Judge dismisses another lawsuit by opponents
It was the second time this year that state Supreme Court Justice Richard Mott rejected a challenge to the project.
KINGSTON, N.Y. » A judge has dismissed a lawsuit that sought to annul a decision by the state Office of Parks, Recreation and Historic Preservation that the proposed mixed-use development known as The Kingstonian would have no adverse effects.
It was the second time this year that state Supreme Court Justice Richard Mott rejected a legal challenge to The Kingstonian.
In his latest ruling, dated April 5, Mott dismissed a suit against the state historic preservation office, the Empire State Development Corp., the Kingston Planning Board, the city of Kingston and the developers of The Kingstonian, stating, in part, that the petitioners “failed to meet their burden of establishing standing to challenge” the state office’s consultation with and advice to Empire State Development on the historic impacts of the project.
And even if the petitioners had proven their right to challenge the decision, the judge wrote, the court would have to defer to the state office’s expertise.
The lawsuit was filed by attorneys Victoria Polidoro of Rhinebeck and J. Scott Greer of Poughkeepsie on behalf of limited liability corporations that own Uptown Kingston properties at 61 Crown St.; 311, 314, 317, 323 and 328 Wall St.; and 63 North Front St. New York City-based real estate investor Neil Bender controls most of those corporations, while the property at 317 Wall St. is leased to a third party, CREDA LLC.
In his ruling, Mott said the petitioners alleged the Empire State Development Corp. and the state Office of Parks, Recreation and Historic Preservation failed to comply with state law by not considering all feasible and prudent mitigation alternatives to adverse historic impacts from the proposed project. They also argued the state office issued a findings letter in violation of statutory requirements and that those actions constituted an arbitrary and capricious reversal of its prior observations of potential adverse impacts, the judge said.
Mott said the petitioners did not allege any “injury-in-fact different from the general public” in seeking to challenge the state office’s findings. He said
their allegations of harm to the enjoyment of their property and personal interests in maintaining the city’s Stockade Historic District’s character “is simply too amorphous to establish the requisite injury-in-fact.”
Mott also said the petitioners did not state what portions of the project would be visible from their properties and provided no detail about specific effects on any individual owners.
“Mere proximity does not suffice to establish injury-in-fact, and petitioners’ unsubstantiated claim that property values will decline as a consequence of the project is not a cognizable concern,” Mott wrote.
As for the state office’s review, Mott wrote that it considered the visual effects of The Kingstonian within the Stockade Historic District and found previously identified adverse impacts to have been minimized by changes later made to the project proposal.
Earlier this year, Mott dismissed a related lawsuit filed by the same petitioners against the Kingston Common Council, Mayor Steve Noble and the developers of The Kingstonian that sought to claim a picnic area on North Front Street as parkland that could not be alienated without legislative approval.
That suit also called for the memorandum of understanding between the city and the developers, Kingstonian Development LLC and Herzog Supply Co., to be declared “null and void,” and it argued the council’s vote to extend the Mixed Use Overlay District to include the parcel at 51 Schwenk Drive constituted so-called “spot zoning.”
Polidoro previously said the petitioners would appeal that dismissal, handed down in February. She could not be reached for comment Wednesday.
Still pending is a lawsuit seeking to overturn a December 2019 decision by the Kingston Planning Board that The Kingstonian would not harm the environment.
The Kingstonian, estimated to cost $58 million to build, would straddle Fair Street Extension between North Front Street and Schwenk Drive and would comprise 143 residential units, including 14 that are considered “affordable”; 8,900 square feet of commercial space; a 32room boutique hotel; and a 420-space parking garage, with 277 spaces available to the public, according to the developers. The proposed project is still under review by the city.