SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER a: In the Matter of HILLARY HARVEY, OWEN HARVEY and DEANNA BAUM, Petitioners/Plaintiffs, In a Proceeding pursuant to Articles 78 and 30 of the CPLR -against- Index No.: ZONING BOARD OF APPEALS OF THE CITY OF KINGSTON; JOSEPH SAFFORD, IN HIS CAPACITY AS ZONING ENFORCEMENT OFFICER FOR THE CITY OF KINGSTON; and THE IRISH CULTURAL CENTER HUDSON VALLEY, INC., Respondents/Defendants. MEMORANDUM OF LAW IN SUPPORT OF HYBRID ARTICLE 78/DECLATORY JUDGMENT ACTION Dated: December 15, 2016 WARREN S. REPLANSKY, P.C. Attorney for Petitioners/Plaintiffs P.O. Box 838, 60 East Market Street Rhinebeck, New York 12572 845-876-7979PRELIMINARY STATEMENT. The Petitioners/Plaintiffs (hereinafter, at times, “Petitioners”) submit this Memorandum of Law in support of their Hybrid Article 78/Declaratory Judgment action. Petitioners seek an Order and Judgment pursuant to Articles 78 and 30 of the Civil Practice Law and Rules (CPLR): (i) the annulling and vacating the determination of the City of Kingston's Zoning Board of Appeals set forth in a Decision and Statement of Findings dated November 15, 2016 and, upon information and belief, filed in the office of the City of Kingston Clerk on or about November 16, 2016; (ii) declaring that the proposed Irish Cultural Center facility which the Irish Cultural Center Hudson Valley, Inc proposes to construct, maintain and use on its property located at 32 Abeel Street, in the City of Kingston, is not a use permitted pursuant to §405-19(B)(1)(a) or §405-19(C) of the City of Kingston Code; (iii) declaring that the determination of the City of Kingston Zoning Enforcement Officer Joseph Safford that the proposed Irish Cultural Center facility and its component uses are uses permitted by §405-19 of the City of Kingston Code is null and void; (iv) declaring the determination of the City of Kingston Zoning Board of Appeals null and void by virtue of the Zoning Board’s violation of the provisions of the New York State Open Meetings Law (Public Officers’ Law Article 7); (v) nullifying and vacating the determination of the determination of the Zoning Board of Appeals on the grounds that the ZBA violated the Petitioners’ due process rights by accepting evidence, and relying on that evidence for its decision after the close of the public hearing on Petitioners’ appeal without affording the Petitioners the opportunity toreview, rebut or comment on said documentation; (vi) nullifying and vacating the determination of the Zoning Board of Appeals on the grounds that the ZBA improperly interpreted the provisions of the City Zoning Code with regard to the issue of the requirement of “direct frontage” on West Strand Street as required by §405-19(B)(1)_ of the City Code and violated all applicable rules of statutory construction in making its determination; and (vii) directing the Zoning Enforcement Officer to notify the Planning Board that the application for the ICC community or cultural center may not include a restaurant, theater, dance or art studio, pub or other drinking establishment, exhibition gallery, recording studio, banquet facility or other components because its property located at 32 Abeel Street does not have direct frontage on West Strand Street as required by §405-19(B)(1) of the City Code, or, alternatively, (viii) an order directing the Zoning Enforcement Officer to notify the Planning Board that in the event it is determined that the 32 Abeel Street property has direct frontage on West Strand Street, as required by §405-19(B)(1) of the Zoning Code, that the proposed pub is not a use permitted pursuant to $405-19(C) of the Code; or, alternatively, (ix) that in the event it is determined that the pub is a permitted use pursuant to §405-19(C)(7) of the Code, that the said use requires the issuance of a special use permit by the Planning Board in accordance with the provisions of §405-32 of the City Code; (x) Awarding Petitioners costs and attorneys’ fees incurred in this action, after the conduct of a hearing, to determine such costs and attorneys’ fees pursuant to the provisions of §107(2) of the Public Officers Law; and (xi) granting such other and further relief as the Court deems just and proper.STATEMENT OF RELEVANT FACTS The prior relevant history of this matter including the proceeding before the Kingston Zoning Board of Appeals is fully set forth in the Petition/Complaint and will not be repeated herein. POINT I THE DECISION OF THE ZBA MUST BE DECLARED NULL AND VOID BECAUSE THE ZBA ACCEPTED, AND RELIED UPON, EVIDENCE PROVIDED TO THE BOARD AFTER THE CLOSE OF THE PUBLIC HEARING WITHOUT PROVIDING THE PETITIONERS, OR OTHER INTERESTED PARTIES, WITH THE OPPORTUNITY TO REVIEW, COMMENT OR DISPUTE THE SAME The record is clear that the ZBA opened the public hearing on Petitioners appeal on September 20, 2016 and accepted public comment including presentations made by the Petitioners and their legal counsel, and the attorney for the ICC. The public hearing was closed on that same date