Expansion Application & Unanimous Denial

The Expansion Application

Nearly a decade after the initial legal battles, NYST — with David and Gregory Lubinitsky listed as co-applicants — submitted a new site plan amendment to the Harpersfield Planning Board in August 2022.^[1] The initial pitch was framed as a modest "go-cart track for children." In reality, the scope expanded dramatically over successive project narrative revisions.^[1]

What the application ultimately sought:^[1]

• Construction of a 0.7-mile, 18-foot-wide mini-track adjacent to the main circuit
• A paved staging area to support the mini-track
• Expanded vehicle types: cars, go-karts, and dirt bikes in addition to motorcycles
• Simultaneous racing on both tracks, up to 40 riders at once
• Peak-day capacity of up to 100 guests
• Extension of operating hours from 9 a.m. to 10:00 p.m.
• Expanding days of operation from 2–4 days per week to 5–7 days per week

Between November 2022 and March 2023, the applicant submitted five different project narratives, a second revised Full Environmental Assessment Form, and a second revised Stormwater Pollution Prevention Plan.^[1] The application also acknowledged — for the first time — the existence of a shooting range with commercial gun and ammunition sales on the property, none of which had been disclosed in any prior filing.^[1]

Unauthorized Pre-Approval Construction

Despite that order, on October 21, 2024 — nearly two years later and five months after the planning board's denial — the DEC confirmed that mini-track construction had resumed without completing the required SEQRA review.^[2] The NYSDEC conducted an inspection of the facility on October 13, 2023 and confirmed the applicant had proceeded with construction in violation of the SPDES General Permit.^[1] Notices of violation were issued on November 16, 2023 and again on January 2, 2025.^[2]

During the same period, members of the public at the September 2023 hearing reported observing construction vehicles entering and exiting the property.^[3] A contact at the Delaware County Economic Commission independently confirmed that two additional airplane hangars had been constructed on the property beyond what appeared on any submitted site plan.^[3]

Public Hearings & the September 2023 Threat to the Board

The public hearing was opened on July 26, 2023 and drew substantial attendance from residents across Harpersfield, Davenport, Worcester, and Kortright.^[4] The hearing was continued through August, September, and October 2023 due to the volume of public comment and new information submitted by the applicant at each session.^[1]

Road impact became a formal issue at a special May 2024 planning board meeting. Davenport Highway Superintendent Fred Utter reported that Parker Schoolhouse Road — a dirt road and school bus route used by track visitors — was already sustaining damage under the track's existing operating schedule.^[2]

September 27, 2023 — David Lubinitsky Threatens the Board

At the September 2023 public hearing, David Lubinitsky addressed the board directly. He disputed the road damage, claimed only 12 noise complaints had been filed (drawing a correction from attorney Phillips, who noted she had submitted ten years of complaints to his attorney),^[3] and then escalated into an on-record threat about the consequences of denying the application.

Attorney Allyson Phillips responded immediately and directly on the record: Lubinitsky was threatening the planning board, and she told him to put his threats in writing and submit them as part of the record. His own attorney, Kenneth Ayers, then advised Lubinitsky to sit down.^[3] The board voted 5-0 to keep the public hearing open.

The Delaware County Planning Board reviewed the application — in three separate referrals — and each time recommended that the Harpersfield Planning Board deny it.^[1]

Unanimous Denial — May 29, 2024

The Harpersfield Planning Board voted unanimously to deny the amended site plan application at its May 29, 2024 meeting.^[2] The denial resolution was drafted by attorney Allyson Phillips of Young/Sommer on behalf of the planning board, runs to more than 20 pages, and documents the full procedural history of the application.^[1]

Primary grounds for denial:^[1]

• Failure to provide a comprehensive noise study as required by the planning board's own acoustic consultant
• Incomplete and contradictory application materials — five different project narratives with conflicting scope
• Applicant's publicly available online calendar demonstrated intent to operate 5–7 days per week, directly contradicting affidavits submitted to the board
• Road damage to Parker Schoolhouse Road under existing operations; anticipated to worsen with expansion
• Unauthorized clearing of approximately five acres of forested buffer area during the application's review
• Resumed construction in violation of DEC permits while SEQRA review was incomplete
• Applicant denied access to the property for a required site visit, citing liability waivers the board declined to sign
• Failure to replenish the required escrow account — no funds provided since October 2023
• Delaware County Planning Board recommended denial on all three referrals
• Extensive history of non-compliance with prior site plan conditions going back to 2011

The denial resolution also made formal findings regarding the shooting range (prohibited; to remain prohibited), overnight camping (prohibited; to remain prohibited), and the airstrip — noting the property's pre-existing status as a registered general aviation airport and that a NYSDOT General Aviation Airport Certificate of Registration had been submitted as part of the application materials.^[1] For more on the aircraft issue, see the Aircraft chapter.