Posted by: Patricia Salkin | January 4, 2019

NY Appellate Court Upholds Determination Finding Cultural Center was a Permitted Use

This post was authored by Matthew Loeser, Esq.

Respondent Irish Cultural Center Hudson Valley, Inc. owned real property in the City of Kingston, Ulster County, which bordered Abeel Street as well as a municipal walkway running downhill to a street known as the West Strand. ICC desired to build a three-story cultural center on the property that would have its primary entrance on the walkway and include a theater, exhibition and gallery space, classrooms, a library and a restaurant. Pursuant to the City’s zoning ordinance, the cultural center was required to have “direct frontage … on the West Strand” for the bulk of those uses to be permissible. Petitioners, residential landowners on Abeel Street, asked respondent Joseph Safford, the Zoning Enforcement Officer for the City of Kingston (“ZEO”), to determine whether the ICC property had the requisite direct frontage on the West Strand. The ZEO found that it did, and respondent Zoning Board of Appeals of the City of Kingston upheld this decision. Petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action to annul the ZBA’s determination. The Supreme Court dismissed the complaint, and petitioners appealed.

On appeal, petitioners contended that the ZBA failed to give them the requisite opportunity to respond to a letter, submitted after the public hearing on petitioners’ administrative appeal and cited in the ensuing determination, from a land surveyor retained by the ZBA to review the relevant public records and describe the relation of the ICC property to the municipal walkway and the West Strand. The court found that petitioners failed to show anything was inaccurate in the letter contained information that reflected the findings of the ZEO. Accordingly, the court found that while it was not wise for the ZBA to consider the letter without affording petitioners an opportunity to respond, that error should not serve as a basis for annulling the determination.

Next, petitioners alleged that the ZBA privately met with its counsel following the public hearing to review the legal issues involved, retained the aforementioned surveyor and direct counsel to draft the detailed written determination that it publicly adopted. The petitioners failed to allege how these meetings were part of an effort to thwart public scrutiny of the ZBA’s process in deliberate violation of the Open Meetings Law.

As to the merits of petitioners claim, the record reflected that the municipal walkway bordering the ICC property merged with the West Strand, and both the ZEO and the surveyor retained by the ZBA stated that this merger occurred along the ICC’s property boundary. On this basis, the ZBA determined that the ICC property had direct frontage along the West Strand and the property could therefore be used for the purposes enumerated in Code of the City of Kingston. Notwithstanding petitioners’ interpretations of the zoning ordinance, the court found the ZBA’s determination was reasonable and upheld it.

Harvey v Zoning Board of Appeals of City of Kingston, 2018 WL 5659708 (NYAD 3 Dept. 11/1/2018)

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