SUPREME COURT OF THE STATE OF NEW YORK

COLINTY OF ULSTER

In the Matter of

RUPCO, n\{C.,
Petitioner \rERIF'IED PETITION

rndex No.: l8 - 3 aUt)

For a Judgment Pursuant to CPLR Article 78 RJI No.:
Date filed
-against-
FILED
CITY OF KINGSTON PLANNING BOARD, *}:rt p$*[r4-*'{
g'fP li 2018 r
Respondent. .tt
NINAPOSTUPACK
IJI-STER OOUNTY CLËRK

Petitioner RUPCO, lnc. ("RUPCO"), by and through its attorneys, 'Whiteman Osterman

& Hanna" LLP, and Riseley & Moriello, PLLC as and for its verified petition herein alleges as

follows:

STATEMENT

1. This is a CPLR Article 78 proceeding, pursuant to General City Law $ 27-a (1I),

in which Petitioner seeks annulment of the denial by Respondent City of Kingston Planning

Board (the "Planning Board") of a special use permit and site plan application for the

construction of a residential multi-family affordable housing project (the "Project").

2. The Project consists of 66 residential units, including a historic rehabilitation of

34 units atthe former Ulster Coünty Health Department Complex, a caretaker's cottage, and the

creation of an additionai 32 units in a new building, located at 300 Flatbush Avenue, Kingston,

New York (the '?roperty"). RUPCO currently owns the Properfy.

 3. On October 28,2016, RUPCO applied to the Planning Board for a special use

permit and site plan approval for the Project.

4. The Project was originally located within the RR One Family Residence zone, but

was granted a zoning change by the City of Kingston Common Council by Resolution 149 of

2077 to the R-6 Muitiple Residence zone.

5. Under the City's Zoning Ordinance, the Project is an allowable use within the R-6

district and requires a special use permit from the Planning Board.

6. RUPCO submitted a completed application to the Planning Board, together with

Full Environmental Assessment Form ("FEAF"), as required by the New York State

Environmental Quality Review Act ("SEQRA") (Article of the Environmental Conservation

.8
Law) and its implementing regulations (6 NYCRR $$ 617 et seq.), and detailed project maps and

site plans evincing compliance with all of the City's zoningregulations.

7. As part of its SEQRA review process, the Planning Board expressly found that the

Project compiied with all of the requirements of the City's Zoning Ordinance for the grarrt of a

special use permit and site plan approval. The Planning Board's negative declaration was

adopted in May 2017.

8. Nevertheless, in August 2018, the Planning Board denied RUPCO's application

for a special use permit and site plan approval by voting down a resolution to approve the

Project. In doing so, the Planning Board articulated no grounds for its denial of RUPCO's special

use permit and site plan application, and engaged in no deliberation whatsoever.

9. During the nearly two-year review of the Project, RUPCO was also subjected to

numerous instances of communify opposition and prejudice which ultimately pressured and

persuaded the Planning Board to ignore the plain terms of the City's Zoning Ordinance, resulting

2
in the denial of the special use permit and site plan application without any rational basis or

justification.

10, The Planning Board's denial of the special use permit and site plan application

was wholly arbitrary because (i) the Planning Board failed to identify any objective requirement

of the City's Zoning Ordinance relating to site plan approval or special use permit requirements

that RUPCO's application did not satisfy; (ii) the Planning Board otherwise failed to articulate

any lawful basis whatsoever for its decision; (iii) RUPCO satisfied, through objective

documentation, ali requirements for approval of the special use permit and site plan; (iv) the

Planning Board previously issued a SEQRA negative declaration, which specifically found that

RUPCO satisfied all objectives for site plan and special permit approval under the City's Zoníng

Ordinance; and (v) the Pianning Board impermissibly pandered to generalized community

opposition and prejudice stemming from the Project's intended inhabitants andtarget population

of the vulnerable, eiderly and homeless. Accordingly, the Planning Board's determination
should be annulled, with a directive that RUPCO's speciai use permit and site plan application be

granted.

FARTIES AND VENUE

1I. Petitioner RUPCO is a non-for-profit corporation organized under the laws of the

State of New York, with a principal place of business located at 289 Fair Street, Kingston, New

York I240I. RUPCO's mission is to create homeso support people and improve communities

through the construction of quality affordable housing for those in need.

12. Respondent Planning Board of the City of Kingston is a governmental board of

the City of Kingston, New York, that has been delegated authority to review and approve special

5
permits and site plan applications in accordance with the City of KingstonZoning Ordinance and

$$ 27-a and27-b of the General City Law

13. Venue is properly within the County of Ulster pursuant to CPLR 506(b) and
7804(b).

THE PROJECT

14. In fuilherance of its mission to create affordable housing for those in need in the

Kingston community, RUPCO seeks to transform the former Ulster County Health Department

Complex, located at the Property, into a multi-family supportive housing rental project.

15. The purpose of the Project is to provide supportive housing designed to assist

vulnerable elders with special needs.

16. The Project is designed to support a target population of vulnerable elders,

consisting of homeless individuals, age 55 and over, with housing needs and with a disabling

condition or life chailenge, such as serious mental iilness, substance abuse disorder, or military

service resulting in disabilities, such as veterans, chronically homeless and frail or disabled

senlors.

