INDEX NO.

EF2020-2205
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 05/17/2021

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
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61 CROWN STREET, LLC; 311 WALL STREET, LLC,
317 WALL STREET, LLC; AND 323 WALL STREET
OWNERS, LLC,
Petitioners,
DECISION/ORDER
For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules

-against- Index EF2020-2205

R.J.I. No. 55-20-0943
Richard Mott, J.S.C.
CITY OF KINGSTON ZONING BOARD OF APPEALS;
ERIC KITCHEN in his capacity as CITY OF KINGSTON
ZONING ENFORCEMENT OFFICER; JM DEVELOPMENT, LLC;
PATRICK PAGE HOLDINGS, L.P.; BLUESTONE REALTY, LLC;
and, WRIGHT ARCHITECT, PLLC,1

Respondents.
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Petition Return Date: March 17, 2021

APPEARANCES:

Petitioners: Victoria Polidoro, Esq.

Rosenhausen Chale & Polidoro, LLC
55 Chestnut Street
Rhinebeck, NY 12572

-and-

J. Scott Greer, Esq.

50 Haight Avenue
Poughkeepsie, NY 12603

Respondents: Kevin R. Bryant, Esq.

Corporation Counsel – City of Kingston
420 Broadway
Kingston, NY 12401

-and-

1 No appearances for Blue Stone Realty, LLC or Wright Architect, PLLC.

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Daniel Gartenstein, Esq.,

Assistant Corporation Counsel – City of Kingston
420 Broadway/P0 Box 3575
Kingston, NY 12402
For City of Kingston Zoning Board of Appeals (ZBA)
and Eric Kitchen in his capacity as City of Kingston
Zoning Enforcement Officer (collectively, City)

Michael A. Moriello, Esq.

Riseley & Moriello
111 Green Street/PO Box 4465
Kingston, NY 12402
For JM Development Group, LLC, Herzog Supply Co, Inc.,
Kingstonian Development, LLC and Patrick Page Holdings, LLC
(Developers)
Mott, J.

The City moves to dismiss this Article 78 petition as moot, based upon new zoning

legislation affecting Developers’ proposed development in the Kingston Stockade Historic

District (KSHD). Developers support the motion. Petitioners oppose and cross-move for

leave to amend the petition to include the City of Kingston Common Council (Council) as a

respondent.

Background

The ZBA interpreted Code § 405-27.1 with reference to the Kingstonian Project

(Project) 2 which proposes new construction of, inter alia, a 32-room hotel and 143

residential units to include 10% affordable housing with street level commercial space.

2 Petitioners challenge the Project via 1 other pending matter, Creda, LLC et al v. City of Kingston Planning
Board, et al, Index No. EF2020-253 (challenges negative State Environmental Quality Review declaration);
and 2 that have been dismissed, to wit: 61 Crown Street, LLC, et al v. NYS Department of Parks, Recreation and
Historic Preservation, et al, Index No. EF2020-2079, (challenges Respondent’s no-adverse impact letter); 61
Crown Street, et al, v. City of Kingston Common Council, et al, Index No. EF2020-2075 (declaratory judgment
action seeking, inter alia, to annul a re-zoning determination involving a Project parcel).

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In 2005, Code § 405-27.1 introduced residential use by special permit in the KSHD

C-2 zoning district by creation of a Multi-Use Overlay District (MUOD). Prior thereto, hotels

had been permitted by special permit, but residential use was not. Code § 405-27.1

neither specifically references new construction, nor defines site or building

enhancements. The State Environmental Quality Review (SEQR) Findings on the MUOD

reference both development and re-development. Among the MUOD purposes is

implementation of the Comprehensive Plan (CP):

“(a) …to adaptively reuse existing commercial and industrial buildings to provide
rental multifamily housing, including affordable housing, ...
(b) ….to encourage mixed-use, mixed-income, pedestrian-based neighborhoods.”
Code § 405-27.1 (A)(2)

Said legislation requires special permit and site plan approval for adaptive reuse of

buildings and “[S]ite and building enhancements that promote a mixed-use, mixed-income,

pedestrian-based neighborhood.” Code § 405-27.1(D). However, it provides that a special

permit must be denied if 5 or more housing units created by adaptive reuse lack a

minimum of affordable housing quota of 20%. Code § 405-27.1(E).

