61 Crown St., LLC v. City of Kingston Common Council

• Decision Date: 16 June 2022
• Docket Number: 533032
• Citation: 206 A.D.3d 1316,171 N.Y.S.3d 203
• Parties: 61 CROWN STREET, LLC, et al., Appellants, v. CITY OF KINGSTON COMMON COUNCIL et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 1316

171 N.Y.S.3d 203

61 CROWN STREET, LLC, et al., Appellants,

v.CITY OF KINGSTON COMMON COUNCIL et al., Respondents, et al., Defendants.

533032

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 25, 2022

Decided and Entered: June 16, 2022

Rodenhausen Chale & Polidoro LLP, Rhinebeck (Janis M. Gomez Anderson of counsel) and Lewis & Greer, PC, Poughkeepsie (J. Scott Greer of counsel), for appellants.

Barbara Graves–Poller, Corporation Counsel, Kingston, for City of Kingston Common Council and another, respondents.

Riseley and Moriello, PLLC, Kingston (Michael A. Moriello of counsel), for JM Development Group, LLC and others, respondents.

Wayne Thompson, Poughkeepsie, for appellants, amici curiae.

Before: Garry, P.J., Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from an order of the Supreme Court (Mott, J.), entered February 19, 2021 in Ulster County, which granted certain defendants’ motion for summary judgment dismissing the complaint against them.

This appeal involves plaintiffs’ challenge to the Kingstonian Project, which seeks to redevelop certain parcels of land in the City of Kingston, Ulster County as a parking garage, apartments, a boutique hotel, retail space and a public pedestrian bridge and plaza. The Kingstonian Project is located in the Kingston Historic Stockade District (hereinafter KHSD), which is zoned as a C–2 commercial district within the "Mixed Use Overlay District" (hereinafter MUOD) permitting residential use under specific conditions. The properties set for redevelopment are an outdoor parking lot and defunct municipal parking garage located on a City-owned parcel at 21 North Front Street (hereinafter the City parcel) as well as a smaller parcel bordering the KSHD located at 51 Schwenk Drive that is owned by defendant Herzog Supply Co., Inc. (hereinafter the Herzog parcel).

The Kingstonian Project generally began in 2016 when defendant City of Kingston Common Council requested proposals to redevelop, among other things, the City parcel. In June 2019, defendant Kingstonian Development, LLC, Herzog's contract vendee, submitted a zoning petition to the Common Council seeking to amend the City zoning map so as to extend the MUOD to include the Herzog parcel. Following a negative declaration pursuant to the State Environmental Quality Review Act (see ECL article 8 [hereinafter SEQRA]), the Common Council approved the zoning amendment conditioned on a 10% affordable housing requirement placed upon the Herzog parcel.

In August 2020, plaintiffs, comprised of property owners within the KSHD and near the Kingstonian Project site, commenced the instant action for declaratory and injunctive relief pursuant to CPLR 3001 and General Municipal Law § 51, seeking "to prevent any illegal official act on the part of [municipal officers]." Plaintiffs’ first cause of action alleged that the City parcel contains a picnic area and parkland (hereinafter the disputed area) that is subject to the public trust doctrine, and the second cause of action sought to enjoin the City from alienating the disputed area without an act of the Legislature. The third and fourth causes of action sought to declare a memorandum of understanding regarding the redevelopment of the City parcel, and its assignment, null and void. Finally, the fifth cause of action sought a declaration that the rezoning of the Herzog parcel was null and void because the Common Council engaged in illegal spot zoning when it amended the City zoning map to include the Herzog parcel within the MUOD. After issue was joined, Herzog, defendant JM Development Group, LLC, Kingstonian Development and defendant Patrick Page Holdings, L.P., as well as defendant Steven T. Noble, in his capacity as City Mayor, and the Common Council (hereinafter collectively referred to as defendants) moved for summary judgment dismissing the complaint against them. Plaintiffs opposed the motion. Supreme Court ultimately granted the motion for summary judgment and dismissed the complaint in its entirety, finding, as relevant here, that the public trust doctrine was inapplicable to the City parcel and that the Common Council's determination to extend the MOU to the Herzog parcel did not constitute illegal spot zoning.¹ Plaintiffs appeal.²

