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What was your involvement in the Kinderhook case?

When I took office in January of 2010, for years it had not been the practice of the City Attorney to attend Planning Board meetings.  Legal advice was provided to board members when asked.  The Kinderhook project commenced well over a year before I took office and made its first presentation at the December 2009 Planning Board meeting.  I was first contacted on the matter in June of 2010 when Kinderhook filed their notice of claim.  They chose to challenge the Planning Board decision in the Schenectady County Supreme Court rather than Fulton County.  I drafted a brief in opposition to their petition and personally assembled over 500 pages of documents that constituted the written record of the proceedings.  I appeared in the Schenectady County Supreme Court on August 20, 2010 for oral arguments (even though the Gloversville City Attorney’s office had not been copied on the correspondence setting the date for oral arguments) where I spoke for almost 20 minutes on behalf of the City.  I explained that judicial review of local board decisions was limited and that the determination of the planning board had to be sustained because it had a rational basis, even if the court prefered a different conclusion.

I focused my arguments on what I considered to be the strongest points in the Planning Board’s decision.  Pursuant to the Gloversville Zoning Code, in determining whether to approve a special permit, the Board is required to assess whether the use will be in harmony with the appropriate and orderly development of the district in which it is situated and will not be detrimental to the orderly development of adjacent districts, and whether the use may be hazardous or inconvenient to the neighborhood or conflict with the normal traffic of the neighborhood.  My argument was that this project failed to meet both standards.  Because the project was placed at the end of the previously dead-end Lee Avenue and Northern Terrace, traffic on those streets would necessarily increase, and because there are no sidewalks or crosswalks in that area it was rational to conclude that the increase in traffic would be both hazardous or inconvenient to the neighborhood and conflict with the normal traffic. 

I also pointed out that it is rational to conclude that establishing a 48 unit apartment complex was inconsistent with the appropriate and orderly development of the neighborhood which consisted exclusively of single-family houses.  I told the court that this project also contravened several portions of Gloversville Comprehensive Plan which in several provisions indicated that large residential projects were to be located in or near the downtown commercial corridor.

In the alternative I argued that if the Court found that the Gloversville Planning Board had failed to make sufficient findings of fact necessary to support its decision then the proper remedy would be to remand the matter back to the Board.

Kinderhook filed the notice of entry of the Schenectady Supreme Court’s decision in their favor on October 8, 2010 and I filed the notice of Appeal on behalf of the City.  I attempted to obtain copies of the transcript of the two appearances before the Schenectady Court necessary for the appeal to the Appellate Division but despite leaving three messages with the stenographer did not receive any return calls.  It was in this period that a new City Attorney was appointed.

I provided my replacement with copies of all my computer files including briefs and notes on all pending cases including the Kinderhook matter and told him that I was willing to help him with any matters that he had questions on.  I was not contacted with regard to the Kinderhook appeal and had no involvement after 2010.  I do not know what arguments were included in the City’s brief to the Appellate division or in any oral arguments, but based on my reading of that court’s decision it appears that my replacement moved the focus of the City’s case to the stormwater runoff issue. 

I had abandoned this line of reasoning in my arguments in lower court, despite it being mentioned in the minutes as a concern of the Planning Board when denying the application, for two reasons.  First that issue was not explicitly listed as one of the  grounds for denying the application in the Planning Board's Basis for Denial issued in May of 2010.  Kinderhook had presented the expert opinion of a Schenectady engineering firm, supported by substantial documentation, concluding that the project would not exacerbate the runoff problem in the surrounding neighborhood, but would actually reduce it.  There was no other expert evidence presented at the hearing to contradict this conclusion. 

The other reason I chose not to focus on that issue was because as part of the mandatory State Environmental Quality Review, the Planning Board, which had assumed the role of lead agency, issued a determination as part of that process stating  “The area adjacent to the project site already has significant stormwater runoff problems.  A substantial stormwater detention system is being proposed as part of the project, which will have little or no impact on the stormwater runoff conditions of adjacent properties.”  While there is case law supporting the position that a SEQR determination is not binding on another body, I found it too contradictory for the Planning Board to state that the project will have “little or no impact” in its SEQR finding and then state that the issue creates a sufficient reason to deny the application for a special permit.  In its decision dated October 27, 2011, the Appellate Division agreed.