The ZBA upheld Respondent Zoning Enforcement Officer’s determination that Code

§ 405-27.1(D)’s reference to site enhancements includes new construction as contrasted

with building enhancements for redevelopment of existing structures. Further, the ZBA

concluded that the affordable housing provisions apply only to adaptive reuse because,

“[W]hile the legislature may have intended [same to be applicable to all development in the

district] the plain language of the statute provides otherwise.” Finally, the ZBA opined that

the Code is dated, “internally inconsistent and [that] strict application can result in

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unconscionable and unjust results to individual property owners and the community at

large.” Consequently, it called upon the Common Council to reform same.3

On February 3, 2021, the Council resolved to amend Code § 405 to specifically

reference new construction as permitted in the MUOD and imposed a 10% affordable

housing requirement for both adaptive reuse and new residential construction of more

than 5 units.

Petitioners’ 1st cause of action alleges the ZBA’s interpretation is irrational, arbitrary

and capricious, asserting that the zoning code permits residential use by special permit for

adaptive reuse projects only. The 2nd and 3rd, allege that the ZBA determination must be

annulled because the hearing notice failed to specify the agenda item to which it referred,

in violation of POL § 104(1); City Law § 81-a(7), and Code § 405-54(G).

Parties’ Contentions

Petitioners allege standing upon their properties’ proximity (between 200’ and

450’) to the Project, as ripe for adaptive reuse. They claim injury due to the Project’s

massive scale altering the KSHD’s historic character, disrupting their view of its historic

bluff and by adverse impacts to traffic and parking, thereby diminishing the

value/enjoyment of their properties. Further, they aver the ZBA’s arbitrary and capricious

interpretation limiting the affordable housing provision to adaptive reuse prejudices them

financially by providing a competitive advantage to new construction which is less

expensive than the former, even without the affordable housing requirement.

3 ZBA “requests…the Council consider ..amending the..Code to delete the affordable housing guidelines […and]
replace [them] with affordable housing requirements that apply throughout the City…and… amend the Code
to specifically and unambiguously permit new construction of residential units in the MUOD.”

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Petitioners contend the plain meaning of ‘enhancement’ refers to existing buildings,

not new construction, as nowhere else does the Code suggest such correlation despite 16

other references to the term enhancement. They invoke the ZBA’s Code critique and a ZBA

member’s comment that the term site enhancements is not clear, as requiring a legislative

history analysis to discern intent. Such history, they aver, establishes that the ZBA’s

interpretation is overly broad and contradicts the legislative purpose of fostering historic

preservation, per the Council’s Resolution (Resolution) approving the MUOD, SEQR and CP.

They reason that the ZBA’s interpretation favors destruction of historic properties by

incentivizing cheaper new construction. They claim the legislative history refers solely to

regulation of adaptive reuse and does not reference new construction. Further, they cite

the SEQR statement that “no effect would occur to the underlying Zoning District or to uses

or structures that do not meet the [MUOD] special conditions.” Moreover, they claim the

ZBA has rendered the C-2 designation meaningless, by opening the door to any type of

development so long as it partially promotes a mixed use, mixed-income, pedestrian

neighborhood. Alternatively, they maintain that new residential construction, if permitted,

is also subject to the 20% affordable housing requirement.

The City contends Petitioners lack standing as their claimed injury is speculative.

They note Petitioners fail to identify a specific business interest or plan adversely affected

and, instead, improperly seek to have the Court substitute its judgment for that of the ZBA.

Further, it maintains that the MUOD was created to encourage residential development in

mixed use settings and that the Code’s separate reference to site enhancements rationally

refers to development of MUOD sites that are or become vacant.

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Moreover, they deny that the ZBA interpretation favors destruction of historic

buildings, citing the roles of the City’s Landmark Preservation Commission (LPC), SEQR

review and special permit and site plan approvals in protecting the KSHD’s historic

character, addressing traffic, parking and viewshed concerns to ensure zoning/planning

integrity. Finally, they maintain that the ZBA’s call to legislative action does not alter its

interpretation of the plain meaning of the Code’s text, by which it is bound.

Developers reiterate the City’s standing arguments and assert Petitioners’

properties are not proximate to the Project. Further, they claim Petitioners are precluded

from claiming injury upon the ZBA’s interpretation of the affordable housing provision,

since their appeal does not challenge its applicability to their own properties, such that

they are not aggrieved. Moreover, they maintain, inter alia, that the ZBA properly

interpreted the plain meaning of the Code’s text, which trumps the Resolution, CP and

SEQR. Finally, Developers cite the prior approval of 2 new-construction multi-unit

residential developments in City MUODs as past practice, binding the ZBA.