and no decision was made by the ZBA. (See, Exhibit J, p. 107). The ZBA next convened on October 18, 2016 and Petitioners’ appeal was on the agenda. The ZBA meeting Minutes reflect that the only public comment made by the Chairman to the ZBA was that the matter was being tabled until the ZBA received all of the requested information, No explanation was provided to the public as to what information the Chairman was referring to. The ZBA next convened on November 15, 2016 and Petitioners’ appeal was again on the agenda. The ZBA did not deliberate, or otherwise discuss the application and notified the public that it would not be taking any comments. (See Exhibit “L”)The ZBA Chairman then proceeded to read a Resolution which stated, in relevant part, that the ZBA had reviewed and considered all files and records maintained by the City of Kingston in connection with the 32 Abeel Street property, various maps, surveys, deeds and historic information relating to 32 Abeel Street and a letter dated November 2, 2016 from Christopher J. Zell, a professional licensed surveyor, and all documents submitted with that letter. The ZBA did not discuss or identify any of the records which it had reviewed, nor did the members discuss or reveal to the public the existence letter dated November 2, 2016 from Mr, Zell and its supporting documentation. The Resolution, which was passed by a 4-1 vote, affirmed the determination of the Zoning Enforcement Officer and remitted the matter to the Planning Board, recommending that in any approval for the ICC that the main entrance face West Strand so that “(t)he intent of §405-19(B)(1) be fully met.” (See, Exhibit “L”) Although a Statement of Findings and Decision was annexed to the Resolution, the Statement of Findings was not discussed at the meeting, nor were the contents of the same revealed to the public. The ZBA notified the public that a copy of the fall Decision, including the exhibits annexed thereto, would be available to the Petitioners and the public only after the same was filed in the Office of the City Clerk the next day. A fair reading of the Findings contained in the full Decision of the ZBA filed with the City Clerk on November 16, 2016 revealed that the ZBA Decision was made in almost total reliance upon Mr. Zell’s letter and his supporting documents which had apparently been provided to the ZBA sometime subsequent to the close of the public hearing on September 20, 2016.The Minutes of the public hearings and meetings at which this application was considered by the ZBA contain no record of any public discussion of the retention of the services of Mr. Zell by the ZBA, nor was there any vote recorded granting authority for the retention of Mr. Zell to advise the ZBA in this matter. At no time prior to the issuance of the ZBA’s Decision were the Petitioners, other members of the public or the Petitioners’ attomey advised of the fact that Mr. Zell had been retained by the ZBA to advise the Board as to the physical location of 32 Abeel Street's southern property boundary in relation to West Strand Street. Although, as discussed, infra, it does not appear that Mr. Zell’s findings and advice to the Board supported the Board’s determination, the Petitioners and other interested parties and members of the public were denied the opportunity to review, rebut or challenge the findings of Mr. Zell and his supporting documentation. The ZBA, in virtually total reliance on Mr. Zell’s letter, concluded that “32 Abeel Street has 34.1 feet of direct frontage along West Strand by virtue of the confluence of the Company Hill Path with West Strand Street along that distance.”, and that as a result, “the premises may elf of the uses permitted under §405-19B(1).” It is well accepted law in the State of New York that an administrative board’s acceptance and consideration of evidence after a public hearing has been closed without providing the applicant and all interested parties of an opportunity to be heard and to rebut, challenge, review and question the evidence violates the applicant's due process rights rendering the board’s decision arbitrary, capricious and illegal, requiring nullification of the decision of the Board. See, Hampshire Management Company v.Nadel, 241 AD2d 64 (2d Dept. 1997) I'v den’d 91 NY2d 8096 (1998); Stein v. Board of Appeals of the Town of Islip, 100 AD2d 590 (2d Dept. 1984); Cilla v. Minsi, 2002 WL 125122 (Sup. Ct., Suffolk Co. 2002); Mir. of Capital Real Estate Inc. v. Town Board of the Town of Charlton, 2003 WL 22244938 (Sup. Ct., Saratoga Co. 2003); see, also, Sunset Sanitation Service Corp. v. Board of Zoning of Appeals of the Town of Smithtown, 172 AD2d 755 (2d Dept. 1991). For these reasons, standing alone, the Petition must be granted and the determination of the ZBA nullified. POINT II THE ZBA’S DETERMINATION THAT 32 ABEEL STREET HAS 104.6 FEET OF FRONTAGE ON COMPANY HILL PATH AND 34.1 FEET OF DIRECT FRONTAGE ON WEST STRAND STREET IS ARBITRARY AND CAPRICIOUS AND NOT SUPPORTED IN THE RECORD ADDUCED BY THE ZBA