INDEX NO.

EF2022-2309
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/04/2023

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
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JAMES F. SHAUGHNESSY, JR., LARISSA SHAUGHNESSY, DECISION/ORDER
61 CROWN STREET, LLC, 311 WALL STREET, LLC,
317 WALL STREET, LLC 323 WALL STREET OWNERS, LLC, Index No. EF2022-2309
63 NORTH FRONT STREET, LLC, 314 WALL STREET, LLC, Richard Mott, J.S.C.
328 WALL STREET, LLC, and 44 NORTH FRONT STREET
OWNER, LLC.,
Petitioners,

For a Judgment pursuant to Article 78 of the

Civil Practice Law and Rules and a Declaratory
Judgment Pursuant to Section 3001 of the CPLR

-against-

CITY OF KINGSTON PLANNING BOARD, THE CITY

OF KINGSTON, JM DEVELOPMENT GROUP, LLC,
HERZOG SUPPLY CO., INC., KINGSTONIAN
DEVELOPMENT, LLC, PATRICK PAGE HOLDINGS, L.P.,

Respondents.
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Petition Return Date: June 2, 2023

APPEARANCES:

Petitioners Benjamin Neidl, Esq.

E. Stewart Jones Hacker Murphy, LLP
28 Second Street
Troy, New York 12180

Victoria L. Polidoro, Esq.

Rodenhausen, Chale & Polidoro, LLC
55 Chestnut Street
Rhinebeck, New York 12572
Co-counsel for Petitioners

Respondents Barbara Graves-Poller, Esq.

City of Kingston, Office of Corporation Counsel
420 Broadway
Kingston, New York 12401
For: City of Kingston Planning Board (PB) and City of Kingston
(collectively, City)

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Michael A. Moriello, Esq.

Riseley & Moriello, PLLC
PO Box 4465
Kingston, New York 12402
For: JM Development Group, LLC, Herzog Supply Co., Inc.,
Kingstonian Development, LLC, Patrick Page Holdings, L.P.
(Developers)
Mott, J.

Petitioners in this Article 78 proceeding and declaratory judgment action seek

injunctive and declaratory relief annulling the PB’s October 17, 2022 Resolution

conditionally approving a site plan (SP) and special use permit (SUP) for the Kingstonian

Project (Project).

Background

The facts and circumstances underlying this matter are fully developed in the

Court’s prior Decisions and Orders primarily denying Petitioners’ challenges to this

Project,1 and in the February 17, 2023 Decision and Order denying preliminary injunctive

relief to Petitioners and granting limited relief to Respondents, to wit:

1 Petitioners have challenged this Project in 10 dismissed matters, to wit: Creda, LLC et al v. City of Kingston
Planning Board, et al, EF2020-253 affd. Creda, LLC v City of Kingston Planning Bd., 2023 NY Slip Op 00355 [3d
Dept Jan. 26, 2023] (challenging negative State Environmental Quality Review -SEQR- declaration); 61 Crown
Street, et al, v. City of Kingston Common Council, et al, EF2020-2075 (declaratory judgment action seeking,
inter alia, to annul a re-zoning determination involving a Project parcel) affd. 61 Crown St., LLC v City of
Kingston Common Council, 206 AD3d 1316 [3d Dept 2022]; 61 Crown Street, LLC, et al v. NYS Dept. of Parks,
Recreation and Historic Preservation, et al, EF2020-2079, affd. 61 Crown St., LLC v NYS Dept. of Parks,
Recreation and Historic Preservation, 207 AD3d 837 [3d Dept 2022] (challenging no-adverse historic
preservation impact letter); 61 Crown Street, LLC, et al v. City of Kingston Zoning Board of Appeals, EF2020-
2205, affd. 61 Crown Street, LLC, et al v. City of Kingston Zoning Board of Appeals, 2022 NY Slip Op 06845 [3d
Dept Dec. 1, 2022] (challenge to ZBA interpretation of zoning ordinance); 61 Crown Street, LLC, et al v. Ulster
County Industrial Development Agency, et al, EF2021-1389 (challenge to a PILOT grant); 61 Crown Street, LLC,
et al v. City of Kingston Common Council, et al, EF2021-1496 (challenge to re-zoning benefitting the Project,
granted in part via remand for SEQR compliance as to 10% requirement for affordable housing citywide) as
modified, 61 Crown St., LLC v City of Kingston Common Council, 217 AD3d 1144 [3d Dept 2023] (granting the
petition in its entirety and annulling the zoning amendment as to new residential construction as of right in
the KSHD for lack of appropriate SEQR review); 61 Crown Street, LLC, et al v. City of Kingston Common Council,
et al, EF2021-3014 (challenging a Council Resolution authorizing conveyance of easements over Fair Street
Extension); Shaughnessy, Jr., 61 Crown Street, LLC, et al v. City of Kingston Common Council, et al, EF2022-29
(anticipatory challenge to Council vote on street closure/abandonment seeking injunctive and declaratory