17. The Property is improved with a large structure that was formally the Ulster

County Alms House, which was utilized for the poor and destitute for several decades, and more

recently, housed the Ulster County Health Department. Prior to RUPCO's April 23,2018 closing

on the Property with the County of Ulster, as seller, the premises had been for sale for five years.

18. The Property is improved by a 22,000 square foot Health Department

Administrative Ofnice Building, several outbuildings, existing parking and roadway

appurtenances, which are all planned to be used and rehabilitated as part of the Project.

4
 19. RUPCO's proposed redevelopment of the Properfy includes historic rehabilitation

of the existing building to create 34 adaptive re-use apartment units and new construction of 32

apartment units. A reduced copy of the site plan depicting the redevelopment is attached as

Exhibit A.

2A. On or about October 28,2A76, RUPCO submitted an application for a special use

permit and site plan review to Respondent Planning Board in support of the proposed
redevelopment of the Property. A copy of RUPCO's application is attached as Exhibit B and

incorporated by reference herein.

2I. The purpose of the Project was praised by the Ulster County Planning Board as

serving "acrítical need for affordable housing per the City's Comprehensive Plan." A copy of

the Ulster County Planning Board's recommendation pertaining to the Project is attached as

Exhibit C.

PRIOR LITIGATION

22. Upon information and beliet the current City of Kingston Zoning Ordinance (the

"Zoning Ordinance") was adopted in 1984. A copy of relevant portions of the Zoning

Ordinance, including Sections 405-30 and 405-32, setting forth the criteria for site plan approval

and special use permits, is attached as Exhibit D and incorporated by reference herein.

23. Upon information and belief, the City adopted a Comprehensive Plan pursuant to

the provisions of the General City Law. A copy of the City's Comprehensive Plan is attached as

Exhibit E and incorporated by reference herein.

('RR"
24. The Property was previously zoned on the City of Kingston ZontngMap.

Multi-family residential units are not permitted in RR districts.

5
 25. To accommodate its proposed multi-family redevelopment of the Property,
RUPCO sought to rezone the Property from the RR one-family residence zone to the R-6 zone,

which allows multi-family residential units.

26. RUPCO submitted a zoningpetition, dated October 28,2016,to the Common

Council of the City of Kingston (ihe "Common Council") seeking to amend the zoning law to

rezone the Property as R-6.

27. Following a detailed environmental and zoning review, the Property was rezoned

to R-6 by Resolution I49lZoning Amendment III, adopted by the Common Council inJuly 2017

by a majority vote.

28. The City determined, however, that the majority vote of the Common Council

was not suffrcient to adopt the zoning amendment because certain zoning protest petitions had

been filed and thus a super majority vote was required.

29. RUPCO challenged that determination in a related CPLR Article 78 proceeding,

and this Court annulled the City's deter.mination. A copy of this Court's decision and order

setting aside the City's determination relating to the validity of the zone change is attached as

Exhibit F and incorporated by reference herein.

30. This Court's decision and order was not appealed by the City and the time period

for appeal has now expired.

31. Therefore, the Project's multi-family residential units are now a permitted use in

zone R-6.

6
 SEORA AND A VAL PROCESS

32. As noted above, in support of its application, RUPCO completed Paft I of the

FEAF and submitted it to the Planning Board, together with a substantial amount of

documentation, including detaiied site plans.

33. On or about December 12,2t16, the Pianning Board sought SEQRA lead agency

status.

34. On or about January I1,2017, the Planning Board initiated coordinated review.

and circulated a Notice of Intent to serve as lead agency to all involved and interested agencies,

and classified the Project as Type I under SEQRA.

35. On or about April I0,2017, the Planning Board formally ratified its status as

SEQRA lead agency for the Project.

36. The Plarming Board conducted a public hearing on or about February 28,2017,

prior to making a determination of environmental significance.

37. At the public hearing, verbal and written comments were received from the public

concerning the Project

38. Several comments and submissions questioned the safety of the Project in light of

its planned inhabitants, including formerly homeless individuals.

39. Among the potential impacts cited by certain participants in the public hearing

process was the unsubstantiated belief that the Project wouid create safety and security issues in

the community due to the nature of the population to be served, and the mix of those populations

with other seniors who would be living on the Property and with individuals in the surrounding

community.

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 40. Although it was under no obligation to do so, and without conceding to any

significant adverse impact, RUPCO responded to concems as to the mix of the on-site senior and

formerly homeless communities by modifying its proposal, such that the entire campus on the

Property would be for seniors aged 55 and older.

41. Thereafter, the Planning Board considered mrmerous additional submissions from

RUPCO related to the site planning and impacts of the Project, including detailed site plan

drawings, maps and plans, reports, legal memoranda and analyses of all potential environmental

impacts of the Project, including potential impacts on traffic, groundwater, stormwater,

community character, visual impacts, utility service, and archeological and historical resources,

among other things.

42. The documents, project maps and plans considered by the Planning Board

included, among other things: existing conditions, site plan, utilities plan, grading and

stormwater plan, erosion and sediment control plan, site details, stormwater details, landscaping

plan, lighting plan and architectural drawings.

THE PLANNING BOARD'S SEQRA DETERMINATION THAT TIIE PROJECT

IMPOSED NO SIGNIFICANT ENVIRONMENTAL IMPACTS

43. On or about Ìviay 8, 2cti7, the Piarming Boarci issueci a Notice and Negative

Declaration, determining that the Project would not have a significant environmental impact, and

fuither finding that adraft Environmental Impact Statement would not be required.

