Article 78 Filings

TO SAVE OUR ZONING CODE

The latest action appears at the top.

March 22, 2005

________________________________________________________

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY

In the Matter of

________________________________________________________

KINDERHOOK NEIGHBORS FOR GOOD GROWTH, INC.,

and MADELINE R. ZINKE

Petitioners, Index #6961-04

RJI #01-04-080020

For a Judgment pursuant to Article 78 of CPLR Assigned Judge:

Hon. Thomas J. McNamara

-against-

TOWN OF KINDERHOOK ZONING BOARD OF APPEALS;

THE WIDEWATERS GROUP, INC. and WIDEWATERS

KINDERHOOK CO., LLC.

Respondents.

______________________________________________________________

MEMORANDUM OF LAW

IN SUPPORT OF PETITIONERS’

MOTION FOR A PRELIMINARY INJUNCTION

______________________________________________________________

YOUNG, SOMMER, WARD, RITZENBERG, BAKER & MOORE, LLC

Attorneys for Petitioner

Executive Woods

5 Palisades Drive

Albany, NY 12205

Dated: March 22, 2004

by: Jeffrey S. Baker, Esq.

James A. Muscato II, Esq.

TABLE OF CONTENTS

PAGE

Table of Authority...... ii

Preliminary Statement.... 2

Statement of Facts........... 2

Argument

PETITIONERS HAVE SATISFIED THE ELEMENTS

FOR GRANTING A PRELIMINARY INJUNCTION

PENDING THE OUTCOME OF THIS PROCEEDING . . . . . . 5

CONCLUSION.............. 12

(i)

TABLE OF AUTHORITIES

PAGE

Center Square Association, Inc. v. Board of Building, Zoning and

Housing Appeals of the City of Albany, 195 A.D.2d 684,

684 (3rd Dept. 1993)........ 11

Center Square Association, et al. v. City of Albany Board of Zoning Appeals,

et al., 9 A.D.3d 651 (3rd Dept. 2004).............. ............... 3, 8

Diana v. City of Amsterdam Zoning Board of Appeals... 7

Dreikausen v. Zoning Bd. of Appeals of the City of Long Beach,

98 N.Y.2d 165, 172 (2002) ...... 11

Ferruggia v. Zoning Board of Appeals of Town of Warwick, 233 A.D.2d 505 7

Golden v. Steam Heat, Inc., 216 A.D.2d 440 (2nd Dept. 1995)........ 11

Hanson v. Valenty, 198 A.D.2d 598 (3rd Dept. 1993)........ 6

King v. Ronik, 237 A.D.2d 358 (2nd Dept. 1997).......... 7

Kingsley v. Bennet, 185 A.D.2d 814 (2nd Dept 1992)...... 7, 8

Lesron Junior, Inc. v. Feinberg, 13 A.D.2d 90, 95 (1st Dept. 1961)........ 11

Little Joseph’s Realty, Inc. v. Town of Babylon, 41 N.Y.2d 738, 744 (1997) 11

Magee v. Town of Stony Point Zoning Bd. of Appeals, N.Y.L.J.,

May 10, 2000, p.35, col. 3 (Sup. Ct. Rockland Co. 2000).......... 6

Matter of Citizens Savings Bank v. Board of Zoning Appeal of Village of Lansing,

224 A.D.2d 797 (3rd Dept. 1996).......... 7

Matter of First National Bank of Downsville v. City of Albany Board of Zoning Appeals,

216 A.D.2d, 680 (3rd Dept. 1995).......... 7

Matter of Save the Pine Bush v. Zoning Bd. of Appeals of Town of Guilderland,

220 A.D.2d 90 (3rd Dept1996) ................... 7

McGrath v. Town Board of the Town of North Greenbush,

254 A.D.2d 614 (3rd Dept. 1998)......... 6

Vreeland v. Zoning Bd. of Appeals, 175 A.D.2d 552, 553 (3rd Dept. 1991).......... 6

(ii)

PRELIMINARY STATEMENT

Petitioners Kinderhook Neighbors for Good Growth (“KNGG”) and Madeline Zinke (collectively referred to as “Petitioners”), submit this Memorandum of Law in support of their motion for a preliminary injunction pursuant to CPLR §§ 6301 et seq. pending the outcome of this proceeding. The Town of Kinderhook Zoning Board of Appeals (referred to as the “Town” or “ZBA”) arbitrarily and capriciously granted Respondents, the Widewaters Group, Inc. and Widewaters Kinderhook Co., LLC (collectively referred to as “Widewaters”), an area variance for the proposed Widewaters Commons in the Town of Kinderhook.

