Creda, LLC v. City of Kingston Planning Bd.

• Docket Number: 533665
• Decision Date: 26 January 2023
• Citation: 212 A.D.3d 1043,183 N.Y.S.3d 591
• Parties: In the Matter of CREDA, LLC, Petitioner, and 61 Crown Street, LLC, et al., Appellants, v. CITY OF KINGSTON PLANNING BOARD et al., Respondents, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

212 A.D.3d 1043

183 N.Y.S.3d 591

In the Matter of CREDA, LLC, Petitioner,and61 Crown Street, LLC, et al., Appellants,

v.CITY OF KINGSTON PLANNING BOARD et al., Respondents, et al., Respondent.

533665

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

Calendar Date: November 14, 2022

Decided and Entered: January 26, 2023

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 Planning Board and another, respondents.

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

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

MEMORANDUM AND ORDER

Clark, J. Appeal from a judgment of the Supreme Court (Richard Mott, J.), entered June 14, 2021 in Ulster County, which dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review, among other things, a determination of respondent City of Kingston Planning Board adopting a negative declaration of environmental significance.

This appeal concerns another challenge to the Kingstonian Project (hereinafter the project), a plan to redevelop certain parcels of land located in respondent City of Kingston, Ulster County (see Matter of 61 Crown St., LLC v. City of Kingston Zoning Bd. of Appeals, 211 A.D.3d 1134, 179 N.Y.S.3d 416, 2022 N.Y. Slip Op. 06845 [3d Dept. 2022] ; Matter of 61 Crown St., LLC v. New York State Off. of Parks, Recreation & Historic Preserv., 207 A.D.3d 837, 172 N.Y.S.3d 164 [3d Dept. 2022] ; 61 Crown St., LLC v. City of Kingston Common Council, 206 A.D.3d 1316, 171 N.Y.S.3d 203 [3d Dept. 2022], lv denied 39 N.Y.3d 904, 2022 WL 17096721 [2022] ). The project, as proposed, would lead to the demolition of an outdoor parking lot and a defunct municipal parking garage located in the Kingston Stockade Historic District (hereinafter KSHD), and the redevelopment of approximately 2.5 acres of land into an apartment building, a boutique hotel, retail space, a pedestrian plaza and a parking garage. Pursuant to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]), respondent City of Kingston Planning Board established itself as the lead agency and classified the project as a type I action (see 6 NYCRR 617.4 ). Respondent Kingstonian Development, LLC, as the project sponsor, submitted part 1 of the full environmental assessment form (hereinafter FEAF). SEQRA then required the Planning Board, as the lead agency, to inventory potential resources that could be affected by the project and complete parts 2 and 3 of the FEAF (see 6 NYCRR 617.6 [a][2]).

Thereafter, the project's developers – 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) – appeared before the Planning Board and met with the City's Historic Landmarks Preservation Commission to present their proposal for the project. Following a request from the Preservation Commission, the developers informed the Planning Board that they would be removing a breezeway from the plan. The developers also appeared at a public Planning Board meeting where members of the public voiced their opinions on the project, and the developers outlined various changes and an upcoming traffic study. After the developers conducted various studies and reports directed by the Planning Board, those reports were made available for public review.

On December 16, 2019, after numerous meetings, the Planning Board issued a negative declaration. Through the negative declaration, the Planning Board concluded that there were no significant adverse effects associated with the project, as modified through the SEQRA process. The declaration also identified the interested agencies, the projects’ consultants, the meetings held regarding the project and the reports on which the Planning Board relied in reaching its determination.

Petitioner Creda, LLC commenced the instant CPLR article 78 proceeding in January 2020. Soon after, the owners of certain neighboring properties – petitioners 61 Crown Street, LLC, 311 Wall Street, LLC, 317 Wall Street, LLC, 323 Wall Street Owners, LLC, 63 North Front Street, LLC, 314 Wall Street, LLC and 328 Wall Street, LLC (hereinafter collectively referred to as petitioners) – filed a motion to intervene as party petitioners; Supreme Court granted said motion. Petitioners then filed an amended petition through which they alleged that the Planning Board failed to follow substantive and procedural requirements of SEQRA and sought the annulment of the negative declaration, as well as of a subdivision approval that the Planning Board granted for the project.

Following joinder of issue, Supreme Court noted that petitioners had standing to challenge the negative declaration due to the proximity of their properties to the site of the project. Ultimately, however, Supreme Court found that the negative declaration was supported by the record and that the Planning Board appropriately identified, investigated and discussed the potential adverse impacts that the project would have on the KSHD. Supreme Court did not address petitioners’ challenges to the subdivision approval, finding that "any remaining contentions [were] rendered academic" by its findings regarding the negative declaration, and dismissed the petition. Petitioners appeal.