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“dismissing the petition as to the Shaughnessys for lack of standing and the 7th cause
of action for failure to state a claim; the Developers’ motion is granted collaterally
estopping Petitioners from claiming a significant impact of the Project on the
historic character of the KSHD to the extent the Project design subject to SEQR
review is the same as considered on SP/SUP review.”

The challenged Resolution references the Project’s compatibility with the

Comprehensive Plan and surrounding structures and relies upon, inter alia, a detailed site

plan submitted with the Petition, the PB’s SEQR findings and those of the New York State

Office of Parks Recreation and Historic Preservation and City of Kingston Landmarks

Historic Preservation Commission, in addition to numerous meetings, public hearings,

consultations with experts and City agencies and detailed site plans.

Petitioners remaining 6 causes of action allege (1) violation of lawful procedure and

lack of substantial evidence by the PB’s failure to require SP review of a parcel containing a

Project structure, to wit: the area of the footbridge landing on Clinton Avenue Extension on

a City-owned right-of-way, adjacent to railroad tracks. Petitioners contend the support

structure for the footbridge is a building within the meaning of the Kingston City Code (CC)

§ 405-30(F), requiring SP review; (2) that the Resolution is conclusory/arbitrary, with

respect to the Project’s compatibility with surrounding structures and parking sufficiency,

citing the Resolution’s grant of a parking waiver permitting the use of 181 spaces of

overflow parking in neighboring Kingston Plaza to fulfill its public parking quota, which

Petitioners claim is an unenforceable condition as no guarantee of the third party

commitment is in writing; (3) an arbitrary/deficient application of SUP criteria, regarding

relief); Shaughnessy, Jr., et al v. Noble in his capacity as Mayor of the City of Kingston, et al. Index No. EF2022-
1147 (challenge to street abandonment/easement benefitting the Project); 61 Crown Street, LLC, et al v. City of
Kingston Landmarks Historic Preservation Commission, et al EF2022-1304; and a discontinued proceeding, to
wit: 61 Crown Street, LLC et al, v. City of Kingston Heritage Area Commission, EF2021-2986; a proceeding
withdrawn, without prejudice, 61 Crown Street, LLC, et al, City of Kingston Common Council, et al, EF2021-
3243 (challenging hearing compliance for municipal street abandonment vote and seeking injunctive relief).

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the Project’s lack of harmony with the KSHD’s historic character as to its

location/size/materials and parking resources; (4) that the PB’s waiver of a recreation fee

in lieu of parkland is irrational as it failed to evaluate present/anticipated need for City

parks/recreation based upon population growth and because the Project’s planned plaza

and public toilet amenity does not constitute a park and is supported by nothing more than

the self-serving letter of Joseph Bonura, a Project developer, see, CC § 347-1(B); (5) that the

Resolution must be annulled because it incorporates writings of third parties by its

reference to all Project-related legal proceedings as a basis for its determination, thereby

improperly relying upon party submissions, where only PB members are authorized to

render findings; (6) that the Resolution arbitrarily extends the life of the approvals beyond

the prescribed 4-month period for obtaining a building permit to 2 years; see, CC § 405-

30(e).