Widewaters has already commenced construction of the retail stores at issue in this proceeding and has announced plans that construction of the Hannaford building will commence in the near future. In fact, Widewaters, its employees, agents or subcontractors, have begun construction and installation of the building footprint. To the extent that Widewaters has maintained that the roof design at issue in this proceeding will alter the design of the footprint, Petitioners have made this motion in order to preserve their rights and prevent Widewaters from later arguing that this proceeding is moot due to the construction of the footprint. Petitioners are willing to withdraw this motion if Widewaters will agree not to later argue that this proceeding is moot or that the footprint cannot be later altered despite the Court finding in Petitioners’ favor.

As demonstrated throughout this Memorandum of Law, Petitioners have shown that they are entitled to a preliminary injunction because (1) of their likelihood of success on the merits; (2) the prospect of irreparable injury if the injunction is not granted; and (3) a balance of equities is in Petitioners’ favor.

STATEMENT OF FACTS

Widewaters is the developer of a project known as Widewaters Commons located on a 19 acre parcel at the intersection of New York State Routes 9 and 9H in the Town of Kinderhook. Widewaters has obtained a site plan approval for Widewaters Commons from the Town of Kinderhook Planning Board (“Planning Board”) for a shopping center plaza which consists of an approximately 47,192 sq. ft. Hannaford food market (including a 496 sq. ft. vestibule and exit area), an attached 15,000 sq. ft. building, (collectively the Hannaford and attached building are referred to as “buildings 4 and 4A”), a 10,000 sq. ft. building in the northwest corner of the site and an approximately 3,140 sq. ft. restaurant on the northeast corner of the site. (See Affidavit of Jeffrey S. Baker, Esq., dated March 21, 2004, attached hereto and referred to as “Baker Aff.”).

Widewaters applied for an area variance from the ZBA to build a flat roof for buildings 4 and 4A instead of the peak roof mandated by the Kinderhook Zoning Code. On September 23, 2004 the ZBA adopted a resolution granting the requested area variance. (See Baker Aff. par. 5) A document purporting to be the September 23rd resolution was filed with the Kinderhook Town Clerk on October 1, 2004.

KNGG and its members will be adversely effected by the ZBA’s decision which cavalierly disregards the design standards of the zoning code. Members of KNGG own property and/or reside adjacent to or in close proximity to the Widewaters Commons site and will view the project site from their property. (See Baker Aff. par. 8). KNGG’s members were involved in the revision and adoption of the Town of Kinderhook Zoning Code in 2001 which developed new design standards intended to control future development in the town and to assure that such development created a more pleasing visual environment and aesthetic standard that would promote a more consistent community character. The ZBA’s decision in this case undermines the zoning code and creates a precedent that future large scale projects will not be held to the zoning code design standards. By allowing the first project of this size to vary from the design standards set under the new Town Code, the decision by the ZBA eviscerates the vision for the character of the Town set forth in the Comprehensive Plan.

As described in detail in the Verified Petition submitted to the Court November 1, 2004, Widewaters initiated seeking approvals for Widewaters Commons in November 2001 when it submitted an application for site plan approval to the Planning Board. (See Baker Aff. 11). In December 2001 the Kinderhook Town Board adopted a new Zoning Code which contains significant changes from the earlier code, specifically enacting a number of design standards for all new development. (See Baker Aff. par. 11 ). The new zoning code was adopted to implement the Town of Kinderhook Comprehensive Plan which had been adopted by the Town Board in August 2000.

A major change included in the New Zoning Code was the adoption of Design Standards, Zoning Code § 81-31. The purpose of the design standards is “to protect and enhance the rural and historic character of Kinderhook”. Zoning Code § 81-31(A).

