, 122 NYS3d 59 [2020]). Here, the Board’s motion to dismiss is supported by its attorney’s affirmation in which he avers that none of the Petitioner-Plaintiffs has a residence adjacent to the Speedway or lives closer than one-half mile from it. No other affidavits are submitted in support of the motion to dismiss. The Court has not converted the motion to dismiss to one for summary judgment pursuant to CPLR §3211(c). Consequently, the standard herein is whether Petitioner-Plaintiffs have a cause of action, not whether they have properly stated one. The Court finds that each of the Petitioners have, standing. Although the Board asserts that Petitioner-Plaintiffs live outside the area where the noise and traffic effects confer standing, in other words that they suffer no harm beyond that sustained by the public at large, the specific averments made by each Petitioner-Plaintiff are more than sufficient to confer standing. Two Petitioner-Plaintiffs, Charles Kopelman and Charles Van Laer, own property abutting the Speedway and directly suffer from noise, dust and traffic effects well beyond those harms sustained by the public at large. Kopelman suffers the additional harm of garbage dumping on his property. Christine DeBoer, Marjorie Carlson, Tina Leeds-Miller and Jack Miller each reside approximately one-quarter mile from the Speedway and are directly harmed by the traffic and noise effects of having an automobile raceway in their residential neighborhood. Carlson suffers the additional harm of having tires dumped on her property. Rebecca Horner and Jim Lafferty each reside approximately one-half mile from the Speedway and suffer direct harm from the noise and traffic effects. Additionally, the Court finds that the specific harms described by Petitioner-Plaintiffs fall within the zone of interests protected by SEQRA and the Town of Rochester Zoning Law. Accordingly, the motion to dismiss for lack of standing is denied. Regarding the motion to dismiss the First Cause of Action, the Court determines, at this pre-answer stage, that a valid issue exists regarding whether the Board failed to take the requisite hard look at the traffic and noise effects that an additional 12 events per year will have on this residential area and thus, whether the negative SEQRA declaration was arbitrary and capricious. The Court likewise determines, at this pre-answer stage, that a valid cause of action is alleged regarding whether TTP’s application was incorrectly categorized as an Unlisted Action, in violation of SEQRA regulation 6 NYCRR §617.4(b)(9), because it is situated contiguously with the Lucas Krom Historic Stone House, which has been listed on the National Register of Historic Places since 1995. Although the Board contends that the Appellate Division previously upheld the categorizing of the Speedway as an Unlisted Action, citing to Citizens Accord. Inc. v. Town Board of the Town of Rochester, 192 AD2d 985 (3d Dept., 1993), the matter of the Speedway’s proximity to the Lucas Krom Historic Stone House was not at issue in the 1993 decision, because the Krom House was not listed on the National Register until 1995. Thus, this issue is not precluded by collateral estoppel or res judicata. Accordingly, the motion to dismiss the First Cause of Action is denied. Likewise, the Petitioner-Plaintiffs have demonstrated a cause of action at this pre-answer stage regarding whether the Board took the requisite hard look at the noise impacts. The Board decided early in the application review process that it would not require a noise study. Petitioner-Plaintiffs assert that Town of Rochester Town Code §140-20(F)(1)&(2) require such a study for all new commercial uses of land. The motion to dismiss the Second Cause of Action is denied. The Court further finds that Petitioner-Plaintiffs have a cause of action regarding whether the Board failed to take a hard look at the traffic impacts. They assert that the Town Planner, David Church, recommended that TTP’s application be referred to the Fire Department and Highway Superintendent for their respective review and comment prior to any final determination. No such referral was made, nor was any traffic study made. The Board allegedly simply decided that the existing road infrastructure would be sufficient. The motion to dismiss the Third Cause of Action is denied. The Fourth Cause of Action alleges that the Board’s incorrect categorization of the application as an Unlisted Action led to a failure to study the effects on well and septic, which would be required if the Board had correctly categorized the action as a Type I action. As this issue is identical to the issues raised in the First Cause of Action, the Court finds that Petitioner-Plaintiffs have a cause of action. The motion to dismiss the Fourth Cause of