Kingstonian opponents’ appeal denied again
Top state court won't hear another dismissal challenge
KINGSTON, N.Y. >> A state appellate court has again upheld a lower court’s decision to dismiss a lawsuit regarding the proposed mixed-use development known as The Kingstonian, this time over determinations made by the city’s Zoning Board of Appeals.
Separately, the New York Court of Appeals, which is the highest court in the state, denied a request to hear an appeal regarding the dismissal of a lawsuit over whether part of the cityowned property to be used for The Kingstonian project is considered parkland.
Justices with the Appellate Division of the state Supreme Court, Third Judicial Department on Thursday handed down a decision stating the petitioners lacked standing to pursue a claim against the city and its Zoning Board of Appeals over matters related to The Kingstonian project. That decision affirmed a ruling made by state Supreme Court Justice Richard Mott on May 17, 2021, which had dismissed the petitioners’ lawsuit.
“We reject the petitioners’ primary claim that they have presumptive standing to challenge the subject interpretation based solely upon the location of their properties within the MUOD (mixed-use overlay district),” the decision states. The decision goes on to state that the petitioners also failed to prove that their stated interests fall within the scope of those that are to be protected by the city’s zoning code.
The original lawsuit was filed on Sept. 4, 2020, on behalf of limited liability corporations that own properties at 61 Crown St., and 311, 317, and 323 Wall St. It named the city Zoning Board of Appeals, zoning enforcement officer, and the developers of The Kingstonian among the respondents.
City-based real estate investor Neil Bender leads the William Gottlieb Real Estate Group and controls the LLCs named as petitioners in the lawsuit. Bender’s group has been part of at least 14 lawsuits against The Kingstonian project, several of which have been dismissed by Mott.
In the original lawsuit, the petitioners had sought to annul a decision by the Zoning Board of Appeals that determined the
city’s zoning code allows new residential structures to be built in the mixeduse overlay district and that such new structures are not required to set aside any units for affordable housing.
The affordable housing requirement was later amended by the city Common Council.
The lawsuit claimed the Zoning Board of Appeal’s decision was improper in that it was arbitrary, capricious, irrational, unreasonable, and not supported by substantial evidence.
The Kingstonian, which received site plan approval from the city’s Planning Board in October, is proposed to straddle Fair Street Extension between North Front Street and Schwenk Drive, utilizing the municipal parking lot property there and the existing Herzog-owned property on the other side of Fair Street Extension. The project would include 143 residential units, a hotel, commercial space, and a parking garage, along with a public plaza built over the top half of Fair Street Extension, and a pedestrian bridge crossing to the Kingston Plaza.
The parking garage is to consist of 427 spaces, of which 277 would be made available for public use.
Fair Street Extension would be closed to through traffic to make way for the plaza.
On the separate parklands issue, the petitioners, which included Bender’s limited liability corporations, initially argued that a portion of the property to be used for The Kingstonian project along North Front Street was a park and could not be designated for other uses without state legislative approval. Mott dismissed that claim in a ruling issued Feb. 17, 2021.
The Appellate Division of the state Supreme Court, Third Judicial Department upheld Mott’s decision in its own ruling handed down in June.
The plaintiffs then attempted to appeal the Appellate Division’s decision, but the New York Court of Appeals declined to hear the case. That determination was dated Nov. 22.