On July 2, 2003, the Planning Board accepted a SEIS prepared by Widewaters which stated that it would be seeking a variance from the ZBA from the Design Standards of the New Zoning Code, specifically § 81-39(H)(4)(e) which prohibits mansard, flat or shed roofs. (See Baker Aff. par 13). On November 17, 2003 the ZBA held a public hearing on Widewaters’ application for an area variance from the design standards for the construction of a flat roof.[1] As part of its application, Widewaters claimed that the only roof design compliant with the zoning code would be of an excessive size and scale out of proportion to the area. (See Baker Aff. par. 13). The shear exaggeration and absurdity of the roof presented by Widewaters is evidence that it never contemplated reasonable alternatives and has ignored what KNGG has shown to be Code compliant alternatives. At the public hearing, KNGG presented letters and testimony from, among others, two registered architects that demonstrated that compliant roof designs were easily achievable and that Widewaters’ representation of an over-sized compliant roof was a self-serving unrealistically worst case scenario. In fact, all along, the Board has arbitrarily given more weight to Widewaters disingenuous claims regarding the roof without any evidence substantiating Widewaters claim and despite being directly refuted by KNGG’s experts. KNGG, through its attorneys and experts also noted that Widewaters had failed to provide any supporting documentation regarding the difficulty or cost associated with constructing a code compliant building.

Widewaters made no further submission to the ZBA until July 1, 2004 when it submitted a new letter to the ZBA which responded, in part to KNGG’s public comments from November 2003. (See Baker Aff. par. 14). KNGG’s architect Alvin K. Knoll again submitted an opinion letter to the ZBA noting that a Code compliant alternative was possible despite Widewaters’ contentions to the contrary. The design submitted by KNGG was compliant with the New Code and proved that a reasonable Code compliant alternative existed. As public hearings continued throughout the summer, Mr. Knoll agreed to revise his submission consistent with the Board’s comments regarding the aesthetics of KNGG’s alternative. (See Baker Aff. par. 15).

At the September 2, 2004 continuation of the ZBA hearing, the engineering firm retained by the Town to review the project (“Spectra Engineering”) presented a letter commenting upon Mr. Knoll’s design. (See Baker Aff. par. 16). Also at that hearing Spectra discussed its questions with Mr. Knoll and in testimony to the ZBA at the hearing, Spectra clarified its position that it saw no inherent engineering or safety problems with Mr. Knoll’s design. [2]

On September 2, 2004 the ZBA voted to close the public hearing and shortly thereafter voted to adjourn the ZBA meeting. (See Baker Aff. par. 17). After a post-meeting discussion with Widewaters, the next day, September 3, 2004, the ZBA published a notice that the ZBA would hold a “special hearing pursuant to Section 276 of the Town Law” on Widewaters’ application. See Baker Aff. par. 17). Relying upon the ZBA’s notice of a “special hearing” and understanding the word “hearing” as a legal term of art as opposed to a “special meeting”, KNGG submitted additional information from its architect which responded to some additional ZBA members’ concerns. The revised design showed that a smaller cupola could be constructed that addressed all of the ZBA’s remaining concerns with the KNGG design. In addition, KNGG presented multiple versions of the design further showing that many Code compliant alternatives were available. At the “special hearing” on September 23rd, the ZBA ignored the fact that it had been noticed as a special hearing and ruled that the record had been closed, that further comment would not be allowed and ignored the new information demonstrating that a compliant design was possible. (See Baker Aff. par. 18).

Upon a motion by ZBA member Kelly Nicoletta, the ZBA approved the requested area variance without clearly identifying the basis of its decision. The motion by Ms. Nicoletta did not reference the criteria in the New Zoning Code but made an irrelevant reference to the elements of the seal of the Town of Kinderhook, asserting that those were the controlling standards and not the zoning code. (See Baker Aff. par. 19). After passing the resolution proffered by Ms. Nicoletta by a 3-2 vote, the ZBA then proceeded to adopt separate findings supposedly supporting its determination. The Findings Statement contains a number of errors and mischaracterizations and statements without any support in the record.

On October 1, 2004 the Chairman of the ZBA signed and filed with the Town Clerk a completely different resolution than the one made by Ms. Nicoletta and approved by the ZBA on September 23rd. (See Baker Aff. par. 20). The October 1st Resolution omitted the reasons proffered by Ms. Nicoletta and changed the order of the ZBA’s resolutions on September 23rd, wherein it had adopted Section 267 Findings before it adopted SEQRA Findings.