Action is denied. The Fifth Cause of Action asserts that the Board failed to refer the application for review to the Ulster County Planning Board for its review in violation of General Municipal Law §239-m. The Board moves for dismissal on the ground that Petitioner-Plaintiffs have failed to identify how the application falls within of the 500-foot zone contemplated by General Municipal Law §239-m(3)(b). Petitioner-Plaintiffs contend that Article 12-B of the GML requires that Type I actions be reviewed by the Ulster County Planning Board and that failure to obtain such review is a jurisdictional defect. The Court agrees that Petitioner-Plaintiffs have failed to establish that TTP’s application meets any of the criteria set forth in GML 239-m(3)(b) which would then require referral to the Ulster County Planning Board. Accordingly, the motion to dismiss the Fifth Cause of Action is granted. In their Sixth Cause of Action, the Petitioner-Plaintiffs allege that the Board failed to review the application as an expansion of a pre-existing, non-conforming use. The Board claims that the pre-existing, non-conforming use is auto racing, and no expansion of auto racing or to the infrastructure of the Speedway itself has been proposed. Thus, the Board asserts it correctly refused to review TTP’s application as one seeking the expansion of a non-conforming use. Petitioner-Plaintiffs assert that the Speedway is now located within the R-5 Rural Conservation District Zone as a result of the Town Code’s amendment and is therefore a non-conforming use. A valid question is raised as to whether a Special Use Permit was required because Commercial Event Venue is listed as a special use in the R-5 District. The Court finds that, at this pre-answer stage, the Petitioner-Plaintiffs have a cause of action regarding whether the failure to review TTP’s application as an expansion of a non-conforming use was arbitrary and capricious or affected by an error of law. Thus, the motion to dismiss the Sixth Cause of Action is denied. The Eighth Cause of Action alleges that the approval of TTP’s application violates the provisions of Town Code §140-45 which prohibits the granting of any approval or disapproval regarding any sketch plan. However, the Board points out that Town Code §140-45 allows it to use a sketch plan to schedule public hearings and that is what it did in this matter. Nonetheless, Condition 13 of the Board’s approval requires TTP to provide an updated sketch plan meeting the requirements of Town Code §140-45 prior to signature by the Chair and the Town Clerk. Accordingly, the Court determines that, at this pre-answer stage, Petitioner-Plaintiffs have a cause of action regarding the alleged violation of Town Code §140-45. The motion to dismiss the Eighth Cause of Action is denied. The Ninth Cause of Action alleges that the challenged determination is unlawful because the Board’s Chair is a Florida resident. Public Officers Law 3 requires a planning board member be a resident of the town. Chairman Marc Grasso is registered to vote in Florida and has been since 2006. The Board does not dispute Grasso’s residence. Instead, the Board’s motion to dismiss the Ninth Cause of Action is based upon the “de facto officer doctrine” which holds that the acts of one who carries out the functions of a public office under color of authority are generally valid as to third persons and the public, and hence immune from collateral attack, notwithstanding irregularities in the manner in which the officer was appointed. See, County of Ontario v. Western Finger Lakes Management Authority, 167 AD2d 848 (4th Dept., 1990); Sylvia Lake Co., Inc. v. Northern Ore Co., 242 NY 144 (1926). Petitioner-Plaintiffs do not oppose this aspect of the Board’s motion. In any event, the Court notes that a person may have only one domicile, she or he may have more than one residence. Accordingly, the motion to dismiss the Ninth Cause of Action is granted. The Tenth Cause of Action asserts that the determination challenged herein was made in violation of the Open Meetings Law (Public Officers Law §106[3]) which requires that the minutes of all public meetings be made available to the public within 2 weeks from the date of the meeting. As of April 10, 2024, the date of the Petition/Complaint, minutes from the meetings held on January 8, January 22 and February 12, 2024, had not been made available to the public. The Board acknowledges that a violation of the Open Meetings Law renders the ensuing determination voidable upon good cause shown (see, Southern Realty and Development LLC v. Town of Hurley, 218 AD3d 331 [3d Dept., 2023]) but argues that no good cause exists. In its opposition, Petitioner-Plaintiffs fail to offer any good cause why the alleged Open Meetings Law violation should render the determination void. Accordingly, the motion to dismiss the Tenth Cause of Action is granted. DISCUSSION/MOTION FOR A PRELIMINARY INJUNCTION The standard for the issuance of a preliminary injunction requires the Court to consider: (1) the likelihood of success on the merits; (2) the danger of irreparable harm to the moving party in the absence of an injunction; and (3) the balancing of the equities in movant’s favor. Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839, 840 (2005); see also, CPLR §6301; Doe v. Axelrod, 73 NY2d 748, 750 (1988). Significantly, the motion for a preliminary injunction is not opposed by TTP, whose activities would be enjoined. The Court finds that there exists a likelihood of eventual success on the merits as to the First Cause of Action in that the SEQRA regulations, 6 NYCRR §617.4(b)(9), require an action to be categorized as a Type 1 action when the proposal is “…substantially contiguous to, any historic building…listed in the National Register of Historic Places…”. Furthermore, the Court concludes there is a likelihood of success on the Third Cause of Action alleging that the Board failed to take a hard look at the traffic impacts of the commercial events. Additionally, the Court perceives a likelihood of success on the merits of the Sixth Cause of Action as it appears that the application should have been reviewed as the expansion of a pre-existing, non-conforming use, requiring a Special Use Permit for the proposed Commercial Event Venue. As to the Seventh Cause of Action, which, aside from the motion regarding standing, was not subject to a separate motion to dismiss, the Court also finds a likelihood of success on the merits. However, the Court does not perceive that irreparable harm will occur to the Petitioner-Plaintiffs if the 12 commercial events per year are allowed to proceed while this action is pending. The Court is sympathetic to the substantial traffic and noise effects as well as the dumping of tires and garbage identified by the Speedway’s neighbors, but these temporary annoyances and inconveniences do not rise to the level of “irreparable injury”, defined as “that which cannot be repaired, restored or adequately compensated in money, or where the compensation cannot be safely measured”. Backhaus v. McMann, 2014 NY Misc. LEXIS 2391 (Sup. Ct., Suffolk Co., 2014); McLaughlin, Piven, Vogel, Inc. v. W.J.Nolan & Co., 114 AD2d 165 (2d Dept., 1985). Finally, the Court finds that the balancing of the equities leans significantly towards the Petitioner-Plaintiffs because they are being disturbed in the use and enjoyment of their homes by TTP’s proposed commercial venture. TTP’s failure to oppose the request for a preliminary injunction adds to the equities balancing in Petitioner-Plaintiff’s favor. Accordingly, the Court, having considered the relevant factors and in the exercise of its discretion, grants the requested preliminary injunction. Any other contentions of the parties have been considered and are deemed to be without merit or have been rendered academic. Therefore, it is hereby ORDERED, that the motion to dismiss the Petition/Complaint for lack of standing is denied as to each of the individual Petitioner-Plaintiffs; and it is further ORDERED, that the motion by Respondent-Defendant, Town of Rochester Planning Board, to dismiss is granted as to the Petitioner-Plaintiffs’ Fifth, Ninth and Tenth Causes of Action; and it is further ORDERED, that the motion by Respondent-Defendant, Town of Rochester Planning Board, to dismiss is denied as to the Petitioner-Plaintiffs’ First, Second, Third, Fourth, Sixth, and Eighth Causes of Action1; and it is further ORDERED, that the motion by Petitioner-Plaintiffs for a preliminary injunction is granted; and it is further ORDERED, that within 10 days from the date of this Decision/Order, Petitioner-Plaintiffs shall post an undertaking, pursuant to CPLR §6312(b), in the amount of $1.00 each2; and it is further ORDERED, that, upon the posting of the undertaking by Petitioner-Plaintiffs, pending a final determination of this action Respondent-Defendant, Twin Track Promotion, Inc., d/b/a Accord Speedway, is hereby enjoined from advertising, conducting, and/or hosting any non-racing Commercial Events; and it is further ORDERED, that Respondent-Defendant, Town of Rochester Planning Board, is directed to file and serve its Answer and Return within 20 days of the date of this Decision/Order. This shall constitute the Decision/Order of the Court. The Court is e-filing the original of this Decision/Order, relieving the parties of their obligations pursuant to CPLR §2220 regarding filing and entry of same but that does not relieve the parties of their obligations regarding service of same with notice of entry thereon. Dated: October 28, 2024