Discussion/Standing

A property owner “in nearby proximity to premises…subject of a zoning

determination may have standing…without pleading and proving special damage, because

adverse effect … can be inferred from…proximity.” Sun-Brite Car Wash, Inc. v Bd. of Zoning

and Appeals of Town of N. Hempstead, 69 NY2d 406, 409-10 [1987]. However, “even a close

neighbor lacks standing,” if their only substantiated objections concern a threat of

increased business competition, as same is not an interest protected by zoning. Id.; Matter

of Rediker v ZBA of Town of Philipstown, 280 AD2d 548, 550 [2d Dept 2001]; Socy. of Plastics

Indus., Inc. v County of Suffolk, 77 NY2d 761 [1991]. Although standing determinations

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should not be heavy-handed, particularly regarding zoning where it is preferable to reach a

resolution on the merits, “permitting everyone to seek review could work against the

welfare of the community by proliferating litigation…unduly delaying final dispositions.”

Sun-Brite Car Wash, Inc. v Bd. of Zoning Appeals of Town of N. Hempstead, 69 NY2d at 413.

Here, Petitioners’ claimed injury concerns matters outside the zone of interest

protected by the Code provision at issue or are improperly based upon claims of unfair

competition. They fail to identify any specific plan of development for their properties that

might trigger the affordable housing provision and the alleged injuries by increased traffic,

diminished parking and effects on historic preservation are not implicated by the ZBA

interpretation. Moreover, said concerns are the subject of Petitioners’ separate legal

challenges to the Project. Consequently, they fail to establish standing. Moreover, even if

Petitioners had standing, they failed to establish the ZBA determination is irrational,

unreasonable or obtained in violation of hearing notice requirements.

Arbitrary and Capricious Review

Generally, courts are required to defer to “a zoning board's interpretation of a local

ordinance—disturbing it only if it is irrational or unreasonable— [but such] deference is

not required when …pure legal interpretation of a statute or ordinance” is involved. Matter

of Mack v Bd. of Appeals, Town of Homer, 25 AD3d 977, 980 [3d Dept 2006]; Matter of

Saratoga County Economic Opportunity Council, Inc. v Vil. of Ballston Spa ZBA, 112 AD3d

1035, 1036 [3d Dept 2013]. A statute’s text “is the clearest indicator of legislative intent

and courts should construe unambiguous language to give effect to its plain meaning.”

Matter of Avella v City of New York, 29 NY3d 425, 434 [2017]; McGrath v. Town of North

Greenbush, 254 AD2d 614 [3rd Dept 1998]. However, ambiguous legislative language, “must

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be strictly construed against the enacting municipality” and resolved in the property

owner’s favor, since zoning regulations are in derogation of common-law. Matter of Salton v

Town of Mayfield ZBA, 116 AD3d 1113, 1114 [3d Dept 2014]; Matter of Atkinson v Wilt, 94

AD3d 1218 [3d Dept 2012].

Here, Petitioners establish no basis to depart from the rule of deference to the ZBA’s

interpretation of the plain meaning of ‘site enhancements’ as it is neither irrational nor

unreasonable. Although C-2 districts did not permit residential use prior to MUOD

enactment, same expanded development opportunities to include residential use by special

permit without prohibiting new construction. Thus, it was rational for the ZBA to conclude

that the separate reference to ‘site enhancements’ authorized new residential construction

on a vacant or to-be-vacated site, so long as it is compliant with MUOD purposes and

obtains the requisite approvals.4 See, e.g., Code §§ 405-27.1(D); 405-61 and Code Chapter

264 (Stockade Historical and Architectural Design District). Moreover, even if a contrary

conclusion would not be unreasonable, a court may not substitute its judgment for that of

the ZBA. Ohrenstein v Zoning Bd. of Appeals of Town of Canaan, 39 AD3d 1041, 1043 [3d

Dept 2007]. In addition, the ZBA’s interpretation provides meaning to the term site

enhancements, thereby avoiding a construction that might render such language

superfluous. Matter of Saratoga County Economic Opportunity Council, Inc. v Vil. of Ballston

Spa ZBA, 112 AD3d at 1037; Matter of Avella v City of New York, 29 NY3d 425, 434 [2017].

4 Code § 405-32 regarding special permits, provides, inter alia,

“That the proposed use [be] of such location, size and character that, in general, it will be in harmony
with the appropriate and orderly development of the district in which it is proposed to be situated
and will not be detrimental to the orderly development of adjacent properties in accordance with
[their] zoning classification...”.