From the beginning of this process, it has been clear that the Board has arbitrarily and capriciously sided with the applicant and has unfairly placed the burden on Petitioner to refute the outrageous claims regarding the roof design.

Because of the arbitrary and capricious nature of the Board’s decision, this Court should annul the determination to grant the area variance. The record is insufficient to support the grant of the variance, and thus, it must be annulled. As such, the Court should grant Petitioners’ motion for a preliminary injunction to prevent Widewaters construction of the project and mooting this proceeding.

ARGUMENT

PETITIONERS HAVE SATISFIED THE ELEMENTS FOR GRANTING A PRELIMINARY INJUNCTION PENDING THE OUTCOME OF THIS PROCEEDING.

In order to be entitled to a preliminary injunction, Petitioners must show that immediate and irreparable injury, loss or damage will result unless Widewaters is restrained before a hearing can be had on the motion for a preliminary injunction. CPLR § 6313(a). A preliminary injunction is appropriate where the moving party shows (1) a likelihood of success on the merits; (2) the prospect of irreparable injury if the injunction is not granted; and (3) the balance of equities is in the moving parties’ favor. See McGrath v. Town Board of the Town of North Greenbush, 254 A.D.2d 614, 616 (3rd Dept. 1998) lv. to app. denied, 93 N.Y.2d 803 (1999). As demonstrated below, Petitioners have met their burden.

1) Because the ZBA Issued the Variance in Violation of the Town of Kinderhook Code and the Town Law, Petitioners should prevail on the merits of this proceeding.

Notwithstanding the standard of judicial deference to which ZBA determinations are entitled, where, as here, the ZBA issues an area variance without a basis in the factual record, the area variance must fail. See Hanson v. Valenty, 198 A.D.2d 598, 598-99 (3rd Dept. 1993). The Supreme Court’s role in reviewing the ZBA’s determinations is limited to whether the decision to grant the area variance for the Widewaters Commons shopping plaza roof design has a rational basis and is supported by substantial evidence. This necessarily requires the zoning board to set forth in its determination the evidence it relied upon in reaching its conclusions. See Id. In Hanson, the board’s determination was entirely conclusory with no intent to correlate the evidence in the record to the standard set forth in the zoning ordinance, or to indicate what evidence the board acted upon in reaching its conclusion.

Here, the Findings Statement issued by the ZBA lacks a rationale explanation of why the ZBA chose to grant the requested variance over the objections of the Petitioner. It is clear throughout the record that the ZBA illegally deferred to the applicant and placed greater weight to the evidence presented by the applicant contrary to the Town Law. Petitioner’s concede that the Court may not substitute its judgement for that of the ZBA’s, however, where, as here, the ZBA fails to provide any reasoning for its decision and clearly misapplies and miscomprehends the facts and evidence presented to it, then its decision must be rejected and annulled.

In reviewing an area variance, a zoning board of appeals “shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community” that would be caused by the granting of the variance. A decision by a zoning board of appeals which fails to adhere to this standard and this weighing analysis must be reversed. When, as here, the Board fails to properly employ the balancing test and its findings with respect to the relevant criteria are not substantiated by the record, the Court must invalidate the Board’s findings. See Fusco v. Russell, 283 A.D.2d 936 (4th Dept. 2001). Even more egregiously, when the board bases its findings on evidence solely unrelated to standard in Town Law § 267-b, the determination by the board must be annulled. Here, the record indicates the Board considered and relied upon the type of buildings depicted in the Town seal in determining that the building proposed by Widewaters fits in the “character of the community” in violation of the standards in both the Town Code and Town Law §267.

Moreover, besides a general recital of the standards and criteria in Town Law § 267-b, the ZBA failed to balance criteria necessary to grant an area variance and the record reflects that the ZBA’s findings are not substantiated by the record. See Korean Evangelical Church of Long Island v. Board of Appeals of the Village of Westbury, N.Y.L.J., Feb. 28, 1996, p. 31 col. 2 (Sup. Ct. Nassau Co. 1996)(Court annulled the board’s decision where the record was devoid of evidence to support the board’s mechanical recitation of the statutory standards.). The ZBA completely ignored the statements of its own engineer (Spectra) that the alternative presented could be structurally sound and a safe alternative. [3] Contrary to Spectra’s comments at the public hearing, the ZBA stated in its Findings Statement that Spectra found the alternative “unacceptable.” See Findings Statement by Town of Kinderhook ZBA, issued September 30, 2004.