It is well settled law that a ZBA’s determination must be based upon the record adduced at the public hearing and supported by substantial evidence in the record. See, Fusco v. Zoning Board of Appeals of the Town of Eastchester, 59 AD2d 700 (2d Dept. 1997); Mir. of Demisa Way v. Petito, 30 AD2d 663 (2d Dept. 1968). If a Board's determination is arbitrary, capricious and an abuse of discretion, the reviewing court may direct the Board to grant the application sought without remand. Se, DeSena v. Zoning Board of Appeals of the Village of Hempstead, 60 AD2d 601, afd 45 NY2d 105 (1978). In reviewing whether an administrative tribunal’s determination is rationally based on substantial evidence in the record, a court’s review is limited to the grounds invoked by the agency’s determination. See, Mtr. Trump-Equitable Fifth Avenue Co. v. Gliebman,57 NY2d 588 (1982); Mtr. of Consolidated Edison Company of NY v. Public Service Commission, 63 NY2d 424 (1984); Tilles v. Williams, 119 Ad2d 233 (2d Dept. 1968), A fundamental principle of administrative law limits judicial review of an administrative determination solely to the grounds invoked by the agency and if the grounds are insufficient or improper the Court is powerless to sanction the determination by substituting what it deems to be a more proper basis. See, Tilles v. Williams, 119 AD2d 233, 241 (2d Dept. 1968); Gonzalez v. Zoning Board of Appeals of the Town of Putnam Valley, 3 AD3d 496 (2d Dept. 2004). As a threshold matter, it should be noted that the ZBA in its Decision determined that the term “West Strand” as used in §405-19(B)(1) of the City Code actually referred to West Strand Street thereby impliedly rejecting the principal argument of ICC that the term “West Strand” in that section of the Code was intended to refer to the “West Strand Subarea”, rather than West Strand Street. (See, Exhibit “M”, Footnote “I” at page 2). As a result, it is unquestionable that ICC cannot avail itself of the uses permitted under §405- 19(B)(1) unless 32 Abeel Street has “direct frontage” on “West Strand Street”. The ZBA, in its Decision, stated that according to the ZEO, the “mapping revealed that approximately two-thirds of the southern boundary line of 32 Abeel Street abutted “Company Hill Path’ and the remaining one-third (consisted) of 33 plus or minus feet directly [abutting] West Strand [Street].” (emphasis added) The ZBA noted that in opposition to this testimony, Appellants pointed to the actual survey of 32 Abeel Street performed by ICC’s consultants (see, survey annexed to Pet. Exhibit “E") and itsproperty deed description which depicted and described the entirety of the southern boundary of 32 Abeel Street abutting Company Hill Path and not West Strand Street. The ZBA in its decision stated that in order to resolve this factual issue, the ZBA retained the services of Christopher J. Zell, P.L.S. to advise the ZBA on the physical location of 32 Abeel Street’s southerly property boundary. The ZBA noted that Mr. Zell supplied a letter to the ZBA dated November 2, 2016 with copies of documentation he purportedly relied upon for his opinions which stated that the southern boundary of 32 Abeel Street has 104.6 feet of frontage on Company Hill Path and that Company Hill Path has 34.1 feet of frontage on West Strand Street. In reliance on that letter, the ZBA found that “32 Abeel Street has 34.12 feet of direct frontage along West Strand (Street) by virtue of a confluence of Company Hill Path with West Strand Street along that distance.” ‘This was the essential factual determination of the ZBA. However, it is clear from an examination of Mr. Zell’s letter, and his supporting documentation, that the Board’s findings were not supported by Mr. Zell’s letter and supporting documentation. Mr. Zell, in his rather perfunctory letter, simply stated that based upon his examination of the deeds and maps attached to his decision: (i) the ICC has 104.6 feet of frontage on Company Hill Path; and (ii) Company Hill Path has 34.1 feet of frontage on West Strand Street. He did not opine that 32 Abeel Street had 34.12 feet of direct frontage along West Strand Street by virtue of any confluence of Company Hill Path with West Strand Street along that distance. This conclusion reached by the ZBA constituted either a misinterpretation of Mr. Zell’s letter, or an erroneous leap of faith.