44. A copy of the Pianning Board's SEQRA comprehensive negative declaration is

attached as Exhibit G and incorporated by reference herein.

45. Critically, the Planning Board expressly found that the Project did not conflict

with the community plans or goals offrcially approved and adopted by the City's Zontng

Ordinance, and that the Project "[met] the purposes of [the R-6 District] under Sections 405-30

8
fSite Plan] and 405-32 fSpecial Use Permit] of the City of Kingston Zoníng Ordinance." (Exhibit

G, at27).

46. For the purposes of site plan review, the Planning Board also found that the

Project met the criteria for site plan approval, including:

a. Conformance with the Comprehensive Plan;

b. Design compatibility with surrounding structures;

c. Traffic access ways are adequate;

d. Parking/loading and interior circulation is adequate;

e. Landscaping improvements are adequate;

f. Pedestrian areas and outdoor lighting are sufficient and prevent the
diffusion of glare;

g. Drainage and building design are adequate and handicapped accessible;

and

h. Maximization of energy conservation to the maximum extent practicable.

(Exhibit G, at27).

47. Under Section 405-32(A) of the City's Zoning Ordinance, an owner is entitled to

a special use permit upon compliance with the following conditions and standards:

(1) That all proposed structures, equipment or material shall be readily accessible for
fire and police protection.

(2) That the proposed use is of such location, size and character that, in general, it
will be in harmony with the appropriate and orderly development of the district
in which it is proposed to be situated and wiil not be detrimental to the orderly
development of adjacent properties in accordance with the zoning classification
of such properties.

(3) That, in addition to the above, in the case of any use located in or directly
adjacent to a residential district:

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 a. The location and size of such use, the nature and intensity of operations
involved in or conducted in connection therewith, its site layout and its
relation to access streets shall be such that both pedestrian and vehicular
trafftc to and from the use and the assembly of persons in connection
therewith will not be hazardous or incongruous with said residential
district or conflict with the normal traffic of the neighborhood.

b The location and height of buildings, the location, nature and height of
walls and fences and the nature and extent of screening and iandscaping
on the site shall be such that the use will not hinder or discourage the
appropriate development and use of adjacent land and buildings or
diminish the value thereof.

'When
48. it adopted the negative declaration, the Planning Board specifically

addressed the special use permit criteria in the City's Zorung Ordinance and expressly found

that: "i.) The project is readil)¡ accessible for fire and police protection. ii.) The project is in

harmon)¡ with the R-6 Zoning District; iii.) the project will not be detrimental to surrounding

properties. iv.) Pedestrian and vehicular traffi.c will not be hazardous. nor in conflict with the
normal traffic of the neighborhood. v.) The location and height of the structures and attendant

landscaping will not hinder or discourage appropriate development and use of adjacent lands."

Itrwhihit li qf ?R\ lernnhqcic crrnnlied\

49. Overall, the negative declaration expressly analyzed each of the criteria set forth

in the City's Zoning Ordinance for approval of special permits and site plans, and found in favor

of RUPCO on every single factor.

50. V/ith respect to the Project's compatibility with the Comprehensive Plan, the

Planning Board found the following:

a. The Project served the general welfare of the community because the
proposed multi-family use was compatible "with the character uses now
permitted in the R-6 District";

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 b The proposed use fit the previously established "multi-family and
affordable housing uses proximate to the project site";

c. The rezoning of the Property would permit uses beneficial to marginalized

members of the public;

d. The R-6 District would "not be harmed if the multiple-family use of the
premises is permitted for affordable housing"; and

e. The "proposed uses are consistent with the planning goals of the City of
Kingston, as set forth within the city's land use regulations."

(Exhibit G, at26-27).

51. With regard to fire and police protection, the Planning Board noted that "adequate

numbers of police, fire and emergency personnel and modern response vehicles and apparatus

presently exist to accommodate the project in the City," and, further, that the Project's planned

parking and roadway channelizationwas adequate to permit access. (Exhibit G, at 38).

52. Next, with respect to whether the location, size, and character of the Project is in

harmony with the R-6 Zoning District, the negative declaration found that "the project meet[s]

the purposes of said District," and that "multi-family apartment use and associated development

will be compatible with the character of uses permitted in the R-6 district." (Exhibit G, at26).

53. The Planning Board further found that the Project would not be detrimental to

surrounding properties, and that the R-6 district would not be harmed.

54. Regarding traffic, the negative declaration cited a traffic analysis document
submitted by RUPCO's consulting engineer, which included substantial information conceming

combined peak hour vehicle trips and concluded that the Project would have no substantial

adverse change in existing traffic levels. (Exhibit G, at 18-20).

55. Concerning aesthetics, the Plarxring Board cited the "extensive visual analysis"

performed by the Project's architect and found that "the visual impacts of the proposed action

11
have been mitigated to a point whereby the overall visual effect is not environmentally
significant." The Planning Board also noted that the project site was originally designed in a

manner that complemented the historical nature of the Alms House, as well as the buildings

proximate to the site. (Exhibit G, at28,30-31).

56. The negative deciaration commended the landscaping features of the Project on

several occasions and noted that the "detailed landscaping scheme" developed by RUPCO's

licensed architect would enhance the Property by benefiting flora, fauna and wildlife, and

enhancing a portion of on-site habitat for wildlife and vegetation. (Exhibit G, at24,32).