Parties’ Contentions

Developers claim that the site plan (SP) and special permit approval (SUP) are

compliant with procedural and substantive requirements and rationally supported by the

record. The Municipal Respondents claim that all remaining Petitioners lack standing.

As to the 1st cause of action Respondents aver that General City Law §27-a does not

require separate approvals for Site Plans comprised of more than one parcel and may be

approved collectively, provided that the “arrangement, layout, and design of the proposed

use is shown in each instance”.

Discussion/Standing

In the context of zoning disputes, it is desirable that land use disputes be resolved

on their own merits rather than by preclusive, restrictive standing rules. Sun-Brite Car

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Wash, Inc., v Bd. Of Zoning Appeals, 69 NY2d 406, 413 (1987). Proof of special damage or in-

fact injury is not required in every instance to establish that the value or enjoyment of

one's property is adversely affected. Id. Direct harm or injury may be presumed by a

showing of close proximity to the property at issue. Barnes Rd. Area Neighborhood Assn. v

Planning Bd. Of the Town of Sand Lake, 206 AD3d 1507 (App. Div. 3 Dept., 2022).2

Nonetheless, a petitioner must also satisfy the second half of the test for standing,

namely that the interest asserted is arguably within the zone of interest to be protected by

the statute. Sun-Brite, supra, at 414. Petitioners challenge the SP/SUP approval in part

based upon the project’s impact upon parking in the vicinity of the project. Petitioners’

claim that the lack of adequate parking is relevant “to whether land owners in the

neighborhood are suffering unreasonable interference with the incidents of ownership”, is

sufficient to meet the zone of interest criteria for standing. Kingston City Code §405-

30(A)(3) requires site plan approval for any change in use or intensity of use which will

affect the characteristics of the site in terms of “parking, loading, drainage access or

utilities”. KCC §405-30(C)(4) provides that mandatory site plan criteria include, “[T]hat

adequate off-street parking and loading spaces are provided to prevent the parking in

public streets of vehicles of any persons connected with or visiting the use…”.

Accordingly, the Court determines that the remaining Petitioners have satisfied the

requirements for standing to bring this action.

Discussion / 1st Cause of Action

“(1) As used in this section the term ‘site plan’ shall mean a rendering, drawing, or
sketch prepared to specifications and containing necessary elements, as set forth in

2 Unlike the Shaunessys, the remaining Petitioners allege standing based upon close proximity to the
project and their location within the KSHD, along with an allegation that these properties will be
detrimentally affected by the degradation of the character of the neighborhood.

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the applicable ordinance or local law, which shows the arrangement, layout and
design of the proposed use of a single parcel of land as shown on said plan.” General
City Law § 27-a

Planning Director Suzanne Cahill does not deny that the site plan omits the specified

information relevant to the subject parcel, but avers that because, “the support will be

constructed within the City’s right-of-way and because the support was fully and readily

depicted in the developers’ submissions, the Planning Board saw no need to treat the land

in question as a different parcel or require separate site plan review”. This statement,

however, misses Petitioners’ point. Petitioners do not claim that the Planning Board must

treat the subject parcel, referred to as the “Neighboring Bridge Property”, as a different

parcel requiring separate site plan review. Petitioners claim that the site plan review

herein was deficient for failing to include a “survey showing all lengths”, “boundaries of the

property”, “location and design of any off-street parking areas”, a “copy of any covenants or

deed restrictions that are intended to cover all or any part of the tract” and “existing

contours (of topographical data) with intervals of five feet or less”, as required by KCC

§405-30(F)(1),(3).