‘The essential conclusion reached by the ZBA that by virtue of Mr. Zell’s analysis, “32 Abeel Street has 34.1 feet of direct frontage along West Strand by virtue of the confluence of Company Hill Path with West Strand Street along that distance” is not supported by the documentation annexed to Mr. Zell’s letter or any other documentation in the record. Annexed to Mr. Zell’s letter is the Deed into Rela Banks for 29 West Strand Street, a parcel of land partially improved by a three-story historic structure located directly on West Strand Street adjacent to, and to the east of, the ICC property (see, Exhibit “C”). A fair reading of the metes and bounds description of the Banks Deed reveals that the Banks property has 14.90 feet of road frontage on the northerly side of Company Hill Path, From there the metes and bounds description of the Banks property clearly states that the southem boundary of the property continues east on the northerly side of West Strand Street for a distance of 32 feet to the point or place of beginning. The documents provided by Mr. Zell, at best, demonstrate that the Banks property, and not the ICC property, has approximately 32 feet of direct frontage on West Strand Street* and to the west of that frontage, 14.90 of frontage on Company Hill Path. There is no demonstration in any of the documents annexed to Mr. Zell’s letter that 32 Abeel Street *As do all of the historic lots and buildings on West Strand Street from the Banks property to the comer of West Strand Street and Broadway.has 34.1 feet, or any, direct frontage on West Strand Street. Accordingly, the ZBA, in making its determination on the basis of Mr. Zell’s letter and supporting documentation, clearly erred and the ZBA’s Decision was not supported by substantial evidence in the record and, as a result, is arbitrary and capricious and must be declared null and void by this Court. POINT III THE ZBA’S DECISION, INITS INTERPRETATION OF THE PROVISIONS OF §405-19(B)(1)(a) OF THE ZONING CODE WITH REGARD TO THE REQUIREMENT OF DIRECT FRONTAGE ON WEST STRAND STREET IS CLEARLY ARBITRARY AND CAPRICIOUS AND VIOLATIVE OF APPLICABLE RULES OF STATUTORY CONSTRUCTION Special counsel for the Zoning Board of Appeals in this matter, Larry Wolinsky, Esq., properly framed the essential issue to be determined by the ZBA in this appeal when he stated, on the record, as follows: “So by way of background, the reason we're here this evening is that on June 13” of this year the Zoning Enforcement Officer Mr. Safford issued a determination at the request of several property owners, I believe the Harveys and Ms. Baum, with respect to the applicability of a certain zoning provision to the Irish Cultural Center project, which I presume everyone sitting here tonight is generally familiar with. The specific section of the zoning law at issue is §405- 19, subsection (B)(1). And the issue before the Board tonight is an appeal of the determination that was made. That determination very simply found that 32 Abeel Street, which is the site of the Irish Cultural Center abuts West Strand. Why that’s a significant determination is because by virtue of the provision in the zoning law, whether it does or does not and also what that provision means is a function of the various uses that can be located on the property. So it is an 10important issue that needs to be resolved and that’s we're here this evening.” (Exhibit ‘I’, p. 6-7) Mr. Wolinsky also stated before the public hearing was opened as follows: “We're here on again a very narrow interpretation issue and we're only to take testimony with respect to that.” (emphasis added) ‘The responsibility of the ZBA on this appeal, as properly framed by its attomey, was to interpret the term “direct frontage” on West Strand Street as used in §405- 19(B)(1) of the Zoning Code. It is true that a zoning board, because of its presumed special expertise, will be afforded deference in its factual findings, which will only be annulled in a CPLR Article 78 proceeding if the determination is found to be arbitrary, capricious or illegal. See, PMS. Assets Ltd. v. Zoning Board of Appeals of the Village of Pleasantville, 98 NY24 683 (2002). However, a quite different standard applies to zoning code interpretations, as in the case at bar, because the “ultimate responsibility of interpreting the law is that of the court.” KMO-3361 Realty Associates v. Davies, 204 AD2d 547 (2d Dept.); See, also, Baker v. Town of Islip Zoning Board of Appeals, 20 AD3d 522, 523-524 (2d Dept. 2005). If the question before the Court involves “pure legal interpretation of statutory terms, deference by the Court to the ZBA is not required.” Toys R Us v. Silva, 89 NY2d 411 (1966); Raritan Development Corp. v. Silva, 91 NY2d 98, 102-103 (1997). Moreover, even if the Zoning Board is deemed to be accorded the deference associated with an agency applying its special expertise in a particular field, that deference only applies to “rational interpretations of statutory terms”. A determination Wby the agency that is irrational or runs counter to the clear wording of the statutory provision is given little weight. Raritan Development Corp. v. Silva, id. . In exercising its discretion, a zoning board does not have authority to alter or rewrite applicable laws, and “where the language of a statute as clear and unambiguous, courts must give effect to its plain meaning; words are not to be rejected as superfluous.” (emphasis added) Mir. of Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington, 97 NY2d 86 (2001); Rosner v, Metropolitan Property and Liability Insurance, 96 NY2d 415 (2001). It is a general rule in interpretation of statutes that the “legislative intent