In fact, in this case, the ZBA reversed the burden imposed on applicants seeking a variance to show that the variance is warranted and instead imposed the burden on those opposed to the variance to prove it should not be granted. The ZBA’s Findings Statements clearly show a failure by the Board to weigh the detriment to the public of adopting the applicant’s roof design. In fact, the ZBA’s finding that strict compliance with the Town Code would create adverse visual impacts is wholly unsupported by the record. Absent specific authorization which provides sufficient guidance to prevent arbitrary actions, a zoning board of appeals may not grant an area variance solely for aesthetic reasons. Here the Zoning Board failed to:

a) consider viable alternatives and the minimum variance needed;

b) consider the affects on the community character by granting the variance; and

c) failed to consider that the hardship on Widewaters is entirely self-created.

As such, the Petitioners’ have established that the Court must reverse the determination by the ZBA and thus, is likely to win on the merits.

2) The Appellants will be Irreparably Injured if an Injunction is not Issued.

If the Court does not enjoin Widewaters from constructing buildings 4 and 4a, Petitioners will be irreparably harmed. By issuing the preliminary injunction, the Court will maintain the status quo pending a determination on the merits. If the Court does not issue an injunction, Widewaters will continue to construct the project and then argue that the proceeding should be dismissed because it is moot. This harm is imminent, not remote or speculative. See Golden v. Steam Heat, Inc., 216 A.D.2d 440, 442 (2nd Dept. 1995).

“It is settled beyond doubt that an action for injunctive relief is the appropriate remedy of an aggrieved property owner who seeks to bar the erection of a structure on adjoining or nearby premises in violation of express zoning regulations.” Little Joseph’s Realty, Inc. v. Town of Babylon , 41 N.Y.2d 738, 744 (1997) quoting Lesron Junior, Inc. v. Feinberg, 13 A.D.2d 90, 95 (1st Dept. 1961). In such cases, failure to seek a preliminary injunction to maintain the status quo pending the appeal process could render moot Appellants’ claims due to laches. See Dreikausen v. Zoning Bd. of Appeals of the City of Long Beach, 98 N.Y.2d 165, 172 (2002). Because the completion of the work during the pendency of the proceeding may render the controversy moot and where appellants fail to seek injunctive relief during the pendency of the proceeding, the proceeding may be dismissed. See Center Square Association, Inc. v. Board of Building, Zoning and Housing Appeals of the City of Albany, 195 A.D.2d 684, 684 (3rd Dept. 1993). The law is clear that if Petitioners fail to enjoin Widewaters from constructing buildings 4 and 4a and Widewaters substantially completes the construction of the project, Petitioners will not be able to stop the project even if this Court determines that the ZBA acted arbitrarily and capriciously. As such, Petitioners will be irreparably harmed if an injunction is not issued.

3) The Equities Weigh in Favor of Petitioners

Given the irreparable injury that will result if this illegal project is permitted to go forward, the balance of equities weigh in Petitioners’ favor. Widewaters has been pursuing the approvals necessary to construct this project and the related alterations and installation of a roundabout on Route 9 since 2001. An additional delay pending the outcome of this proceeding will not prejudice Widewaters. First, rather than address the merits of this case, Widewaters made a motion to dismiss which this Court properly found to be meritless. Nevertheless, Widewaters has appealed this Court’s decision regarding standing to the Third Department. The minimal prejudice that may result from a delay is minor compared to the irreparable injury that will result if the Court denies Petitioners’ motion for an injunction but later issues a decision in their favor. As noted above, if the Court does not grant an injunction and Widewaters continues to move forward with the construction of the project, there is the risk that Widewaters will substantially complete the construction, thus rendering this proceeding moot.

CONCLUSION

For all the reasons cited above, Petitioners respectfully request that this Court issue an injunction pending the outcome of this proceeding.

Dated: March 22, 2004

YOUNG, SOMMER, WARD, RITZENBERG, BAKER & MOORE, LLC

By:__________________________

Jeffrey S. Baker, Esq.

Attorney for the Appellants

Executive Woods

5 Palisades Drive

Albany NY 12205

G:\WPDATA\Kinderhook Neighbors\050321 MOL preliminary injunction.jam.wpd

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[1] The minutes of the November 17, 2003 public hearing are completely devoid of any information regarding public comment and thus provide no information for either ZBA members reviewing the record or a court to identify what information was provided. (See Baker Aff. par. 13).

