SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER In the Matter of RUPCO, INt Petitioner-Plaintiff, DECISION/ORDER For a Judgment Pursuant to Article 78 of the Civil Practice Index No. 17-2185 Law and Rules and a Declaratory Judgment Pursuant to RJjd. No, 55-17-1275 Section 3001 of the Civil Practice Law and Rules Richard Mott, J.C. -against- CITY OF KINGSTON and THE COMMON COUNCIL OF ‘THE CITY OF KINGSTON, Respondents-Defendants, Motion Return Date: October 27, 2017 APPEARANCES: Petitioner-Plaintiff: John J. Henry, Esq. Nicholas J. Faso, Esq. Whiteman Osterman & Hanna, LLP One Commerce Plaza Albany, NY 12260 Michael Moriello, Esq. Riseley and Moriello, PLLC 11 Green Street Kingston, NY 12401 Respondents-Defendants: Kevin R. Bryant, Esq. Corporation Counsel City of Kingston 420 Broadway Kingston, NY 12401 Mott, J. Petitioner-Plaintiff ("RUPCO’) in this Article 78 proceeding and action for a declaratory judgment seeks, in the former, to annul Respondents’ /Defendants’ (‘Respondents”) determination not to enact the zoning code amendment as arbitrary andcapricious and, in the latter, to declare the zoning code amendment perforce has been enacted by Respondent-Defendant City Council's (“Council”) simple majority vote. Respondents oppose and cross-move to direct RUPCO to add necessary parties. RUPCO opposes. Background RUPCO is a not-for-profit affordable housing agency seeking to re-zone a property (’Property’), for which it is the contract vendee. The proposed amendment would re-zone the Property to include it in the contiguous R-6 zoning district, thereby permitting development of multi-family residential housing, which is barred with its present RR zoning district designation. Pursuant to City of Kingston Administrative Code ("City Code") § 405-72 and General Administrative Law (“GCL”) § 83, three-fourths ("super-majority”) vote of the Council is required to pass a zoning amendment where owners of 20% or more of either the area of land immediately adjacent to the Property, extending 100 feet therefrom and/or the area of land directly opposite extending 100 feet from the Property's street frontage, protest the proposal. City Code § 405-72 requires that protest petitions be duly signed and acknowledged. Following a negative State Environmental Quality Review Assessment ("SEQRA) on RUPCO’s 2016 special permit and site pian review applications, a vote was scheduled on the proposed amendment. A week prior thereto, Respondents received two protest petitions. Each petition states that the undersigned represent the requisite 20% of landowners.‘The first petition’s! notary acknowledgment states that on July 1, 2017, Nancy Sudlow came before him and stated that she had witnessed “all other signatories.” Sudlow’s signature is on the attached petition which also includes another, dated July 2, 2017. The second petition's? notary acknowledgment states that he witnessed the signatures on the “attached list", and that said individuals personally appeared before him on July 2-4, 2017, and verified their identity. The signatures on the attached list are dated between July 2, 2017 and July 4, 2017. However, the date of notarization is not stated. ‘After receiving the petitions and before the Council vote, Kingston's legal department advised the Council that “it appears that the petitions are facially valid," but that the final determination as to the super-majority requirement would likely be reached upon judicial review following the vote, ‘The Council's Law and Rules Committee then recommended that a super-majority was required based upon the legal department's advice. The Council proceeded to vote five to four in favor of the amendment. The minutes of the Council meeting reflect that the measure failed because it lacked the seven-vote super-majority required for passage. Parties’ Contentions RUPCO claims that the protest petitions are invalid because they are not duly signed and acknowledged and have not been shown to meet the threshold, rendering the simple majority vote on the proposed zoning amendment sufficient to enactiit. It claims that one of the signatures on the second petition refers to a property owned by a corporation, but 1 RUPCO's Exhibit F, with six signatures. 2 RUPCO’s Exhibit G, with thirteen signatures. 3 Because the proposed amendment came with a negative recommendation from the Law and Rules Committee, a yes vote would deny the zoning change and a no vote would grant it. 3does not include a signature evidencing representative authority and cites that Respondents’ answer admits that some of the signatories do not own any land either adjacent to or directly opposite the property to be rezoned. Further, they claim that because Respondents failed to substantiate their determination that the petitions meet the 20% threshold, the determination thata super-majority was required for the amendments passage was arbitrary and capricious. Finally, RUPCO contends that the petitions’ signatories are not necessary parties because their individual interests as landowners are unaffected by the proposed ameridment. Respondents maintain that they were required to act within 90 days of the completed SEQRA and that the petitions were received a mere five days before the vote, preventing verification of compliance with the threshold requirement. In support thereof, Kingston cites the affidavits of the City Assessor, Daniel Baker, and a City Engineering Technician, each stating that they reviewed records but were unable to perform more than a preliminary assessment that the threshold requirement had been satisfied, due to time constraints. In addition, Respondents aver that the invocation of the super-majority requirement was not arbitrary and capricious since it was based upon a determination that the petitions were facially valid, thereby protecting the due process rights