is primarily to be determined from the language used in act considering the language in its most natural and obvious sense.” McKinney’s Cons. Laws of New York, Book 1, Statutes, §232. In interpreting provisions of the Zoning Law, our courts have held that the law’s terms “should be given a fair and reasonable construction in light of the manifest intention of the legislative body, the objects sought to be obtain, the natural import of the words used in common and accepted usage, the setting in which they are employed and the general structure of the law as a whole.” Mir. of Application of United Civic Association and Neighbors Inc. v. Planning Board of the Town of Clifton Park, 153 Misc.2d 906, 910 (1992). See, also, Blum v. McGraw, 92 Misc.2d 781 (1977); Mir. Veysey v. Zoning Board of Appeals of the City of Glens Falls, 154 AD2d 819 (3d Dept. 1989). In making such determinations, zoning boards and reviewing courts are required to apply their own common sense and logic. See: City of New York v. Love Shack, 286 12AD2d 240, 242 (1" Dept. 2001). See, also, Hispanic Counseling Center Inc. v. Incorporated Village of Hempstead, 237 F.Supp.2d 284, 295 (E.D.N.Y. 2002). Moreover, as one court has opined: (he Board of Appeals is not vested with despotic and arbitrary powers; it must act intelligently and fairly within the domain of reason.” Application of Friend v. Feriola, 35 Misc.2d 250, 252 (Sup. Ct., Westchester Co. 1962). It is also well settled law that zoning and other laws should not be interpreted in a manner which achieves an absurd result. See. People v. Santi, 3NY3d 234, 242 (2004); Zappone v. Home Insurance Co., 55 NY2d 131 (1982). Neither should a zoning law be interpreted in a manner which strains credibility. See, Hispanic Counseling Center, Inc. v. Incorporated Village of Hempstead, supra at 296. The decisional rules of construction are consistent with the statutory rules of, construction set forth in McKinney’s Consolidated Laws. These rules state, in relevant part, as follows: (i) “The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of a legislature.” (McKinney's Statutes §92); (ii) “The legislative intent is to be ascertained from the words and language used and the statutory language is generally construed according to its natural and most obvious sense without resorting to an artificial or forced construction.” (McKinney's Statutes §94); (iii) “A basic consideration in the interpretation of a statute is the general spirit and purpose underlying its enactment and that construction is to be preferred which furthers the object, spirit and purpose of the statute.” (McKinney's Statutes, §96); (iv) “All parts of a statute must be harmonized with each other as well as with the general 13intent of the whole statute and effect and meaning if possible be given to the entire statute and every part and word thereof.” (McKinney's Statutes, §98); and (v) “General words used in a statute may receive a limited construction in order to avoid absurd, unjust or other objectionable results.” (McKinney’s Statutes, §113), The our Court of Appeals in Majewski v. Bodalbin-Perth Central School District, 91 NY2d 577, 582 (1998) stated as follows: “It is fundamental that a court in interpreting a statute should attempt to effectuate the intent of the legislature.” [citations omitted] “As the clearest indicate of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving affect to the plain meaning thereof. As we have stated: ‘In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and our courts have no right to add or take away from that meaning.’ “ [citations omitted] One would be hard-pressed to find a zoning board determination which violates as many of these basic statutory construction principles as have been violated by the ZBA decision in the instant case. The term “direct frontage” is not defined in the City’s zoning law. However, the term “frontage” is defined in §405-3 as the “linear distance along the street line.” (emphasis added). The term “front lot line” is defined in §405-3 of the Zoning Law as “the street line along the principal street on which the lot abuts” (emphasis added). The term “rear lot line” is defined by §405-3 of the Zoning Law as “the boundary opposite the 14front line, but should this be less than 10 feet in length or should the lot come to a point at the rear, the rear lot line shall be deemed to be a line parallel to the front line not less than 10 feet in length, lying wholly within the lot, and farthest from the front line.” Clearly, the drafters of the City Zoning Law intended for there to be, for every lot, a front line and a tear line, with the front line being the line of the lot fronting on the “principal” street on which the lot abuts. There may be instances in which a lot also abuts a street at its rear lot line but the front lot line would always have to be the line of the lot abutting the principal street adjacent to that lot. The term “street” is defined in §305-3 of the City Zoning Code as “any public street, court, place, square, lane or way set aside or used as a right-of-way, which affords legal access to the abutting property.” (emphasis supplied) It is clear by these definitions standing alone that the front line of 32 Abeel Street is, in fact, that portion of the lot which fronts along 32 Abeel Street. The empirical evidence supports no other conclusion. 