The ultimate issue is whether the Municipal Respondents’ actions were arbitrary

and capricious, made in violation of lawful procedure, were affected by an error of law or

were an abuse of discretion. Barnes Rd. Neighborhood Assn., supra; see also, Baer

v.Waterford, 186 AD2d 850, 851 (App. Div. 3 Dept., 1986). Here, the Planning Board did not

require the specified information because the structure is to be built on a City-owned right-

of-way, which lies outside of the KSHD, and is readily depicted in the Developers’

submissions. To the extent that failure to provide the specified information may be a

violation of lawful procedure or constitutes an error of law, the Court finds that these

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defects fall outside the zone of interest attributed to these Petitioners. The Court further

finds that the failure to provide the specified information about the subject parcel is

essentially a minor omission which does not render the challenged determinations

arbitrary and capricious; affected by an error of law; a violation of lawful procedure or

without substantial evidence in the record. Ultimately, the Planning Board’s determination

regarding the adequacy of the site plan review is rationally based and supported by

substantial evidence, despite the technical omissions as to the Neighboring Bridge

Property.

Consequently, the First Cause of Action is dismissed.

2nd Cause of Action/Parking Waiver

Under KCC Section 405-34(H), the waiver of on-site parking requirements is

permitted if, "[T]he proposed use is within 400 feet of a municipally operated off street

parking facility or privately owned and operated parking area”. Dennis Larios, PE was

asked by the Planning Board to demonstrate that the Herzog Plaza parking lot is within 400

feet of the project site, and he did so. Thus, the Municipal Respondents have authority to

grant a parking waiver. The Court defers to the Planning Board’s interpretation of KCC

§405-34(H)(1), to the effect that it does not require that the entire privately-owned

parking area be within 400 feet of the proposed use, as such interpretation is rationally

based.

However, KCC §405-34(H)(3) requires that, “[W]here a private facility is to be

utilized, the applicant shall provide assurance that such facility will be available for the life

of the project”. One of the applicants is the owner of the private parking facility to be

utilized, yet no lease, easement or contract of any kind has been provided in this record.

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The Planning Board’s Resolution Section 12 (10) requires the developer to submit, post-

construction, a fully executed agreement, in a form suitable to the City of Kingston, which

guarantees that a minimum of 181 parking spaces will be accommodated for the life of the

project, “unless otherwise re-negotiated with the City Planning Board”. The Resolution

simultaneously recognizes the mandate of KCC §405-34(H)(3) yet fails to provide strict

adherence to the “assurance” requirement that the privately-owned parking facility will be

“available for the life of the project”. The language of the Resolution states that “…there is

suitable alternative off-street parking available for the project, on the privately owned

lands of Kingston Plaza…”. Notably absent from that portion of the Resolution is the phrase,

“for the life of the project”, a phrase used in Resolution Section 12(9) in reference to the

Kingstonian parking garage. Nonetheless, the Resolution as written provides for post-

construction compliance with KCC §405-34(H)(3), is not patently unreasonable and is

rationally based to address the parking requirements of the Kingston City Code. It is

therefore, presumptively correct and entitled to great deference. Planning Bd. Of the Town

of North Elba v Zoning Bd. of the Town of North Elba, 79 AD2d 766 (App. Div. 3 Dept., 1980):

Ucienchowski v Ehrlich, 221 AD2d 866 (App. Div. 3 Dept., 1995).

As such, the Second Cause of Action is dismissed.

3rd Cause of Action SUP Criteria, Parking, Coherence with Historic District as to
Location/Size/Materials

Petitioners’ Third Cause of Action challenges the determination that the proposed

use is of such location, size and character that, in general, it will be in harmony with the

appropriate and orderly development of the district and will not be detrimental to the

orderly development of adjacent properties. KCC §405-32(A)(2).

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The Municipal Respondents’ determination is entitled to great deference and will

not be disturbed unless it is irrational or unreasonable. Uciechowski v Elrich, supra, at 866.

The Court may not substitute its judgment for that of a zoning board. Id.; see also, Metro

Enviro Transfer, LLC v Vill. Of Croton-on-Hudson, 5 NY3d 236, 240-242 (2005). A review of

the extensive administrative record indicates that the Municipal Respondents made the

determination that the project would not harm the character of the KSHD after receiving

input from relevant entities, such as the NYS OPRHP, the Kingston Historic Landmarks

Preservation Commission, as well as considering detailed reports and conducting public

hearings. Their subjective determination is found to be rationally based, neither arbitrary

nor capricious, and does not constitute an abuse of discretion. The Court will not substitute

its judgment for that of the Municipal Respondents.

