61 Crown St., LLC v. N.Y. State Office of Parks

• Citation: 207 A.D.3d 837,172 N.Y.S.3d 164
• Decision Date: 07 July 2022
• Docket Number: 533228
• Parties: In the Matter of 61 CROWN STREET, LLC, et al., Appellants, v. NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, et al., Respondents.
• Court: New York Supreme Court Appellate Division

207 A.D.3d 837
172 N.Y.S.3d 164

In the Matter of 61 CROWN STREET, LLC, et al., Appellants,
v.
NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, et al., Respondents.

533228

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

Calendar Date: May 31, 2022
Decided and Entered: July 7, 2022

172 N.Y.S.3d 166

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

Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for New York State Office of Parks, Recreation and Historic Preservation, respondent.

Barbara Graves–Poller, Corporation Counsel, Kingston, for Kingston Planning Board and another, respondents.

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

Before: Garry, P.J., Egan Jr., Clark, Aarons and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J.

Appeal from a judgment of the Supreme Court (Mott, J.), entered April 7, 2021 in Ulster County, which, in a proceeding pursuant to CPLR article 78, granted a motion by respondent Office of Parks, Recreation and Historic Preservation to dismiss the petition.

This appeal concerns one of several challenges to the Kingstonian project (hereinafter the project), which seeks to redevelop certain parcels of land located in the Kingston Stockade Historic District (hereinafter KSHD) (see 61 Crown St., LLC v. City of Kingston Common Council, 206 A.D.3d 1316, 171 N.Y.S.3d 203 [2022] ). The KSHD comprises 32.11 acres of the uptown neighborhood in the City of Kingston, Ulster County and is listed on the National Register of Historic

207 A.D.3d 838

Places, tracing back more than 300 years to the nation's colonial period and Revolutionary era. In 2018, respondents JM Development Group, LLC, Herzog Supply Co., Inc., Kingstonian Development, LLC and Patrick Page Holdings, L.P. (hereinafter collectively referred to as the developers) submitted an application to respondent City of Kingston for the project, seeking to redevelop about 2.5 acres of land within the KSHD into a parking garage, retail space, apartments, public pedestrian bridge and plaza and boutique hotel. The project was thereafter determined to be subject to the State Environmental Quality Review Act (see ECL article 8 [hereinafter SEQRA]), pursuant to which respondent City of Kingston Planning Board became the lead agency for the review process. Further, due to the allocation of public funding for the project by respondent Empire State Development Corporation (hereinafter ESD), respondent Office of Parks, Recreation and Historic Preservation (hereinafter OPRHP) also became involved in the coordinated review process (see PRHPL 14.09 ).

In September 2019, OPRHP provided a letter to the developers and the Planning Board advising that the project, as presented, would have adverse effects to the KSHD consisting of, among other things, the obfuscation of the historic northern boundary, the elimination of the historic Fair Street Extension and the impact of "monolithic" structures on the surrounding district (hereinafter the adverse impacts letter). The letter further advised that the parties should continue consulting on modifications to "avoid, minimize, or mitigate" those effects. Pursuant to OPRHP's request, the developers presented a new set of visual renderings and other design materials responding to the areas of concern raised in the adverse impacts letter. As a result, in February 2020, OPRHP issued a

172 N.Y.S.3d 167

letter indicating that it had reviewed the redesign materials and determined that the project would no longer have an adverse impact on the KSHD (hereinafter the no impact letter).

In August 2020, petitioners – seven limited liability corporations that own real property in the KSHD which they lease to various businesses – commenced this proceeding seeking, among other things, to annul the no impact letter, and an order directing ESD and OPRHP to meaningfully review alternatives to the project.¹ Petitioners argued that ESD and OPRHP failed to fulfill their duty to consider alternatives to the project

207 A.D.3d 839

pursuant to PRHPL 14.09, that OPRHP's issuance of the no impact letter was unlawful and that OPRHP's reversal of the adverse impacts letter was arbitrary and capricious.² OPRHP moved to dismiss the petition for, among other things, lack of standing and on the merits. Supreme Court ultimately determined that petitioners indeed lacked standing because they could not establish injury-in-fact based upon allegations of harm to the enjoyment of their "unique property and personal interests" in maintaining the KSHD's historic character by way of their proximity to the project. Accordingly, the court dismissed the petition in its entirety. Petitioners appeal, and we affirm.

" ‘Standing is a threshold determination and a litigant must establish standing in order to seek judicial review, with the burden of establishing standing being on the party seeking review’ " ( Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL–CIO v. City of Schenectady, 178 A.D.3d 1329, 1331, 116 N.Y.S.3d 419 [2019] [brackets and citations omitted], quoting Rudder v. Pataki, 246 A.D.2d 183, 185, 675 N.Y.S.2d 653 [1998], affd 93 N.Y.2d 273, 689 N.Y.S.2d 701, 711 N.E.2d 978 [1999] ). "To establish standing to challenge governmental action, the party asserting standing must show first, an injury-in-fact and, second, that the injury falls within the zone of interests or concerns sought to be promoted or protected by the statutory provision" ( Matter of Lansingburgh Cent. Sch. Dist. v. New York State Educ. Dept., 196 A.D.3d 937, 939, 151 N.Y.S.3d 730 [2021] [internal quotation marks, brackets and citations omitted]; see Matter of New York State Bd. of Regents v. State Univ. of N.Y., 178 A.D.3d 11, 17, 111 N.Y.S.3d 724 [2019], lvs denied 35 N.Y.3d 912, 128 N.Y.S.3d 474, 152 N.E.3d 161, 2020 WL 5183704, 2020 WL...