32 Abeel Street is a City maintained street designed and utilized for vehicular traffic and for parking of motor vehicles. It is the street which provides both actual, and legal access to the ICC property, The ICC property's legal address is 32 Abeel Street, and, as evidenced by the testimony given at the public hearing, the houses along Abeel Street all front on, and face, Abeel Street. By contrast, Company Hill Path is not a public street, designed, or utilized, for vehicular traffic or parking. It provides no legal, or actual street access to the 32 Abeel Street property. It is, at best, a gravel path which can only be used by the public for 15walking. There is no current (or historical), improved entrance or access point from 32 Abeel Street through the rear of the lot to Company Hill Path. The fact that ICC has chosen to declare that the actual rear of the building which they propose to construct on 32 Abeel Street is the front of the building, does not change the reality of the configuration of the 32 Abeel Street lot. It is indisputable that the frontage of this lot, regardless of how ICC intends to configure the building on the same, is that line along 32 Abeel Street. For these reasons standing alone, Company Hill Path is not the “principal street” on which the 32 Abeel Street property abuts and the lot’s southern boundary cannot be deemed to be the front lot line, nor can the southern boundary be deemed to be the frontage of the lot. Moreover, in order to qualify for the additional uses listed in §405-19(B)(1)(a) of, the Zoning Code, the drafters of the statute have required that the lot not only have “frontage” on either Broadway or West Strand Street, but that, in addition, the frontage must be “direct” frontage. The term “direct” is not defined in the Zoning Law. However, as noted, supra, §405-2 of the Zoning Code provides, in relevant part, that words not specifically defined shall have their ordinary dictionary meaning as in Webster's New Intemational Dictionary. Applicable Webster dictionary definitions were provided to the Zoning Enforcement Officer in the Applicants’ May 6, 2016 letter and defined the term “direct” as follows: 16“1, Straight; proceeding from one point to another in time or space without deviation or interruption; not crooked, oblique, reflected, refracted or circuitous; leading by the short or shortest way to a point or end; as a direct route; direct means, direct rays. Immediate; marked by the absence of an intervening agency or influence; making contact or affected without an intermediary; as, to have direct knowledge; to make direct attempt ona man’s life; hence not deputed; personal as to assume direct responsibility. In a direct way: (a): From point to point without deviation: by the short or shortest way.” (emphasis added) The intent of the §405-19(B)(1) is clear an unequivocal. The drafters of §405-19 of the Code intended that only those properties along the limited sections of Broadway and West Strand Street, which directly front on those streets are permitted to have the additional uses set forth in §405-19(b)(1)(a) of the Code. Inexplicably, and in clear violation of all accepted rules of statutory construction, the ZBA disregarded the requirement that the property's frontage be “direct”, finding the word “direct” to be superfluous. (See, ZBA Decision Footnote 3”). In so doing, the ZBA committed reversible error. As stated, supra, our courts have consistently held that words in a statute are not to be disregarded as superfluous. If the words are not defined, their definitions are provided by application of applicable dictionary definitions. The term “direct frontage” can mean nothing other than that the frontage must be straight, proceeding from point to point without interruption or deviation and by the shortest way For example, the Banks property, and all of the properties along West Strand Street to the intersection of West 17Strand Street and Broadway, directly front on West Strand Street.. In fact, although inconsistent with its determination, the ZBA, in its third footnote, appeared to be making such a finding by stating that the “frontage can mean nothing more than such frontage is directly on the street line.” (emphasis added). The decisional law with regard to the interpretation of the requirements of Town Law §280-are instructive. That statute, in relevant part, prohibits the erection of a residential structure on a lot under certain circumstances, unless the lot “directly abuts” a public highway. The New York courts in interpreting the requirements of that statute have held that the term “directly abuts” was intended to supply emphasis to the legislative