[2] The minutes of September 2, 2004 are also grossly incomplete by omitting the testimony of the ZBA’s own engineers which demonstrated that the alternative plans were structurally sound and viable. See Baker Aff. par. 16)

[3] When asked whether KNGG’s proposed alternative could be designed safely, Mr. Maruzzi, from Spectra, answered “Sure it can.” See Record, tab 84, page 79.

______________________________________________________________

December 10: Widewaters' attorney John Hoggan requested "oral argument."

December 13: KNGG attorney Jeff Baker replied:

YOUNG, SOMMER ... LLC

Albany NY 12207

December 13, 2004

Hon. Charles E. Diamond

Chief of the Supreme Court

Albany County Courthouse Room 102

Columbia and Eagle Streets

Albany, New York 12207

RE: Kinderhook Neighbors For Good Growth, Inc. et al v. Town of Kingerhook

Zoning Board of Appeals, et al

Index No. 6961-04/RJI No. 01-04-080020

Assigned Judge: Thomas J. McNamara

Dear Mr. Diamond:

This letter is regarding the correspondence by John D. Hoggan, Jr., to your office dated December 10, 2004 ("Hoggan Jr. Letter") in the above referenced matter. This office represents Petitioners Kinderhook Neighbors for Good Growth, Inc. and Madeline Zinke in this matter. Please note, while we fully disagree and dispute those allegations and arguments contained in the Hogan Jr. Letter and reply affirmation, we feel it is inappropriate to further respond at this time.

However, Petitioners do agree that oral argument would be helpful to discuss these issues with the Court and we respectfully request that oral arguments be scheduled at the earliest time convenient for the Court.

Please feel free to contact me with any questions.

Very truly yours,

Jeffrey S. Baker

cc: John Hoggan, Jr., Esq.

Marc Gold, Esq.

bcc: Allen Schaefer

________________________________________________

On December 6th Widewaters and the Town of Kinderhook filed an affidavit with the court, once more asking for dismissal. In Response the Affirmation of Jeffrey S. Baker, Esq., dated December 7, 2004 in reply to the Affidavit of John Hoggan dated December 6, 2004 was filed:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY

_______________________________________________

In the Matter of

AFFIRMATION OF JEFFREY S. BAKER, ESQ.

KINDERHOOK NEIGHBORS FOR GOOD GROWTH, INC.,

and MADELINE R. ZINKE

Petitioners, Index #6961-04

RJI #01-04-080020

For a Judgment pursuant to Article 78 of CPLR

Assigned Judge: Hon. Thomas J. McNamara

-against-

TOWN OF KINDERHOOK ZONING BOARD OF APPEALS;

THE WIDEWATERS GROUP, INC. and WIDEWATERS

KINDERHOOK CO., LLC.

Respondents.

_______________________________________________

STATE OF NEW YORK ) COUNTY OF ALBANY ) SS.:

JEFFREY S. BAKER, ESQ., under penalty of perjury, deposes and says:

1. I am an attorney duly admitted in New York and a partner in the law firm of Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, attorneys for Petitioners Kinderhook Neighbors For Good Growth, Inc. and Madeline Zinke in this matter. I represented Petitioners during the approval process for the Widewaters project before the Town of Kinderhook Zoning Board of Appeals and the Planning Board and have had principle responsibility for initiating this proceeding against Respondents. I am personally familiar with the matters recited in this affirmation. I make this affirmation in response to Respondent Widewaters Reply Attorney Affirmation of John D. Hogan, Jr., dated December 6, 2004 and to request that the Court strike the affirmation pursuant to CPLR 405(a) due to its prejudicial and irrelevant subject matter which was improperly submitted to the Court at this stage of the proceeding.

2. This proceeding was initiated by Verified Petition on November 1, 2004. In response to the Verified Petition, Respondents filed a motion to dismiss alleging, inter alia, that Petitioners lacked standing to proceed with this action. Petitioners oppose the motion and have submitted their brief in opposition.