of all concerned for judicial review. Further, they insist that the signatories are necessary parties and must be joined in this proceeding/action which raises the issue of whether the threshold requirement has been met. Discussion Judicial Review ‘The amendment of a zoning ordinance is a purely legislative function Wolff'v Town/Vil. of Harrison, 30 AD3d 432, 433 (2d Dept 2006] and GCL'§ 83 limitations on the 4general legislative powers of the Council must be strictly construed. Viscusi v City of Schenectady, 198 Misc 732, 733 [Sup Ct 1950]. Thus, absent a protest which complies with statutory requirements for invoking a super-majority, a simple majority vote of the Council is adequate to amend local zoning laws. Id ‘Where a town board’s zoning determination constitutes an administrative act, it may be challenged pursuant to CPLR Article 78, but where the determination is legislative a declaratory judgment action is appropriate to test the validity or constitutionality of the legislative action. Todd Mart, Inc. v Town Bd. of Town of Webster, 49 AD2d 12 [4th Dept 1975]. A court is limited to determining whether an administrative decision is *... contrary, to local standards, arbitrary, capricious, discriminatory, an abuse of discretion, or supported by substantial evidence.” Id. Judicial review of a legislative decision limits a court to ascertaining whether the legislative body acted with legal authority under its enabling statutes. O'Neill Group-Dutton, LLC v Town Bd. of Town of Poughkeepsie, 56 Misc 3d 1208(A) [Sup Ct 2017], citing Todd Mart, Inc. v Town Bd. of Town of Webster, 49 AD2d 12. ‘The arbitrary and capricious standard ‘relates to whether a particular action should have been taken or is justified...and whether the administrative action is without foundation in fact.” Pell v Bd. of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester Gounty, 34 NY2d 222, 231 [1974] (internal citations omitted); Rochdale Mall Wines & Liquors, Inc. v State Lig. Auth., 29 AD2d 647, 648 [2d Dept 1968], affd, 27 NY2d 995 [1970] (the reviewing administrative authority must make findings sufficient to inform a court, upon judicial review, of the basis of its decision). Here, Respondent City of Kingston (“Kingston”) acted arbitrarily and capriciously when it determined that the petitions were facially valid and sufficient to meet thethreshold, since the first petition, containing a hearsay acknowledgment and a signature after the date of the purported acknowledgement, is patently and facially invalid, Galetta v Galetta, 21 NY3d 186, 192 [2013]; RPL §§ 292, 303, 306 and lacking a proper acknowledgment in accordance with the City Code. Castle Properties Co. v Ackerson, 163 AD2d 785, 787 [3d Dept 1990] (lack of evidentiary basis for planning board determination rendered its decision arbitrary and capricious). Further, Respondents concede notall the signatories met the statutory requirement as adjacent or opposite landowners. Thus, ta the extent that the Council determined that the super-majority requirement was triggered based upon invalid petitions, it acted without legal authority when determining that its vote was insufficient to enact the proposed amendment. Necessary Parties Parties are necessary where they might be inequitably affected by a judgment in the action or their joinder is necessary to afford complete relief to the existing parties. CPLR § 1001. Notably, courts: “have long entertained challenges to municipalities’ legislative actions in regard to zoning ordinances without requiring the joinder of every property owner whose rights are affected by the ordinance at issue... even when [it ...] is likely to dramatically affect the property rights held by real property owners.” Hudson Riv. ‘Sloop Clearwater, Inc. v Town Bd. of Town of Coeymans, 144 AD3d 1274, 1275-76 [3d Dept 2016]. Indeed, to be considered as a necessary a party on a legal challenge to a zoning ordinance, a property owner must first have obtained for themself, an approval under a zoning ordinance that would be adversely impacted by the proposed change in the zoning law. Id. Here, the petition signatories had no such acquired rights. There is no indication their property was being rezoned, as opposed to the circumstance in Hudson Riv. Sloop Clearwater, Inc. v Town Bd. of Town of Coeymans, where those found to be necessary parties, 6toa zoning determination owned land within the area to be rezoned. Further, judicial review is necessarily limitad to whether Respondents’ actions comply with CPLR Article 78, thereby limiting the necessary parties to those officials whose acts are being challenged. 208 &, 30th St. Corp. ¥ Town of N. Salem, 88 AD2a 281, 285 [2d Dept 1982] (the officer whose conductis to’be controlled is the only necessary party respondent in an Article 78 proceeding). Consequently, the individual signatories to the petition are not necessary parties, Accordingly, the petition/complaint is granted to the extent of annulling Respondents‘ deternnnation that the supermajority threshold was met and is otherwise denied, Respondents’ cross-motion is denied and the matter is remitted to Respondent/Defendant Council, for proceedings consistent with the determination herein, Any remaining contentions have either been considered and determined tolack meritor are renderedacademic. ‘This constitutes the Decision and Order of this Court. The Courtis forwarding the original Decision and Order directly to the Plaintiff, who is required to comply with the provisions of CPLR §2220 with regard to filing and entry thereof, A photocopy of the Decision and Order is being forwarded to all other parties who appeared in the action, All original motion papers are being delivered by the Court to the Supreme Court Clerk for transmission to the County Clerk. Dated: Hudson, New York December 19, 2017 ae RICHARD MO’ Se =