intent to limit the issuance of building permits to cases in which the properties have direct access on a public road, rather than access provided by an easement, right-of-way or other indirect means. See, Mir. of Indelicato v. Town of Lloyd, 34 AD3d 1056 (3d Dept. 2006); Mir. of DeLoe v. Payne, 49 AD2d 572 app’l dism’d 38 NY2d 822 (1875). Ina similar fashion, the drafters of the City Code have utilized the term “direct” in other instances to provide additional requirements for certain uses. For example, §405-25 (RF-R Rondout Creek and RF-H Hudson River Districts) provides in subsection “(C)(1)” that "(t)he Planning Board shall have the authority to waive the requirement to provide meaningful public access when the property does not have direct water frontage”. §398-1 Definitions of the City Code relating to waterfront facilities defines a “Public Waterfront Facility” as any parcel of land owned or leased by the City of Kingston fronting on a navigable body of water, which allows “direct access to said body of water” through certain means. Section 405-37 Supplementary Yard and Bulk 18Regulations, in its requirements for street access states that “(n)o building shall be erected on a lot that does not have direct access to a public street or indirect access to a public street via private street or way approved by the Planning Board.” Clearly, the drafters of the Code, in §405-19(B)(1), intended to differentiate between the concept of “direct frontage on a public street” and “indirect frontage on a public street”.. The Zoning Board’s decision when read in a light most favorable to the Board is that 32 Abeel Street has “indirect frontage” rather than “direct frontage” by virtue of the fact that the southern boundary of the parcel has frontage on Company Hill Path which, at some point, has access to West Strand Street**. Company Hill Path is not a public street improved for vehicular traffic. It is, at best, an unimproved gravel walking path. Those seeking to access what ICC claims to be the front entrance of the facility on 32 Abeel Street’s southern boundary would have to enter Company Hill Path at its southeasterly terminus, walk up Company Hill Path and then enter the property through an entryway in the stone wall to be built at the western terminus of the property. It simply defies logic and common sense that this could be properly characterized as the direct frontage and direct access contemplated by §405-19(B)(1) of the Zoning Code. ‘The ZBA’s Decision is not salvaged by its ludicrous suggestion that Company Hill Path and the intervening City property is analogous to a sidewalk which provides direct frontage of the property’s southern boundary to West Strand Street, Company Hill Path **IL is noteworthy that the exact point of such confluence is not identified in Mr. Zell’s letter.is clearly not a sidewalk in any way similar to the bluestone sidewalks that adjoin the properties on West Strand Street from the Banks’ property to Broadway, Those sidewalks obviously directly front and provide direct vehicular and pedestrian lateral access from the street to the buildings fronting on West Strand Street. ‘That portion of the City property lying be between Company Hill Path and West Strand Street is much wider, impassable and doesnot provide direct access from the southern portion of the 32 Abeel Street property to West Strand Street as contemplated by the requirements of §405- 19(B)(1) of the Code. For all of these reasons, the determination of the Zoning Board of Appeals must be declared arbitrary, capricious, irrational and unreasonable and it must be vacated and declared null and void. POINT IV THE OPEN MEETINGS LAW REQUIRES THAT “(E)VERY MEETING OF A PUBLIC BODY SHALL BE OPEN TO THE GENERAL PUBLIC” (PUBLIC OFFICERS LAW §103[A] The Minutes of the meetings and public hearings conducted in conjunction with this application reveal that there was never any discussion or deliberation conducted by the ZBA at a public session prior to the adoption of the ZBA’s November 15, 2016 Decision. The findings of the Zoning Board which supported its decision were not discussed or even read, at the November 15, 2016 meeting, or at any prior public meeting of the Zoning Board. The Resolution and Decision and Findings of the Zoning Board mysteriously appeared at the November 15, 2016 meeting. It was never revealed to the 20public who drafted the Decision or how the ZBA’s findings came to pass. Nor was there any deliberation or discu: ion of the findings conducted by the Board at a public meeting prior to the issuance of its Decision. It is well-settled law that a zoning board of appeals may not deliberate in private sessions not open to the public. See, Mir. of the Application of Gold v. The Zoning Board of Appeals of the Town of Oyster Bay, 28 Misc.2d 1219(A) (Sup. Ct. Nassau Co., 2010). See, also, Advisory Opinion of the State of New York Department of State Committee on Open Government dated January 8, 1999. Al of this leads to the unmistakable conclusion that the