roa
at
RISELEY & MORIELLO
ATTORNEYS AT LAW
111 Green Street
Richard F. Riseley Post Office Box 4465 Tel: (845) 338-6603,
Michael A. Moriello Kingston, New York 12402 Fax: (845) 340-1614
ail: mamrfr@aoLeom
January 26, 2018
City of Kingston Planning Board
Ms. Suzanne Cahill, Planner
420 Broadway
Kingston, New York 12401
RE: Landmark Place: Site Development Plan Review Proceedings
Before the City of Kingston Planning Board
VIA E-MAIL AND REGULAR MAIL
Dear Sue and Board Members:
In accordance with the Decision of Judge Mott [copy annexed),
this is to advise that my client will be appearing at the February 20,
2018 City of Kingston Planning Board Meeting to forward the original
site development plan for the Landmark Place Multi-Family Adaptive
Reuse Affordable Housing Project, same in connection with the above
referenced matter.
As the rezoning of the subject premises has been effectuated by
the Court and in light of the associated acknowledgement of the City
of Kingston Common Council at its January 9, 2018 meeting, this
correspondence is to further memorialize that the July 10, 2017
amendment to Zoning Petition, which was previously submitted to the
City of Kingston Common Council, is of no effect as a matter of law.
Accordingly, I am providing the Common Council with a copy of
this correspondence for its records,
I look forward to meeting with the Planning
2018 and should you have any questions, do pe:
avon February 20,
ete contact me.
MAM: def
Enclosure
cc: Mr. Kevin 0’ Connor
Mr. Guy Kempe
Dennis Larios, PE
Scott Dutton, RA
Daniel Gartenstein, Esq.
Ms. Carly Winnie, City Clerk
[all via e-mail}‘SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
In the Matter of RUPCO, INC,,
Petitioner-Plaintiff, DECISION/ORDER
Fora Judgment Pursuant to Article 78 of the Civil Practice Index No. 17-2185
Law and Rules and a Declaratory Judgment Pursuant to RJLNo, 55-17-1275
Section 3001 of the Civil Practice Law and Rules Richard Mott, S.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,
Bespondents-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’
CRespondents”) determination not to enact the zoning code amendment as arbitrary andcapricious 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 secking to re-zone a property
(C Property’), for which itis 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, a 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 plan 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
‘hat 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
ofthe 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 enact it. It claims that one
of the signatures on the second petition refers to a property owned by a corporation, but
} RUPCO's Exhibit F, with six signatures,
? RUPCO’s Exhibit G, with thirteen signatures.
2 Because the proposed amendment came with a nogative recommendation from the Law and Rules
Committee, ayes vote would deny the zoning change and a no vote would grant
3does 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 that a super-majority was required for the amendment’s
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 Wolffv
Town/Vil. of Harrison, 30 AD3d 432, 433 [2d Dept 2006] and GCL § 83 limitations on the
4general legislative powers ofthe Council must be strictly construed, Viscus!v ity 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 majerity vote ofthe Council
{s adequate to amend local zoning laws. Id
Where a town board's zoning determination constitutes an administrative act, t
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 consttutionality ofthe
legislative action. Todd Mart, Inc. v Town Bd. of Town of Webster, 49 AD2d 12 [4th Dept
1975}, A courts 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 deciston limits a
court to ascertaining whether the legislative body acted with legal authority under its
enabling statutes. O'Neill Group-Dutton, LLC v Town Ba. of Town of Poughkeepsie, 56 Mise 34
1208(A) [Sup Ct 2017), citing Todd Mare, Inc. v Town Bd. of Town of Webster, 49 AD2d 12.
