Kahn owns the Holiday Inn on state Route 28 in Hartwick Seminary and is seeking to build a 74-room, three-story Hampton Inn on the same property. He filed the civil action last year after the board adopted a positive declaration in the required State Environmental Quality Review of the site plan. The positive declaration meant Kahn would have to prepare an environmental impact statement for the project.

There were three main issues which concerned board members enough make the positive declaration. The issues were transportation (traffic), the character of the existing community (the drain on community services, particularly fire and emergency services), and that it sets an important precedent for future projects.

Traffic had been an issue for the planning board from the beginning because plans call for a new entrance to the property.

``I don’t think there should be another curb cut,’’ said planning board member Paul Ingalls in November.

The board was also concerned about the impact of the project on the town’s emergency services and its ability to handle another three-story building.

Hartwick Seminary fire chief Larry Lamb said he was ``really concerned about a three-story building.’’

``I don’t think the town of Hartwick needs more than two stories,’’ he said.

Another significant impact was the precedent created by the size of the three-story inn placed not only on the same property, but also so close to the road.

In his suit, Kahn claimed that he had already received approvals from the Army Corps of Engineers and the Departments of Health, Transportation and Environmental Conservation and that the board’s findings were ``arbitrary and capricious.’’

The planning board’s attorney Tom Fucillo argued that the positive declaration was not ``ripe for review.’’

Dowd agreed with Fucillo saying in his decision that the positive declaration is just a preliminary step in the decision making process and that the project may still be approved. ``...the fact they will now have to expend more time and money to prepare a draft environmental impact statement does not make the matter ripe for review,’’ Dowd wrote.

The court decision went on to state that if it had found the matter was ripe for review, ``the court would also have found that the planning board’s actions would survive this challenge.’’

In his examination of the record, Dowd found the planning board had acted lawfully, taken a ``hard look’’ at the project and made a reasoned elaboration of the basis for its determination.

The record, he wrote, shows the board repeatedly expressed concerns over sight issues on the road in front of the proposed building and fire safety issues because of the height of the building.

The planning board, he added, was not bound by the conceptual approval from the other agencies. Its review is to be a global one as opposed to a piecemeal consideration.

Planning board co-chairman Ferd Thering said Tuesday afternoon that he had not seen a copy of Dowd’s decision, but that he was very happy the decision was in the planning board’s favor.

Last week the Otsego County planning board looked at the plan as part of the state mandated review of projects which are located along state or county highways.

County planning board members also had concerns about the new access road from the state highway.

The board took no action, but plans to meet at the site on August 2 so members can discuss the plan with Kahn before making a recommendation to the Hartwick town planning board.