57. Addressing lighting, the negative declaration found that "the outdoor lighting

levels are consistent with those commonly observed in commercial parking lots as well as at

active residential exteriors" and was in compliance with industry standards. (Exhibit G, at 33-

34).

58. In regard to drainage, the Plarrning Board found that RUPCO's engineering
analyses conducted by RUPCO's engineers, which were reviewed by the Planning Board's own

consulting planner, demonstrated that the Project would "pose no substantial increase in the

potential for erosion, flooding, leaching, or drainage problems." (Exhibit G, at23).

59. With respect to energy conservation, the negative declaration found that

RUPCO's design plans minimized the carbon footprint of the Project to the maximum extent

practicable, and that it likewise would reduce reliance on fossil fuels. Further, the negative

declaration found that the Project would continue using normal and customary energy sources

that would not result in any major energy changes. (Exhibit G, at 34-35).

60. The negative declaration emphasized that the Project would have no adverse

impacts upon community character.

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 61. In fact, the Planning Board's negative declaration specifically stated that "specific

community character attributes will be enhanced by the project." (Exhibit G, at32).

62. The Planning Board also rejected the comments and submissions received from

the public concerning the safety of the Project because of its planned inhabitants, finding that

"examination of community character effects which focuses on homelessness, mental

competency, or other individualized status of the planned occupants of the premises is

impermissible as a matter of law." (Exhibit G, at 33).

63. In its submissions before the Planning Board, RUPCO noted that safety was the

bedrock of its property management protocols and demonstrated that the Project was equipped

with significant safety measures to ensure the safety of residents and neighbors.

64. Specifically, RUPCO's submissions demonstrated that it would use strategically

placed exterior lighting on the campus, 2417 front desk coverage, video surveillance to ensure

safety oversight, and a full time professional staff.

65. In response to questions related to the safety of the Project in light of its planned

inhabitants, the Pianning Board's negative declaration took notice of RUPCO's plans to provide

for 24 hour a day and 7 days a week coverage at the front reception desk, as well as for an on-site

live-in caretaker and trained staff members to provide for continuing evaluation and health care

of the tenants. (Exhibit G, at 33).

PUBLIC HEARING AND WRITTEN SUBMISSIONS TO THE PLANNING BOARD

66. After completing the SEQRA process, the Planning Board scheduled an

additional round of public hearings and accepted the submission of written comments concerning

the Project.

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 67. Throughout the March 19,2018 and April 16, 2018 public hearing and extended

comment period, the Project was met with generalized community opposition to the Project,

based on the public's unsubstantiated opposition to the formerly homeless inhabitants of the

Project.

68. For example, issues raised by the public included pejorative comments about the

target population of the Project, which consists of homeless individuals, age 55 and over, with

housing needs and with a disabling condition or life chailenge, such as serious mental illness,

substance use disorder, military service with disabiiities, such as veterans, chronically homeless

and frail or disabled seniors.

69. On or about March 19,2018, the Planning Board held a continued public hearing

to consider RUPCO's application and allow public comments. A copy of the transcript of that

public hearing is attached as Exhibit H and incorporated by reference herein.

70. During the March 19, 2018 public hearing, members of the public expressed

concerns regarding the Proj ect' s inhabitants.

71. In one such comment, a City resident stated that the Project had the propensity for

a "volatile mix" of inhabitants, including "potentially of homeless with mental illnesses and

seniors." The resident further remarked that "[t]he elephant in the room for me is who is this

facilify for." (Exhibit H, at29-30).

72. In another statement, a member of the public remarked that "the neighbors are

scared . . don't be scared of what you don't know, be scared of what you do know." This

comment was met with applause from other attendees of the hearing. (Exhibit H, at47).

t4
 73. On or about April 16, 2018, the Planning Board held a public hearing to consider

RUPCO's appiication and allow public comment concerning the Project. A copy of the

transcript of that public hearing is attached as Exhibit I and incorporated by reference herein.

74. During the April 16, 2018 public hearing, members of the public expressed

additional concerns regarding the Proj ect' s inhabitants.

75. In one such commeÍtt, a member of the public expressed that "people that have

children in the neighborhood are scared because there are going to be people walking around the

neighborhood [from the Project], there's nowhere for them to go." (Exhibit I, at76).

76. In another comment at the April 16, 2018 public hearing, a member of the public

questioned whether "RUPCO really addressed the concern of the neighborhood about mixing

homeless with mental health and substance abuse issues with homeless seniors." (Exhibit I, at

s7).

77. Another resident fuither pointed out that RUPCO was "going to mix prey with

predators . . . ft]hat is not a good combination." (Exhibit I, at 91).

78. In a written submission to the Planning Board dated April 18,2018, a City

resident vehemently objected to the Project's intended inhabitants. The resident stated the

following: "the saying 'build it and they will come' is very fitting. If all we are buiiding is low

income housing in the City of Kingston, we sure will not be getting middle income or upper

income residents to come and make Kingston their home." A copy of this written comment is

attached as Exhibit J and incorporated by reference herein.

79. In a written submission to the Planning Board dated April 27, 2018, another
member of the public urged the Planning Board "to consider the amount of security that will be

onsite . . . the population being considered may have violent or criminal histories and will be

15
allowed to come and go from the property at will." A copy of this written comment is attached

as Exhibit K and incorporated by reference herein.