Initially, we disagree with the contention raised by the City and the Planning Board (hereinafter collectively referred to as the municipal respondents) that petitioners lack standing to challenge the negative declaration. "To establish standing in the SEQRA context, petitioners were obliged to establish both an injury-in-fact and that the asserted injury was within the zone of interests sought to be protected by SEQRA" ( Matter of Peachin v. City of Oneonta, 194 A.D.3d 1172, 1174, 149 N.Y.S.3d 258 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted]; see Matter of Cady v. Town of Germantown Planning Bd. , 184 A.D.3d 983, 986, 126 N.Y.S.3d 543 [3d Dept. 2020] ). "[S]tanding to challenge an alleged SEQRA violation by a governmental entity requires a petitioner to demonstrate that it would suffer direct harm, injury that is in some way different from that of the public at large" ( Matter of Hohman v. Town of Poestenkill, 179 A.D.3d 1172, 1173, 115 N.Y.S.3d 572 [3d Dept. 2020] [internal quotation marks and citation omitted]; see Schulz v. Town Bd. of the Town of Queensbury, 178 A.D.3d 85, 88, 111 N.Y.S.3d 732 [3d Dept. 2019], appeal dismissed 34 N.Y.3d 1177, 123 N.Y.S.3d 563, 146 N.E.3d 528 [2020], lv denied 35 N.Y.3d 1080, 130 N.Y.S.3d 427, 154 N.E.3d 13 [2020], cert denied ––– U.S. ––––, 141 S.Ct. 2513, 209 L.Ed.2d 548 [2021] ). "Petitioners must have more than generalized environmental concerns to satisfy that burden and, unlike in cases involving zoning issues, there is no presumption of standing to raise a SEQRA or other environmental challenge based on a party's close proximity alone" ( Matter of Village of Woodbury v. Seggos, 154 A.D.3d 1256, 1258, 65 N.Y.S.3d 76 [3d Dept. 2017] [internal quotation marks, brackets and citations omitted]; accord Matter of Hohman v. Town of Poestenkill, 179 A.D.3d at 1173–1174, 115 N.Y.S.3d 572 ; see Matter of Peachin v. City of Oneonta, 194 A.D.3d at 1175, 149 N.Y.S.3d 258 ).

In finding that petitioners have standing to challenge the negative declaration, we note that SEQRA's intended purposes are "to declare a state policy which will encourage productive and enjoyable harmony between [humans] and [their] environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human and community resources important to the people of the state" ( ECL 8–0101 ; see 6 NYCRR 617.1 ). In the context of SEQRA, the term "[e]nvironment" encompasses "resources of agricultural, archeological, historic or aesthetic significance" and "existing community or neighborhood character," among other things ( 6 NYCRR 617.2 [l ]; see ECL 8–0105[6] ). With this in mind, we also note that the KSHD is a unique and historic district "listed on the National Register of Historic Places, tracing back more than 300 years to the nation's colonial period and Revolutionary era" ( Matter of 61 Crown St., LLC v. New York State Off. of Parks, Recreation & Historic Preserv., 207 A.D.3d at 837–838, 172 N.Y.S.3d 164 ). Although proximity to a project, alone, is insufficient to grant standing to challenge a negative declaration, petitioners own property within the unique area that is the KSHD, and the connection between their properties and the KSHD's historical resources and community character "is more than that of the general public" ( Matter of Save the Pine Bush, Inc. v. Common Council of the City of Albany, 13 N.Y.3d 297, 306, 890 N.Y.S.2d 405, 918 N.E.2d 917 [2009] ). Further, petitioners’ allegations – that the project's size, scope and appearance will drastically reduce the historical significance of the KSHD, cause the loss of archeological resources that only exist within the KSHD and change the community's quaint character – fall within SEQRA's stated purpose of protecting the environment. Accordingly, petitioners’ allegations aimed at protecting the unique nature of the KSHD, considered alongside their properties’ distinct connection to the KSHD's historical resources, sufficiently articulate an injury different than that of the public at large; thus, we find that they have standing to challenge the negative declaration (see id. at 305, 890 N.Y.S.2d 405, 918 N.E.2d 917 ; Matter of Cady v. Town of Germantown Planning Bd., 184 A.D.3d at 986, 126 N.Y.S.3d 543 ; see also Matter of Troy Sand & Gravel Co., Inc. v. Town...