Decision and Findings of, the ZBA were discussed and deliberated by the ZBA members at one or more private sessions not open to the public in clear and egregious violation of the requirements of the Open Meetings Law. Public Officers §107 provides, in relevant part, that in any action brought pursuant to an Article 78 proceeding or declaratory judgment action by an aggrieved person seeking to enforce the provisions of the Open Meetings Law “(i)f a court determines that a public body failed to comply with this article, the court shall have power in its discretion upon good cause, to declare that the public body violated this article and/or declare that the action taken in relation to such violation void, in whole or part, without prejudice to reconsideration and compliance with this article.” (http//www.documents.dos.newyork.gov/coog/otex/(029282.htm). It is clear that the violations by the ZBA were egregious and good cause has been shown for issuance of an order declaring the decision and findings void. 24§107(2) of the Open Meetings Law also provides, in relevant part, that “in any proceeding brought pursuant to this section, costs and reasonable attomeys" fees may be awarded by the Court in its discretion to the successful party” Accordingly, it is respectfully requested that an award of costs and reasonable attomeys’ fees be awarded by this Court after the conduct of a hearing to determine the amount thereof to be awarded. See, Mir. of the Application of Gold v, The Zoning Board of Appeals of the Town of Oyster Bay, supra POINT V THE DETERMINATION OF THE ZBA MUST BE ANNULLED BECAUSE THE ZBA MEMBERS BASED THEIR DECISION, IN PART, UPON THEIR, PERSONAL KNOWLEDGE AND VARIOUS MAPS, SURVEYS, DEEDS AND HISTORIC INFORMATION RELATING TO THE PREMISES AND ITS SURROUNDS THAT WERE NOT IDENTIFIED OR PLACED ON THE RECORD The Decision of the ZBA states that is was based, in part, upon the ZBA’s personal knowledge of the subject premises and its surrounds, and various maps, surveys, deeds and historic information relating to the premises and to is surrounds, However, the Board did not either at a public session, or in its Decision, identify those maps, surveys, deeds and historic documents relied upon, nor did it set forth on the record the personal knowledge of the ZBA members concerning the subject premises and its surrounds on which it relied upon for its Decision. The decisional law is clear that if personal knowledge, or facts or documents outside the hearing, are relied upon by the ZBA in making its determination, they must be disclosed in the record. See, Community Synagogue v. Bates, 1 NY2d 445 (1956); Fordham Manor Reformed Church v. Walsh, 22244 NY 280 (1927); Stein v. Board of Appeals of the Town of Islip, 100 AD2d 590 (2d Dept. 1984); see, also, Varley v. Zoning Board of Appeals of the City of Saratoga Springs, 131 AD2d 905 (3d Dept. 1987); Galvin v. Murphy, 11 AD2d 900 (4 Dept. 1960). The failure of the ZBA to do so requires nullification of tis decision. POINT VI THE ZBA FAILED TO ADDRESS THE ISSUE RAISED BY THE APPLICANTS. THAT THE PUB WHICH IS PROPOSED TO BE OPERATED AS A COMPONENT OF THE ICC FACILITY IS EITHER PROHIBITED BY §405- 19(B)(1)(a) OR REQUIRES THE ISSUANCE OF A SPECIAL USE PERMIT ICC proposes, as part of this facility, to maintain a Pub open to the public at which alcoholic beverages are to be sold. However, a pub or drinking establishment is not one of the prescribed uses set forth in §405-19(B)(1)(a). This issue was raised by the Petitioners in their appeal to the ZBA, but was not addressed by it’s the ZBA in its Decision. Therefore, it must be presumed that this issue was decided adversely by the ZBA to the Petitioners. In the event this Court determines that 32 Abeel Street is within the West Strand area in that it has direct frontage on West Strand Street, as required by §405-19(B0(1), this Court must issue a declaration that a pub may not be established on that property because it is not one of the specified uses allowed by §405-19(B)(I). A pub, or drinking establishment, may only be established at 32 Abeel Street if this Court determines that the property does not have direct frontage on West Strand Street as required by §405-19(B)(1) because §405-19(C) provides, in relevant part, that a drinking establishment (and, therefore, a pub) is a permitted use on property which is outside the West Strand Area as defined by §405-19(B)(1). In that event, a special permit 23application would have to be made for the establishment of a pub on that property and there is no record that the Respondents have ever applied for a special use permit to the Planning Board for a pub. CONCLUSION For all the foregoing reasons, Petitioners respectfully request that the relief sought in the Petition/Complaint be granted in its entirety. DATED: Rhinebeck, New York December 15, 2016 Respectfully submitted, WARREN S. REPLANSKY, P.C. By: = WARREN S. REPLANSKY Attorney for Petitioners/Plaintiffs P.O, Box 838, 60 East Market Street Rhinebeck, NY 12572 (845) 876-7979 4