80. In a writlen submission to the Planning Board dated March 26, 2AI8, a City

resident opined that "it is also ridiculous to assume that there will not be issues when you

commingle special needs individuals, veterans, fraii and disabied aiongside a senior housing

complex on the same campus . . supportive housing wili include residents with many manic

disorders (schizophrenia, paranoia, psychiatric disorders, bipolar, manic depressive), substance

abuse, HIV, veterans fwith] disabilities/less honorable discharges and chronic homelessness." A

copy of this written comment is attached as Exhibit L and incorporated by reference herein.

81. In the same March26,2018 written submission, the resident further noted that

RUPCO's stated intention to "provide safety for residents and neighbors . . . should send a red

flag to proceed with caution." (Exhibit L).

82. In an effort to address and resolve the speculative comments and issues raised by

the public, RUPCO produced comprehensive, detailed responses in multiple submissions to the

Planning Board, which provided in-depth answers to all issues raised at the public hearings and

in written submissions to the Board. A copy of RUPCO's responses is affached as Exhibit M.

SPECIA.L PERMIT AND PI,AN REOUIREMENTS

83. Pursuant to Section 405-32(A) of the City's Zoníng Ordinance and General City

Law $ 2l-b,the Planning Board is authorizedto issue special use permits. Section 405-32(A)

specifies that the Planning Board must consider the following objectives:

(1) That all proposed structures, equipment or material shall be readily accessible for
fire and police protection.

(2) That the proposed use is of such location, size and character that, in general, it
will be in harmony with the appropriate and orderiy development of the district in

t6
 which it is proposed to be situated and will not be detrimental to the orderly
deveiopment of adjacent properties in accordance with the zoning classification of
such properties.

(3) That, in addition to the above, in the case of any use located in or directly adjacent
to a residential district:

a. The location and size of such use, the nature and intensity of operations
involved in or conducted in connection therewith, its site layout and its
relation to access streets shall be such that both pedestrian and vehicular
traffrc to and from the use and the assembly of persons in corurection
therewith will not be hazardous or incongruous with said residential
district or conflict with the normal traffic of the neighborhood.

b The location and height of buildings, the location, nature and height of
walls and fences and the nature and extent of screening and landscaping
on the site shall be such that the use will not hinder or discourage the
appropriate development and use of adjacent land and buildings or
diminish the value thereof.

84. RUPCO's application established compliance with each of these conditions.

85. In fact, when it adopted the negative declaration for the Project, the Planning

Board expressly addressed each of these conditions and expressly acknowledged RUPCO's

compliance with these conditions.

86. Pursuant to $ 405-30 of the City's Zornng Ordinance and General City Law $ 27-

a, the Planning Board has the authority to issue site plan approval.

87. In approving a site development plan, the City's Zoning Ordinance allows the

Plaruring Board to consider the following objectives:

(1) That the site plan is in

conformance with such relevant porlions of the
Comprehensive Plan of the Cify that may be in existence.

17
(2) That the design of all structures is compatible with that of sùrrounding structures.
Compatibility shall be determined by a review of proposed use of materials, scale,
mass, height, color, texture and location of the structure or structures on the site.

(3) That all proposed traffrc access\Ã/ays are adequate but not excessive in number;
adequate in width, grade, alignment and visibility; not located too near street
corners or other piaces of public assembly; and meet other similar safety
considerations.

(4) That adequate off-street parking and loading spaces are provided to prevent the
parking in public streets of vehicles of any persons connected with or visiting the
use and that the interior circulation system is adequate to provide safe
accessibility to all required ofÊstreet parking lots, loading bays and building
services.

(5) That all playground, parking and service areas are reasonably screened, at all
seasons ofthe year, from the view ofadjacent residential lots and streets and that
the general landscaping of the site is such as to enhance the character of the City
and is in character with that generaily prevailing in the neighborhood.

(6) That all existing trees over eight inches in diameter, measured three feet above the
base of the trunk, shall be retained to the maximum extent possible.

(7) That allplazas and other paved areas intended for use by pedestrians use
decorative pavements and plant materials so as to prevent the creation of expanses
of pavement.

(8) That all outdoor lighting is of such nature and so arranged as to preclude the
diffi¡sion of glare onto adjoining properties and streets.

(e) That the drainage system and the internal water and sewer systems are adequate
and that all connections to City systems are in accordance with City standards.

(10) That the site plan and building design accommodate the needs of the handicapped
and are in conformance with the state standards for construction conceming the
handicapped.

(11) That the site plan and building design maximize the conservation of energy.

18
 88. RUCPO's application established compliance with each of these objectives.

89. In the Planning Board's negative declaration, the Planning Board considered these

objectives, and expressly acknowledged the Project's compliance with all of the objectives for

site pian approval.

90. Rather than apply the iaw to the facts, 3 members of the 5 person Pianning Board

voted to depart from the prior determination in the SEQRA approval process that the Project

complied with the objectives of Section 405-32(A) and 405-30 of the Zoning Ordinance and

denied the special permit and site plan application based on impermissible community opposition

and prejudice.

AUGUST 20.2018 PLANNING BOARD DENIAL

9L At the August 20, 2018 meeting of the Plarming Board, the Plan-ning Board

denied RUPCO's application.

92. During the August 20, 2AI8 meeting, RUPCO made its final presentations and

answered any outstanding questions from the Planning Board members. The Chairman of the

Planning Board, Wayne Platte, specifically asked the Planning Board members if they had any

outstanding site plan issues and the respective board members had no remaining issues.