Therefore, the Petitioners’ Third Cause of Action is dismissed.

4th Cause of Action Parkland Recreation Fee Waiver/Failure to Consider Parkland

Needs
With respect to the Municipal Respondents’ determination to require no recreation

fee in lieu of parkland, the record indicates that the Municipal Respondents sought input

from the Kingston City Parks and Recreation Commission which recommended that no fee

be required. The Parks and Recreation Commission made this recommendation because

the project includes a public plaza. The plaza is simply the pedestrian space between the

commercial retail shops and restaurants on the ground floor of the building and does not

constitute a park. Nonetheless, the Parks and Recreation Commission’s recommendation

was accepted by the Planning Board. This provides a rational basis for the subjective

determination to waive the parkland fee. The Court may not substitute its judgment for

that of the Planning Board.

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The Petitioners’ Fourth Cause of Action is dismissed.

5th Cause of Action – Incorporation of Prior Proceedings/Determinations by Reference

Petitioners’ Fifth Cause of Action claims that Article III, Section 16 of the NY State

Constitution prevents the Planning Board from incorporating by reference into the

Resolution such things as “all of the legal proceedings filed to date with the Ulster County

Supreme Court” concerning this project and “all Ulster County Supreme Court and Third

Department Appellate Division decisions”. The selected Constitutional provision does not

apply to the Planning Board, as it is intended for the Legislative Branch of government. See

generally, North Shore Child Guidance Assoc. v East Hills, 110 AD2d 826 (App Div 2 Dept.,

1985), appeal dismissed 69 NY2d 707 (1986).

The Fifth Cause of Action is dismissed.

6th Cause of Action - KCC § 405-30(e)

Petitioners’ Sixth Cause of Action alleges a violation of KCC §405-30(E) in providing

a two-year limit to obtain a building permit. Section 405-30(E) provides that a site plan

approval shall be valid for a period of 120 days from the date thereof for the purpose of

obtaining a building permit. It further provides that, upon application, the Planning Board

may extend the time limit by up to two years. Here, after numerous legal challenges made

prior to the current determination, the Planning Board reasonably anticipated more

litigation and made the determination that more than 120 days would be required for the

developers to obtain a building permit. This is a rationally based subjective determination

which the Court finds is amply supported by substantial evidence.

The Sixth Cause of Action is dismissed.

Cross-motion for sanctions and counsel fees

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The Court finds that none of Petitioners’ arguments is frivolous and, therefore,

denies the Municipal Respondents’ cross-motion for sanctions and counsel fees.

Accordingly, the Petition is dismissed. The cross-motion for sanctions and counsel

fees is denied.

This constitutes the Decision and Order of this Court. The Court is E-filing this

Decision and Order, but that does not relieve Respondents from compliance with the

provisions of CPLR §2220 with regard to notice of entry thereof.

Dated: Hudson, New York

October 4, 2023
_________________________________
RICHARD MOTT, J.S.C.

Papers Considered:

1. Notice of Petition, Verified Petition and Memorandum of Law of Benjamin F. Neidl, Esq.,
dated November 15, 2022, with Exhibits A-J;
2. Answer, Supporting Affidavit and Memorandum of Law of Michael A. Moriello, Esq.,
dated May 9, 2023 with Exhibits A-H;
3. Answer and Certified Record Volumes 1-3, Memorandum of Law and Affidavit of
Attorney’s Fees of Barbara Graves-Poller, Esq., and Affidavit of Attorney’s Fees of
Jonathan Clark, Esq., dated May 12, 2023 and Supporting Affidavit of Suzanne Cahill,
dated May 11, 2023 with Exhibits A-B;
4. Reply Affirmation with Exhibit A and Memorandum of Law of Benjamin F. Neidl, Esq.,
dated June 2, 2023.

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