‘The arbitrary and capricious standard “relates to whether a particular ation should
have beer 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 County, 34 NY2d 222, 231 [1974] (internal citations omitted);
Rochdale Mall Wines & Liquors, in. 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, ofthe basi ofits decision),
Here, Respondent City ‘of Kingston (“Kingston”) acted arbitrarily and capriciously
when it determined that the petitions were facially valid and sufficient to meet thethreshold, 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 not all the
signatories met the statutory requirement as adjacent or opposite landowners. Thus, to 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 thelr 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
6toa zoning determination owned land within the area to be rezoned. Further, judicial
review is necessarily limited 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. v Town of N, Salem, 88 AD2d 281, 285 [2d Dept 1982) (the officer
whose conduct is 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’ determination that the super-majority 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 to lack merit or
are rendered academic,
‘This constitutes the Decision and Order ofthis Court. The Court is forwarding the
original Decision and Order directly to the Plaintif, 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
4
RICHARD MPapers Considered:
1. Notice of Petition of john J. Henry, Esq, and Michael Moriello, Esq,, and Verified Petition
and Complaint of Joseph Eriole, dated August 18, 2017, with Exhibits A-I;
2. Notice of Cross-Motion and Affirmation of Kevin R. Bryant, Esq, dated October 12, 2017
with Exhibit A, Verified Answer of Kevin R. Bryant, Esq., undated, and Record pages 1-
258;
3. Reply Memorandum of Law of John J. Henry, Esq,, and Michael Moriello, Bsq,, dated
October 26, 2017.arenes iy ofkrgston, NY
{This chapter or any pare thereof, including the Zoning Map, may be amended, supplemented or repealed,
from time to time, by the Common Counci, pursuant to statute. Such amendment may be initiated in one
Of the following ways:
‘A. Bythe Common Council on its own motion,
B. By adoption by the Planning Board of a resolution proposing an amendment to the Common Council
C._Bythe filing of a petition in accord with the requirements set forth in § 405-71 below.
§ 405-71. Procedures for petitions.
‘A. Form of petition. All petitions for amendment shall be presented to the City Clerk for referral to the
‘Common Council at the next regular meeting of said Common Council. A petition for amendment shall
Contain information describing the nature of the proposed amendment, a description of the land or
district affected and any other information or material pertinent to the determination of the matter.
‘The City Clerk may prescribe forms for the filing of said petitions. Each petition for amendment shall
be accompanied by afee in accordance with the Fee Schedule established by the Common Council,
payable to the City Comptroller.
[Amended 12-16-1999 by LL. No. 2-2000; approved 1-3-2000]
8. _ Resubmittal of petition. fan amendment is disapproved by the Common Council, no petition for
essentially the same amendment shall be considered within a period of one year from and after the
date of such disapproval
thdrawal of petition. Any petition for amendment may be withdrawn at anytime by the fling ofa
= Veifled petition of withdrawal signed by not less than a majority ofthe number of persons who signed
7 the original petition. Any petition for amendment withdrawn by the petitioner subsequent to notice of
Public hearing shall preclude consideration of substantially the same amendment for a period of one
year from and after the date said petition for withdrawals filed with the City Clerk,
§ 405-72. Required actions on petitions.
‘A. Petition for resolution. Whenever the owners of 50% or more of the frontage in any district or part
thereof shall present a petition duly signed and acknowledged to the Common Council requesting an
amendment, supplement, change or repeal of the regulations prescribed for such district or part
thereof, It shall be the duty of the Common Council to vote upon said petition within 90 days after the
filing of the same by the petitioners with the City Clerk.
8. Protest petition. if protest against a proposed amendment, supplement or repeal is presented to the
Common Council duly signed and acknowledged by the owners of 20% or more of the area of land
included in such proposed change, or by the owners of 20% or more ofthe area of land immediately
adjacent, extending 100 feet from the street frontage of such opposite land, such amendment shall not
become effective except by the favorable vote of at least 3/4 of the Common Council
Planning Board proposal. t shall be the duty of the Common Council to vote upon such amendment,
supplement, change or repeal, as proposed by the Planning Board, within 90 days from the date the
proposal is received by the Common Council
§ 405-73. Referrals.
A. Referral to the Planning Board.
ip ecode360.com/pirecsmpUd= ZOGRO7ABCtirer-tu ‘e868Cahill, Suzanne
Michael Moriello
Friday, January 26, 2018 9:48 AM
Cahill, Suzanne
koconnor@rupco.org; gkempe@rupco.org; dmlarios@blengineers.com;
‘scott@duttonarchitecture.com; Gartenstein, Daniel; Winnie, Carly
Subject: Landmark Place: Site Develoment Plan Review Proceedings Before the City of Kingston
Planning Board
Attachments: Cahill Letter With Attachment 2018.01.26,pdf
Please see attached
Michael A. Moriello, Esq.
Riseley & Moriello, PLLC
Attomeys at Law
111 Green Street
PO Box 4485
Kingston, New York 12402
Phone (845)338-8603 / Fax (845)340-1614