93. Near the conclusion of the meeting, a detailed resolution was distributed that

expressly noted that "the Board votes to approve the Site Plan/Special Permit" for the Project

and articulated the rationale for approval, including express findings that the application was in

accordance with the City's Zoning Ordinance. A copy of the resolution and voting record of the

Planning Board members is attached as Exhibit N and incorporated by reference herein.

94. The resolution was read into the record by Chairman Platte.

I9
 95. Notwithstanding the clear language indicating the Planning Board's apparent

approval of the application, the Planning Board voted not to adopt the resolution, and the

resolution was defeated by a vote of 3-2.

96. RUPCO, through counsel present at the meeting, specifically asked the Planning

Board and its Counsei, "'Where does this leave us?" after the vote.

97. Despite this, the Planning Board members did not explain their rationale at the

meeting for voting down the resolution, and entirely failed to articulate any rational basis or

justification whatsoever for voting to deny the speciai permit/site plan.

98. The Planning Board did not adopt any written findings, any writlen bases for its

denial of RUPCO's application, and did not offer any written rational whatsoever for its denial of

RUPCO's application. A copy of the minutes of the Plaruring Board's August 20,2018 meeting

is attached as Exhibit O and incorporated by reference herein.

99. Despite requests for further instruction or guidance made by RUPCO's counsel,

the Board voted to adjourn the meeting.

AS AND FOR A FIRST CAUSE OF ACTION

(Arbitrary Denial of Special Use Permit)

100. Petitioner repeats and realleges each of the foregoing paragraphs as if fully set
forth herein.

101. The Planning Board's denial of the special permit is arbitrary and capricious and

unsupported by substantial evidence in the record.

I02. The only permissibie consideration for the Planning Board was whether the

application was consistent with the City's Zoning Ordinance provisions reiating to special

permits in accordance with General City Law $ 27-b.

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 103. Pursuant to City Zoning Ordinance $ 405-32(A), the Planning Board is authorized

to consider the following objectives:

(1) That all proposed structures, equipment or material shall be readily accessible for
fire and police protection.

(2) That the proposed use is of such locaticn, size and character that, in general, it
will be in harmony with the appropriate and orderly development of the district in
which it is proposed to be situated and will not be detrimental to the orderly
development of adjacent properties in accordance with the zoning ciassification of
such properties.

(3) That, in addition to the above, in the case of any use located in or directly adjacent
to a residential district:

a. The location and size of such use, the nature and intensþ of operations
involved in or conducted in connection therewith, its site layout and its
relation to access streets shall be such that both pedestrian and vehicular
traffic to and from the use and the assembly of persons in connection
therewith will not be hazardous or incongruous with said residential
district or conflict with the normal traffic of the neighborhood.

b The location and height of buildings, the location, nature and height of
wails and fences and the nature and extent of screening and landscaping
on the site shall be such that the use will not hinder or discourage the
appropriate development and use of adjacent land and buildings or
diminish the value thereof.

104. In support of its application for approval of the special use permit, RUPCO
submitted evidence confirming that the proposed site plans were entirely consistent with the

City's Zoning Ordinance provisions.

105. The Planning Board expressly found that RUPCO's application met each of the

criteria of the Zoning Ordinance when it adopted its SEQRA negative declaration.

106. Nevertheless, the Plarning Board voted down RUPCO's application and in doing

so, failed to identify any information whatsoever to conflict with RUPCO's submission relating

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 to compliance with the City's Zoning Ordinance, or the Planning Board's own prior
determination, nor did the Planning Board otherwise identify any particular component of the

special permit that did not comply with the City's Zoning Ordinance.

107. The Planning Board failed to support its denial with reference to any evidence or
,
information in the record before it. The only evidence before it demonstrated that the Projeci met

the requirements for issuance of a special permit and the Planning Board faited to identi$ any

contrary evidence.

108. Indeed, the findings made by the Planning Board in the Planning Board's

adoption of a SEQRA negative declaration confirmed that the Project met the special use permit

objectives under the City's Zoníng Ordinance, and would have no adverse impacts.

109. The Planning Board further rejected the special permit without any reference to

permissible considerations.

110. The Planning Board's denial of the speciai permit is, therefore, arbiftary and

capricious and should be annulled.

111. RUPCO is, therefore, entitled to a judgment annulling the Planning Board's
rejection of RUPCO's special use permit application, and directing the grant of that application.

AS AND F'OR A SEC CAUSE OF ACTION

(Arbitrary Denial of Site Plan)

I12. Petitioner repeats and realleges each of the foregoing paragraphs as if fully set

forth herein.

113. The Planning Board's denial of the site plan is arbitrary and capricious and

unsupported by any substantial evidence in the record.

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 II4. The only permissible consideration for the Planning Board was whether the site

plans weÍe consistent with the City's Zoning Ordinance provisions relating to the site plan

approval in accordance with General City Law $ 27-a.

115. In approving a site development plan, Section 405-30 of the City's Zoning
Ordinance requires the Planning Board to consider the foilowing objectives:

(1) That the site plan is in

conformance with such relevant portions of the
Comprehensive Plan of the City that may be in existence.

(2) That the design of all structures is compatible with that of surrounding structures.
Compatibility shall be determined by a review of proposed use of materials, scale,
mass, height, color, texture and location of the structure or structures on the site.