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Further, the ZBA’s conclusion that the affordable housing requirement applies only

to adaptive reuse is unassailable, as same is repeatedly and exclusively mentioned with

respect thereto. Indeed, the ZBA is prohibited from implying zoning restrictions, as

ambiguities must be interpreted to benefit property owners. Id. Matter of Saratoga County

Economic Opportunity Council, Inc. v Vil. of Ballston Spa ZBA, 112 AD3d at 1037; Yeshiva

Talmud Torah Ohr Moshe v ZBA of the Town of Wawarsing, 170 AD3d 1488, 1489 [3d Dept

2019]. Moreover, Petitioners’ insistence that the ZBA interpretation is unfair or unwise is

not a proper consideration, as judicial policy-making is prohibited. Matter of Mack v Bd. of

Appeals, Town of Homer, 25 AD3d at 980.

Finally, the ZBA’s interpretation does not frustrate statutory purposes as evidenced

by proffered CP excerpts. They cite a strategy of permitting mixed-use buildings in C-2

districts, noting that existing structures are primarily mixed-use and include residences.

Indeed, said strategy is listed under the overall goal of ensuring land use that concentrates

residential density and commercial activity in mixed-use cores. See, Matter of McGrath v

Town Bd. of Town of N. Greenbush, 254 AD2d 614 [3d Dept 1998] (zoning law best evidence

of land use policy); see also, Uniformed Firefighters Ass'n, Local 94, IAFF, AFL-CIO v

Beekman, 52 NY2d 463, 471 [1981] (a literal statutory reading should not frustrate

legislative purposes).

Hearing Notice

Petitioners’ claim that notice of the February 13, 2020 public hearing is defective

lacks merit. A certified copy of timely notice of the hearing in the Daily Freeman, a local

newspaper of general circulation, states the content of Petitioners’ appeal to the ZBA as 1 of

3 agenda items and that a public hearing will be held. Moreover, Petitioners participated in

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said meeting through counsel and, consequently, are not prejudiced by the alleged defect.

Code § 405-54(G); General City Law § 81-a (7). Davis v ZBA of City of Buffalo, 177 AD3d

1331, 1332 [4th Dept 2019] (notices stating the time and place of the hearing and

describing the matters to be considered are “sufficient to fairly apprise the public”); Matter

of Gernatt Asphalt Products, Inc. v Town of Sardinia, 87 NY2d 668 [1996]; Gaona v Town of

Huntington ZBA, 106 AD2d 638, 640 [2d Dept 1984].

Accordingly, the petition is dismissed and the motion and cross-motion rendered

moot.

This constitutes the Decision and Order of this Court. The Court is Efiling this

Decision and Order, but Respondent ZBA is not relieved of compliance with the provisions

of CPLR §2220 with regard to notice of entry.

Dated: Hudson, New York

May 14, 2021
__________________________________
RICHARD MOTT, J.S.C.

Papers Considered:

1. Notice of Petition, Memorandum of Law and Petition of Victoria L. Polidoro, Esq., and J.
Scott Greer, Esq., and Verification of Julio Hernandez, dated September 4, 2020 with
Exhibits 1-13;
2. Answer and Memorandum of Law of Kevin R. Bryant, Esq., and Daniel Gartenstein, Esq.,
dated November 5, 2020, with Record on Appeal;
3. Answer, Affidavit and Memorandum of Law of Michael A. Moriello, Esq., dated
November 18, 2020 with Exhibits A-C and Verification of Brad Jordan dated October 29,
2020;
4. Reply Memorandum of Law and Affirmation of Victoria L. Polidoro, Esq., with Exhibit A
and Affidavit of Julio Hernandez, dated December 7, 2020
5. Supplemental Record on Appeal and Certification of Eric Kitchen, City of Kingston
Zoning Enforcement Officer, dated January 15, 2021.
6. Notice of Motion and Affirmation of Daniel Gartenstein, Esq., dated February 4, 2021
with Exhibits 1-5;
7. Supporting Affidavit of Michael A. Moriello, Esq., dated February 11, 2021;

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8. Notice of Cross-Motion Affirmation and Memorandum of Law of Victoria L. Polidoro,

Esq., dated February 16, 2021, with Exhibit A;
9. Opposition Affirmation of Michael A. Moriello, Esq., undated, filed March 9, 2021;
10. Reply Affirmation of Victoria A. Polidoro, Esq., dated March 15, 2021.

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