The Airport Before the Track
Before New York Safety Track existed — before the planning board application, before the litigation, before the noise complaints — the 150-acre property at 396 Zimmerman Road, Harpersfield was an airport.
Mountain Top Airport was a registered private airstrip situated at elevation in the Catskill Mountains, with a grass runway and a hangar. When David Lubinitsky purchased the property in October 2011 through his entity Mountaintop Airfield, LLC — the name itself reflecting the property's aviation history — the transaction included the log house, the hangar, and the functioning registered runway.[1]
The May 29, 2024 planning board denial resolution makes this explicit in its formal findings:[2]
"The Property was improved with a single family residence, a second building described as an airplane hangar, and functioning air strip or runway."
When the 2.1-mile motorcycle track was constructed in 2012, it was built on the site of — and alongside — this pre-existing aviation infrastructure. The airstrip, hangar, and associated aviation use were never part of any site plan application submitted to the Harpersfield Planning Board, as they predated the planning board's jurisdiction over the commercial use of the site.[2]
FAA Registration — Active General Aviation Airport
The airstrip at 396 Zimmerman Road is not a legacy feature. It is a currently registered general aviation facility under the Federal Aviation Administration.
As part of the 2022–2024 site plan amendment application, the applicant submitted to the Harpersfield Planning Board a NYSDOT General Aviation Airport Certificate of Registration.[2] This submission — specifically cited in the denial resolution's March 2023 lead agency coordination notice — confirms the property maintains an active, registered airstrip recognized by the state and federal aviation authorities.
The airstrip at 396 Zimmerman Road is a legally registered general aviation airport, not merely a historical artifact. Its active FAA registration was confirmed by the applicant's own submission to the planning board in March 2023.[2] The property name — Mountaintop Airfield, LLC — and the applicant entity name directly reflect this aviation identity.
July 2023 — Stunt Flying Raised at Public Hearing
The July 26, 2023 Harpersfield Planning Board public hearing was the first on-record session at which aircraft activity was raised as a formal concern. Multiple independent witnesses — a neighboring property owner, a second resident, a third-party account, and a planning board member — all raised aircraft-related issues during the same hearing.[3]
Flora Zimmerman — Early-Morning Flights
Flora Zimmerman, the only property owner directly bordering the track on Zimmerman Road, testified about the cumulative noise burden from the facility, specifically calling out the aircraft:
"That is not a fair assessment of what she is hearing, living next door to the track, especially when the airplane flies over at 8 a.m."
— Flora Zimmerman, as recorded in the July 26, 2023 Planning Board minutes [3]
C.W. Henshall — "Every Morning"
Resident C.W. Henshall of Teedle Brook Road independently corroborated this:
"There are airplanes flying almost every morning over the house."
— C.W. Henshall, as recorded in the July 26, 2023 Planning Board minutes [3]
Susan Fortier — Spooked Horse Incident
Resident Susan Fortier relayed a third-party account involving a neighbor on Harper Hill Road, where an airplane had spooked a horse, resulting in significant veterinary bills when the animal was injured.[3]
Board Member Walt Keller — FAA Compliance & Stunt Flying Video
The most formally consequential aircraft testimony came from planning board member Walt Keller, who raised explicit regulatory concerns based on video he had found online:
Keller stated he had researched FAA regulations and that FAA approval is required to hold an air show. He said he did not believe the operator had FAA approval to fly over people standing along the runway upside down, characterizing that as constituting a stunt show. He stated: "I want to see the application that you are going to apply for a stunt show and when those applications go in a copy must be submitted to the town hall. What we saw on the internet was ridiculous — that guy was real low. Whoever was flying that plane, that wasn't real smart. My goal is health and safety." He further described the aircraft as flying approximately 20 feet off the runway while making smoke — consistent with aerobatic or airshow-style performance flying.
Jordan Hitch (appearing on behalf of the applicant) stated she had not seen the video Keller was referring to.[3] Board member D. King also noted that the NYST Facebook page showed an airplane flying overhead as part of the facility's promotional material.[3]
September 2023 — Aerobatics Complaints on the Record
By the September 27, 2023 continuation of the public hearing — attended by more than 50 residents — aircraft complaints had become more pointed. Resident Gabby Leach of Rose Land, who had lived near the track since it opened, addressed the flying activity directly:
"Have a runway for planes and not for acrobatics and buzzing our homes. We've been abused by the aerobatics over our houses."
— Gabby Leach, September 27, 2023 Planning Board hearing [4]
When David Lubinitsky himself addressed the board, he attempted to minimize the flying activity by stating that only 32 flights had been logged since January 4 of that year — approximately one flight every eight days.[4] The audience's response was immediate laughter, with multiple residents calling out that he flies every morning, directly contradicting his characterization.