(3) That all proposed traffrc accessways are adequate but not excessive in.number;
adequate in width, grade, alignment and visibility; not located too near street
corners or other places of public assembly; and meet other similar safety
considerations.

(4) That adequate off-street parking and loading spaces are provided to prevent the
parking in public streets of vehicles of any persons connected with or visiting the
use and that the interior circulation system is adequate to provide safe
accessibility to all required off-street parking lots, loading bays and building
services.

(s) That all playground, parking and service areas are reasonably screened, at all
seasons of the year, from the view of adjacent residential lots and streets andthat
the general landscaping of the site is such as to enhance the character of the City
and is in character with that generally prevailing in the neighborhood.

(6) That ali existing trees over eight inches in diameter, measured three feet above the
base of the trunk, shall be retained to the maximum extent possible.

(7) That aliplazas and other paved areas intended for use by pedestrians use
decorative pavements and plant materials so as to prevent the creation of expanses
of pavement.

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 (8) That all outdoor lighting is of such nature and so arranged as to preclude the
diffusion of glare onto adjoining properties and streets.

(9) That the drainage system and the intemal water and sewer systems are adequate
and that all connections to City systems are in accordance with City standards.

(10) That the site plan and building design accommodate the needs of the handicapped
and are in conformance with the state standards for construction conceming the
handicapped.

(1 1) That the site plan and building design maximize the conservation of energy.

116. The Planning Board's denial of RUPCO's application for a site pian is arbitrary

and capricious because none of the above items were analyzed or cited as a basis for denying the

site plan application.

1I7. As demonstrated in the site plans, documentation and analyses submitted in

support of its application for approval of the site plan, RUPCO established compliance with each

of these items.

118. The Planning Board expressly found that RUPCO's application met the criteria

for site plan approval when it adopted its SEQRA negative declaration.

119. The Planning Board did not identifu any information to conflict with RUPCO's

submission relating to these issues, or otherwise dispute that there were any negative impacts

associated with the site plan.

120. The Planning Board failed to support its denial with reference to any evidence or

information in the record before it. The only evidence before it, which was considered in the

Planning Board's own SEQRA negative declaration, demonstrated that the site plans and project

met the requirements for site plan approval, and the Planning Board failed to identify any

contrary evidence.

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 I2I. The Planning Board's deniai of RUPCO's site plan is, therefore, arbitrary and

capricious and should be arurulled.

122. RUPCO is further entitled to a judgment determining that it is entitled to approval

of its site plan and compelling the Planning Board to approve its application.

AS AND FOR.A. THIRD CAUSE OF ACTION

(Failure to Support Determination with Evidence in the Record-Special Permit)

I23. Petitioner repeats and realleges each of the foregoing paragraphs as if fully set

forth herein.

I24. In order to deny an application for a special permit, the Plaruring Board must
make findings to sustain its determination.

125. Such findings must be supported by competent evidence in the record and must be

made with reference to objective criteria authorized by the City's ZoniLngOrdinance and General

City Law ç 27-b.

126. The Planning Board here made no adequate findings to sustain its denial of

RUPCO's special permit application.

I21. The Planning Board's denial of RUPCO's special permit is, therefore, arbitrary

and capricious and should be annulled.

I28. RUPCO is, therefore, entitled to a judgment annulling the Planning Board's

rejection of its site plan application, and directing the grant of that application.

AS AND FOR A FO CAIISE, OF' ACTION

(Failure to Support Determination with Evidence in the Record-Site Plan)

129. Petitioner repeats and realleges each of the foregoing paragraphs as if fully set
forth herein.

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 130. In order to deny an application for a site plan, the Planning Board must make
findings to sustain its determination.

13 1. Such findings must be supported by competent evidence in the record and must be

made with reference to objective criteria authorized by the City's ZoningOrdinance and General

City Law $ 27-a.

132. The Plaruring Board here made no appropriate site plan findings whatsoever to

sustain its denial of RUPCO's site plan.

133. The Planning Board failed to articulate any reasons based on the administrative

record in support of its denial of the application.

134. The Planning Board's denial of RUPCO's site plan is, therefore, arbitrary and

capricious and should be annulled.

135. RUPCO is further entitled to a judgment determining that it is entitled to approval

of its site plan application and compelling the Planning Board to approve its application.

AS AND FOR A FIFTH CAUSE OF ACTION

(The Planning Board was Precluded from Denying the

Application by Administrative Stare Decisis)

136. Petitioner repeats an<i reaiieges each of the foregoing paragraphs as if fuiiy set

forth herein.

137. An administrative ageîcy such as the Planning Board here is precluded by the

doctrine of administrative stare decisis from reaching a corrtrary conclusion based upon facts

where are neariy identical.

138. Accordingly, the Planning Board was precluded from denying the special use

permit and site plan application based on any perceived failure of the Project to comply with the

objective criteria for site plan and special use permits as set forth in the City's Zoníng Ordinance,

26
because the Planning Board previously issued a SEQRA negative declaration by which it
expressly determined that the Project satisfied such criteria.

139. To the extent the Planning Board relied on perceived potential adverse impacts on

the character of the community, and was focused on concems about perceived safety with the

nature of the population intended to be served by the Project, the Flanning tsoard was preciuded

from denying the special use and site plan application on such grounds because the Planning

Board previously issued a SEQRA negative declaration by which it determined that the Project

would have no negative effect upon community character.

