zoning and planning cases
Zoning and Planning
Lebanon Valley Speedway Motocross (use variance)
Howard Commander, the owner of Lebanon Valley Speedway in the town of Stephentown, Rensselaer County wanted to build a motocross racetrack on an 88 acre parcel he owned adjacent to his popular dirt racecar oval. The parcel was zoned residential. The motocross would have run on weekends and weekdays when the auto racetrack was closed, and would have added significant noise pollution to hundreds of homes in the nearby area. On July 1, 2010 Commander received a use variance from the Zoning Board of Appeals (ZBA) of the town of Stephentown to build the motocross.
Mr. Oliver was retained by an adjacent neighbor and Citizens Against Lebanon Motocross (CALM), a local grass-roots group of neighbors concerned about noise and their property values. Oliver brought an Article 78 proceeding to invalidate the use variance for the motocross which had been granted by the Stephentown ZBA.
On September 21, 2010 Supreme Court Rensselaer County determined that the use variance for the motocross granted by the ZBA was invalid and null and void on the grounds that Commander had not complied with the State Environmental Quality Review Act (SEQRA). The court issued an injunction against the town of Stephentown prohibiting it from issuing any permits for the motocross and against Commander prohibiting him from any construction activity, unless and until Commander reapplied to the ZBA for a use variance and the Stephentown ZBA processed the application in compliance with SEQRA.
Commander reapplied to the Stephentown ZBA for the use variance to construct and operate the motocross, and Oliver represented CALM in the process. The ZBA determined that the motocross was a Type I Action under SEQRA and issued a positive declaration requiring preparation of a Draft Environmental Impact Statement (DEIS) and Final Environmental Impact Statement (FEIS). Upon information and belief, Commander spent more than $300,000 in engineering and legal fees in order to prepare the FEIS and process the application.
At a meeting in June 2013 the Stephentown ZBA issued a resolution denying the application for a use variance for the motocross on the grounds that Commander had failed to meet the four prong test for granting a use variance required by Town Law 267–b(2)(b). In making its findings, the ZBA agreed with the arguments advanced by CALM. The ZBA made findings that Commander did not establish that (1) he could not realize a reasonable return from the property under residential zoning, (2) the alleged hardship relating to the property was unique, since a substantial portion of other residences in the district also suffered from reduced property values because of noise from the Lebanon Valley Speedway, (3) the use variance if granted will not affect the essential character of the neighborhood, and (4) the alleged financial hardship was not self-created, since when Commander purchased the property he knew it was negatively impacted by noise from his racetrack. The use variance was denied by a vote of 3 to 2. The motocross was never built. A copy of the Resolution of the Zoning Board of Appeals of the Town of Stephentown dated June 2013 can be obtained from the Oliver Law Office on request.
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