HARTWICK _ Rainbow Enterprises, which operates the Holiday Inn on State route 28, has filed a lawsuit against the Hartwick town planning board over the positive declaration it gave the corporation’s proposal to build a 74-room Hampton Inn next door.

The article 78 proceeding asks the court to overturn the positive declaration which would require Rainbow Enterprises to complete a full Environmental Impact Statement.

During its required State Environmental Quality Review of the project, the planning board cited concerns about transportation and community character. Those concerns were serious enough for the board to consider them large impacts and resulted in the positive declaration.

The lawsuit, filed Nov. 29 in Otsego County Supreme Court, claims the decision by the board was ``arbitrary and capricious and without basis in fact or law’’ and will create a substantial hardship for Erfan Kahn, owner of Rainbow Enterprises.

Kahn’s attorney Robert Davis, of Hancock, included in the exhibits copies of letters from the New York State Departments of Health, Transporation and Environmental Conservation stating they had no problems with the project.

``We have no concerns or objections regarding the revised site plan as presented at today’s site plan review committee,’’ wrote Ronald Coleman the DOT’s acting regional planning and program manager.

The distance the new motel would be from Route 28 was an issue for the planning board, but the suit states that the 103-foot setback from the highway exceeds the setback of virtually all other commercial properties on the east side of Route 28.

The planning board’s concerns about the exterior stucco finish of the new building are misplaced, the suit contends, in that the same stucco finish was approved for both the Holiday Inn and the Howard Johnson’s.

Rainbow Enterprises first filed a site plan application with the planning board in May and filed a full environmental assessment form in June.

After seven meetings with the planning board and complying with numerous requests, the planning board still issued a positive declaration, the suit stated.

According to the suit, if Rainbow Enterprises is forced to perform an Environmental Impact Statement, it will delay the project two to three months and cost at least $30,000 to complete.

If the delay causes them to begin excavation and foundation work after the frost has set in, project manager Fred Riordan estimates it will cost Rainbow Enterprises an extra $300,000.

In addition to the extra cost, the delay may endanger their ability to meet the anticipated date of opening on June 1, 2007.

More than 70 percent of the hotel’s income is derived during an 11-week period from June1 to Sept. 1.

``The economic effects of a further delay of the project would be a severe hardship, not easily overcome,’’ the suit states.

Syracuse attorney Tom Fucillo, who has served as the environmental attorney for the planning board on past occasions, will represent the town in the proceedings.

He said Monday that he had seen the suit and that it is their position the planning board acted appropriately. They plan what he termed a ``vigorous response’’ to the suit.

Attorney Davis could not be reached for comment.