140. In fact, the Planning Board's SEQRA negative declaration specifically noted that

"specific community character attributes will be enhanced by the project."

I4I. The Planning Board's denial of RUPCO's site plan and special permit is,

therefore, arbitrary and capricious and should be annulled.

142. RUPCO is further entitled to a judgment determining that it is entitled to approval

of its site plan and special use permit appiication and compelling the Planning Board to approve

its application.

AS AND F'OR A SIXTH CAUSE OF ACTION

(Determination Based on Impermissible Public Opposition as to Use of the Property)

1,43. Petitioner repeats and realieges each of the foregoing paragraphs as if fully set

forth herein.

I44. In October 2016, RUPCO applied for the necessary City approvals to allow for

the development of its Project.

1+5. In December 2016, The Planning Board sought SEQRA lead agency, and
declared itself lead agency in Aprii 2017.

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 146. As SEQRA lead agency, the Planning Board is the primary agency for evaluating

all potential environmental impacts of the proposed Project.

147. The Planning Board evaluated the Project by completing the FEAF and, after such

consideration, was to determine whether or not potential adverse impacts attributable to the

Project were significant anð,, if rrot, to issue a negative determinaiion of significance.

148. In May 2017, the Pianning Board issued a 4l-page, single-spaced negative

declaration, determining that the Project did not conflict with the community plans or goals

officially approved and adopted by the City's Zoníng Ordinance, and that the Project "fmet] the

purposes of the [R-6 District] under Sections 405-30 [Site Plan] and 405-32 fSpecial Use Permit]

of the City of Kingston ZoningOrdinance."

149. The adoption of a SEQRA negative declaration constituted an affirmative finding

by the Planning Board that the Project will have no significant adverse environmental impacts on

the environment.

150. After the Planning Board issued the negative declaration, it scheduled public
hearings as required under the City Zoning Ordinance, and received written comments from the

public concerning the Project.

151. On or about March 19,2018 and April 16,2078, the Planning Board held public

hearings to consider RUPCO's application and allow public comment concerning the Project,

where hostile neighborhood opponents pressured the Planning Board to deny the applications

based on numerous irrelevant and inappropriate topics.

152. The neighborhood opponents offered only speculative, conclusory and

generalized statements regarding safety and security concerns associated with the target
population of the Project.

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 153. The same concems regarding the planned residents of the Property were
repeatedly raised in written submissions to the Planning Board.

I54. The unfounded animosity expressed by the opponents then permeated into the

considerations of the members of the Planning Board and ultimately into the Planning Board's

denial of RUPCO's special permit and site plan.

155. The denial of RUPCO's applications by the Planning Board, based on

speculation, animus and community pressure was arbitrary and capricious and an abuse of

discretion, particularly in light of the fact that the Planning Board previously had adopted a

SEQRA negative declaration that addressed, among other things, potential impacts on the

neighborhood and community.

156. The Planning Board offered no basis to change its position on issues previously

addressed in the SEQRA negative declaration, including perceived threats to safety or adverse

impacts on the surrounding community, or site plan and special use criteria set forth within the

City of Kingston ZoningLaw.

157. Indeed, in its negative declaration, the Planning Board previously rejected such

perceived threats outright, and issued favorable findings concerning RUFCO's safety and

security plans through its use o12417 front desk coverage, and full-time staff.

158. RUPCO is, therefore, entitled to a judgment determining that it is entitled to

approval of its site plan and special use permit application and compelling the Planning Board to

approve its application.

V/HEREFORE, Petitioner respectfully requests that this Court enter judgment as follows:

(1) Annuiiing the determination of Respondent Planning Board of the City of

Kingston denying Petitioner's application for approval of its special use permit and site plan;

29
 (2) Directing Respondent Planning Board of the City of Kingston to grant Petitioner's

application for a special use permit and approval of its site pian;

(3) Awarding Petitioner the costs, disbursements and attorney's fees incurred in

connection with this proceeding; and

(4) Awarding Petitioner such other reiief as this Couri deems just, proper or

equitable.

Dated: September 17,2018 WHITEMAN OSTERMAN & HANNA LLP

Albany, New York

By:
John J
t Esq
One CommercePlaza
Albany, New York 12260
(s18) 487-7600
Att or ney s .for P e titi o ner

Michael A. Moriello, Esq.

RISELEY AND MOzuELLO, PLLC
111 Green Street
PO Box 4465
Kingston, New York 12402
(84s) 338-6603
Co-Counsel for P etitioner

30
 VERIFICATION

STATE OF NEW YORK )

) SS.
COUNTY OF ALBANY )

JOHN J. HENRY, ESQ., being duly swom, deposes and says as follows:

1. I am a member of Whiteman Osterman & HaruraLLP, attomeys for Petitioner in

this matter.

2. I have read the foregoing Verified Petition and the same is true to my own

knowledge, except those matters stated to be upon information and belief, and as to those

matters, I believe them to be true. The source of my belief is my review of the pertinent
documents and information provided by my client.

3. The reason why this verification is made by me and not Petitioner is that

Petitioner does not have its principal place of business within the County of Albany.

J J
Swom to before me this
77th day of September,2018

Notary
Carrle L'
New York
CountY
7A2A4
Commission Expires February
26,20..

4826-0s82-5 138,

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