We turn first to plaintiffs’ contention that Supreme Court erred in granting defendants’ motion for summary judgment as to the first and second causes of action because triable issues of fact exist as to whether the disputed area has become a park by implication through longtime public use and thus the public trust doctrine is applicable. As relevant here, it is well settled that the public trust doctrine prohibits a municipality from alienating dedicated parkland for nonpark purposes absent the approval of the Legislature (see Matter of Avella v. City of New York, 29 N.Y.3d 425, 431, 58 N.Y.S.3d 236, 80 N.E.3d 982 [2017] ; Union Sq. Park Community Coalition, Inc. v. New York City Dept. of Parks & Recreation, 22 N.Y.3d 648, 654, 985 N.Y.S.2d 422, 8 N.E.3d 797 [2014] ). "[A] parcel may become a park either through express provision ... or by implied acts" ( Matter of Lazore v. Board of Trustees of Vil. of Massena, 191 A.D.2d 764, 765, 594 N.Y.S.2d 400 [1993] ; see Matter of Angiolillo v. Town of Greenburgh, 290 A.D.2d 1, 10–11, 735 N.Y.S.2d 66 [2001], lv denied 98 N.Y.2d 602, 744 N.Y.S.2d 762, 771 N.E.2d 835 [2002] ). "A party seeking to establish ... an implied [parkland] dedication and thereby successfully challenge the alienation of the land must show that (1) the acts and declarations of the land owner indicating the intent to dedicate [its] land to the public use are unmistakable in their purpose and decisive in their character to have the effect of a dedication and (2) that the public has accepted the land as dedicated to a public use" ( Matter of Glick v. Harvey, 25 N.Y.3d 1175, 1180, 15 N.Y.S.3d 733, 36 N.E.3d 640 [2015] [internal quotation marks, brackets and citations omitted]; see Matter of Clover/Allen's Cr. Neighborhood Assn. LLC v. M&F, LLC, 173 A.D.3d 1828, 1830, 105 N.Y.S.3d 659 [2019] ).

In support of their motion, defendants submitted, among other things, the affidavits of Christopher J. Zell, a licensed surveyor, with attached exhibits, and Ron Woods, the 50–year former chairman of the City's Recreation Commission. These submissions demonstrated that the disputed area has never been mapped or expressly dedicated as a public park (see Powell v. City of New York, 85 A.D.3d 429, 431, 924 N.Y.S.2d 370 [2011], lv denied 17 N.Y.3d 715, 2011 WL 5041659 [2011] ), and that the City's Parks & Recreation Department did not manage the disputed area nor did it treat it as parkland (see generally Matter of Cannon Point Preserv. Corp. v. City of New York, 183 A.D.3d 416, 417, 123 N.Y.S.3d 587 [2020] ). Defendants also established that public events held in the disputed area were merely temporary and sporadic uses of the City parcel, which do not sufficiently evince a clear intent by the City to treat the disputed area as a parkland (see Matter of Coney Is. Boardwalk Community Gardens v. City of New York, 172 A.D.3d 1366, 1368–1369, 102 N.Y.S.3d 282 [2019] ). Given the foregoing, defendants established prima facie that the disputed area is not a park by implication (see generally Matter of Glick v. Harvey, 25 N.Y.3d at 1180, 15 N.Y.S.3d 733, 36 N.E.3d 640 ). As such, the burden shifted to plaintiffs to raise a genuine issue of material fact warranting a trial (see Johnson v. Freedman, 195 A.D.3d 1206, 1206–1207, 150 N.Y.S.3d 138 [2021] ).

In opposition, plaintiffs presented, as pertinent here, the environmental assessment form submitted by Kingstonian Development as part of the SEQRA process, Ulster County land records for the disputed area, exhibits revealing that – at least since 2013 – the Kingston Uptown Business Association has organized and sponsored the "Snowflake Festival" during December in the disputed area and the affidavit of William Vickery. Vickery is a project manager with William Gottlieb Management who, in August 2020, observed the disputed area. These submissions, although demonstrating that the disputed area has some park-like attributes, falls well short of unequivocally establishing an implied dedication. Notably, Supreme Court found this area to be a mere "sidewalk setback, irrefutably part of a[g]arage lot inherited from a defunct City development agency as surplused land." Although the SEQRA environmental assessment form refers to a part of the City parcel as a "small pocket park,"³ this form was created by Kingstonian Development and therefore, contrary to plaintiffs’ contention, does not constitute an unmistakable expression of the City's intent to treat the area as such. Neither does the use of the area by a private business for once-a-year holiday events, regardless of whether municipal resources were applied, as these events were temporary and sporadic in nature (see Matter of Coney Is. Boardwalk Community Gardens v. City of New York, 172 A.D.3d at 1368–1369, 102 N.Y.S.3d 282 ). Further, the fact that there is a concrete patio, a few movable picnic tables, a planter and some painted hop-scotch boards does not nearly establish the municipality's unmistakable intent to permanently dedicate public land for use as a park (see Matter of Glick v. Harvey, 25 N.Y.3d at 1180–1181, 15 N.Y.S.3d 733, 36 N.E.3d 640 ; compare Village of Croton–On–Hudson v. County of Westchester, 38 A.D.2d 979, 980, 331 N.Y.S.2d 883 [1972], affd 30 N.Y.2d 959, 335 N.Y.S.2d 825, 287 N.E.2d 617 [1972] ). Moreover, the public's use of the area to sit and eat lunch could occur in many parts of the City as it is an activity that can happen in virtually any public space. Finally, even if such use could be relevant to the question of the public's acceptance of the disputed area as a park, such activities have little or no bearing on whether the City permanently...