                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 17, 2015                   520501
________________________________

In the Matter of KITTY L.
   BALLARD et al.,
                    Petitioners,
      v                                     MEMORANDUM AND ORDER

NEW YORK SAFETY TRACK LLC
   et al.,
                    Appellants.
________________________________


Calendar Date:   October 16, 2015

Before:   McCarthy, J.P., Rose, Lynch and Devine, JJ.

                             __________


      Whiteman Osterman & Hanna, LLP, Albany (John J. Henry of
counsel), for New York Safety Track LLC and another, appellants.

      Young/Sommer LLC, Albany (Allyson M. Phillips of counsel),
for Town of Harpersfield Code Enforcement Officer, appellant.

                             __________


Devine, J.

      Appeal from a judgment of the Supreme Court (Burns, J.),
entered November 3, 2014 in Delaware County, which, among other
things, partially granted petitioners' application, in a
proceeding pursuant to CPLR article 78, to, among other things,
annul a determination of respondent Town of Harpersfield Code
Enforcement Officer regarding the use of certain property by
respondent New York Safety Track LLC.

      The facts underlying this case are more fully set forth in
our decision in a related matter, Matter of Ballard v New York
Safety Track LLC (126 AD3d 1073 [2015]). Briefly, the Town of
Harpersfield Planning Board granted site plan approval for
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respondent New York Safety Track LLC (hereinafter Safety Track)
to operate a motorcycle safety training facility at a converted
former airport. In January 2013, Safety Track was advised by
respondent Town of Harpersfield Code Enforcement Officer
(hereinafter CEO) that the races and other large events occurring
at the track were not authorized uses pursuant to the site plan.
An agreement was thereafter executed between Safety Track and the
Planning Board, among others, that "purported to outline Safety
Track's approved land uses for May 1, 2013 to December 31, 2013"
(Matter of Ballard v New York Safety Track LLC, 126 AD3d at
1074). The agreement was challenged in a combined CPLR article
78 proceeding and declaratory judgment action and, in January
2014, Supreme Court "annulled it and made declarations regarding
the scope of Safety Track's permissible land uses" (id.).

      Safety Track subsequently requested, as permitted by the
Town of Harpersfield Site Plan Review Law, a determination by the
CEO as to whether specified activities at the track would require
further site plan approval. The CEO issued his determination in
May 2014, in which he declined to assess whether the activities
were permitted under the terms of the January 2014 judgment and
found that most of them would not require further review under
the Site Plan Review Law. Petitioners commenced the instant
proceeding to challenge the CEO's determination.1 Supreme Court,
among other things, granted the petition to the extent of
annulling certain portions of the CEO's determination. Safety
Track and respondent Mountain Top Airfield LLC and, separately,
the CEO, have now appealed from that judgment. During the
pendency of this appeal, we reversed that part of the January
2014 judgment that made declarations regarding the uses permitted
under the site plan approval (Matter of Ballard v New York Safety
Track LLC, 126 AD3d at 1075-1076).

      While Supreme Court correctly categorized the relief sought
by petitioners as a challenge to the determination of the CEO as


    1
        Petitioners also sought to have the CEO held in civil and
criminal contempt for disregarding the January 2014 judgment, but
the parties subsequently stipulated to the discontinuance of
those claims.
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arbitrary and capricious (see CPLR 7803 [3]; Matter of Scherbyn v
Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757
[1991]; Matter of Posada v New York State Dept. of Health, 75
AD3d 880, 882 [2010], lv denied 15 NY3d 712 [2010]), the relief
granted cannot be sustained. Respondents specifically argue that
Supreme Court erred in concluding that the CEO irrationally
refused to take a position on whether the specified uses ran
afoul of the January 2014 judgment, which declared that the site
plan approval was limited to certain activities because of
representations made by Safety Track in the lead-up to the grant
of that approval by the Planning Board. Since we subsequently
reversed that part of the January 2014 judgment (Matter of
Ballard v New York Safety Track LLC, 126 AD3d at 1075-1076), and
the CEO cannot be faulted for failing to adhere to or otherwise
interpret judicial declarations that no longer exist, the
judgment before us cannot stand (see Reed v Commercial Union Ins.
Co., 101 AD2d 716, 716 [1984]).

      Our review of the appealed-from judgment leaves us
skeptical that Supreme Court annulled any part of the
determination upon grounds other than the CEO's failure to
grapple with the January 2014 judgment. Regardless, in the
absence of the January 2014 judgment, we perceive nothing
irrational in the determination of the CEO that the bulk of the
proposed activities did not constitute a "[c]hange in the use" of
the property or otherwise constitute activity that would be
subject to further site plan review.

      As a final matter, we are well aware that the 2014 judgment
was reversed in relevant part so that Supreme Court could develop
the evidentiary record as to what limits on site use were
contemplated as part of the initial site plan approval (Matter of
Ballard v New York Safety Track LLC, 126 AD3d at 1075-1076).
Nothing in this decision should be read as precluding Supreme
Court from making declarations in that regard, which may well
require analysis of any future determination by the CEO as to
whether additional site plan review is needed.
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     McCarthy, J.P., Rose and Lynch, JJ., concur.



      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as partially granted
petitioners' application; petition dismissed in its entirety;
and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