Four independent witnesses at two separate planning board hearings (July and September 2023) raised aircraft concerns: a board member who cited specific FAA regulatory concerns and described a video of low-altitude stunt flying;[3] a resident who described daily early-morning flights;[3] a second resident who independently corroborated near-daily morning flights;[3] one account of an aircraft spooking a horse;[3] and one resident who specifically used the word "aerobatics" and described the flying as "buzzing our homes."[4]
November 2023 — Additional Hangars Reported
At the November 16, 2023 special planning board meeting, board member Walt Keller raised a new concern: members of the public had reported that two additional hangars had been constructed on the property, beyond what was shown on any submitted site plan.[5]
The board reviewed the submitted site plan maps to determine what structures were actually shown, and subsequently voted to conduct a site visit to verify current conditions.[5] The applicant ultimately blocked that visit by requiring each board member to sign a sweeping liability waiver and disclose confidential personal medical information as conditions of entry. On advice of counsel, the board members declined to sign and were denied access.[2]
The report of two additional hangars originated with a contact at the Delaware County Economic Commission (DCEC), as relayed at the September 27, 2023 public hearing by resident Linda Denovia,[4] and was reiterated by Keller at the November 2023 special meeting.[5] The site visit that would have allowed verification was blocked by the applicant. The status of any additional hangars was never formally confirmed or denied in any public record.
FAA Permit & Regulatory Concerns
Board member Keller's concerns at the July 2023 hearing were grounded in federal aviation regulation.[3] The relevant framework:
- Air shows and aerobatic events over persons on the ground require specific FAA authorization — typically a Certificate of Waiver or Authorization (COA) — because standard FAA regulations prohibit aerobatic flight below 1,500 feet over congested areas and over any open-air assembly of persons[6]
- Inverted flight over spectators (what Keller described seeing in the video) falls within the category of aerobatic exhibition that requires a specific waiver, not merely a valid private pilot certificate and a registered airstrip[6]
- Low-altitude flight over people at approximately 20 feet (as Keller described) would be well below the minimum safe altitudes prescribed by 14 CFR Part 91 for flight over persons not involved in the operation of the aircraft[6]
- The property's FAA registration as a general aviation airport authorizes landing and takeoff operations — it does not authorize aerobatic performances or airshow-type activities over persons on the ground[6]
Keller demanded that the applicant submit any FAA stunt show applications to Town Hall when filed, and that stunt flying activities be disclosed in the site plan materials. The applicant's representative stated she had not seen the video being referenced and did not directly respond to the regulatory question.[3] The matter was never formally resolved in the planning board proceedings.
Source Documents
| Document | Date | Aircraft Content |
|---|---|---|
| Public Hearing Notice — NYST Site Plan Amendment | July 11, 2023 | Formally identifies applicant as "Mountaintop Airfield, LLC" |
| Planning Board Meeting Minutes [3] | July 26, 2023 | Flora Zimmerman airplane testimony; C.W. Henshall "every morning"; Susan Fortier horse incident; Keller FAA concerns and stunt video; D. King Facebook airplane reference |
| Planning Board Meeting Minutes | October 25, 2023 | Continued public hearing; additional neighbor aircraft noise references |
| Special Meeting Minutes [5] | November 16, 2023 | Keller raises two additional hangars; site visit voted; access later denied |
| Draft Resolution Denying Site Plan Amendment [2] | May 29, 2024 | Formally documents pre-existing airstrip and hangar; cites NYSDOT General Aviation Airport Certificate of Registration |
Citations
- Verified Petition of David Lubinitsky for Judicial Dissolution of New York Safety Track LLC, Queens County Supreme Court, Index No. 715877/2025, filed June 3, 2025. Background on property acquisition including airstrip and hangar.
- Draft Resolution Denying Application for Site Plan Amendment — Application of Mountaintop Airfield, LLC, Harpersfield Planning Board, May 29, 2024. Prepared by Allyson Phillips, Young & Sommer LLC. Documents pre-existing airstrip, hangar, NYSDOT airport certificate submission, and applicant's denial of site visit. Available via Town of Harpersfield: download_file/239/198.
- Town of Harpersfield Planning Board, Meeting Minutes, July 26, 2023. Primary source for all July 2023 aircraft testimony including Zimmerman, Henshall, Fortier, Keller, and King statements. Available via Town of Harpersfield: download_file/160/198.
- Town of Harpersfield Planning Board, Public Hearing Minutes, September 27, 2023. Primary source for Gabby Leach aerobatics testimony and David Lubinitsky's 32-flight response. Available via Town of Harpersfield website.
- Town of Harpersfield Planning Board, Special Meeting Minutes, November 16, 2023. Source for additional hangars report and site visit vote. Available via Town of Harpersfield: download_file/187/198.
- 14 C.F.R. Part 91 (Federal Aviation Regulations — General Operating and Flight Rules), including §91.303 (aerobatic flight), §91.119 (minimum safe altitudes), and FAA Order 8900.1 governing air show and aerobatic event waiver requirements.