3. Respondent Widewaters submitted a reply brief with an attorney affirmation on December 6, 2004. Attached to the attorney affirmation, Respondent Widewaters submitted three purported "exhibits": (1) an internet search on Madeline Zinke (Exhibit A); (2) a letter from an appraiser to a principle of Widewaters (Exhibit B); and (3) portions of the final environmental impact statement submitted to the Town Planning Board (Exhibit C). ("Hogan Aff.")

4. I submit by this affirmation Petitioners objection to the improper submission of this alleged "evidence" contained in the Hogan Aff pursuant to CPLR 405 and request that the Court strike the matter contained therein.

5. In addition, Petitioners request that the Court strike those matters in the memorandum of law submitted with the Hogan Aff. which refer to "facts" not contained in the Verified Petition and supported only by the Hogan Aff.

6. As a primary matter, the Respondents reply purports to raise a significant issue relating to the Petitioner Zinke's status as trustee and her ability to represent the trust on the issues presented in the Petition. Respondents' initial motion papers were totally devoid of any allegation of this kind, which was raised for the first time in the reply papers. Respondents' motion alleges that Petitioner Zinke does not have the requisite injury-in-fact to maintain standing in this proceeding. See Respondent Widewaters Memorandum of Law, dated November 24, 2004 at page 14 ("Petitioners have patently failed to meet their burden to demonstrate a tangible, direct, unique, injury-in-fact. . . Ms. Zinke has alleged only conclusory and speculative harm in support of her standing claims.") Id. at 15 ("Ms. Zinke [contains] no allegation of any harm. . .") By focusing exclusively on Petitioners' alleged failure to establish an injury-in-fact, Respondents waived the argument they now raise for the first time regarding Petitioner Zinke's status on behalf of the trust. (Compare Widewaters Memorandum of Law, dated November 24, 2004,

DISCUSSION POINT

I A. Entitled: Petitioners Have Failed to Allege An Injury-In-Fact By Any Member of KNGG, Including Ms. Zinke; Widewaters Reply Memorandum of Law, dated December 6, 2004, DISCUSSION POINT I A. Entitled: Madeline Zinke Does Not Claim That She Is An "Adjoining Prtoperty Owner" Or That She "Lives Adjacent" To Widewaters Commons".)

7. Had Respondents properly raised the issue of Ms. Zinke's status as trustee initially, Petitioners would have been able to respond and provide the Court with the necessary information to further establish Ms. Zinke's standing. It is outrageous and utterly inappropriate for Respondents to be allowed to fully brief and issue for the first time in its reply and deprive Petitioners any opportunity to brief the Court on the issue.

8. Further, Respondent Widewaters has failed to recognize that on a motion to dismiss a petition upon an objection in point of law, all of the allegations contained in the petition are deemed to be true and the facts contained in the petition must be considered in their most favorable light. Manupella v. Troy City Zoning Board of Appeals, 272 A.D.2d 761, 762 (3rd Dept. 2000) quoting Matter of Parisella v. Town of Fishkill, 209 A.D.2d 850, 851 (3rd Dept. 1994).

9. Contrary to the Respondents contentions, the Petition contains allegations sufficient to establish that Petitioners have standing to maintain this proceeding. As trustee of the Zinke Revocable Trust, of which the main asset is the land adjacent to the Widewaters project, Madeline Zinke has responsibility for ensuring the value of the property and has a fiduciary responsibility with regard to the proper utilization of the property. Moreover, since she is the sole beneficiary, she has a specific interest in the value of the property.

10. If the Court is going to accept evidence on the issue of Petitioners injury-in-fact at this preliminary stage, Petitioners hereby request that the Court arrange for a trial/hearing in order for Petitioners to have the opportunity to establish the full evidentiary record on this issue.

11. Additionally, it is improper at this stage to submit documentary evidence beyond those documents explicitly referenced in the pleading. Respondents have submitted a jurisdictional motion, and it is improper to look beyond the allegations in the Petition. In addition, even if the documents were relevant, Petitioners have not been afforded the opportunity to test the voracity of the documents nor have they been subject to cross-examination or rebuttal. Unless this Court treats the motion as a motion for summary judgement, the documents submitted should be ignored. If the Court wishes to consider the motion as one for summary judgment, Petitioners would like the opportunity to submit further supporting evidence. See 211 West 56th St. Associates v. Department of Housing Preservation and Development of City of New York, 78 A.D.2d 793 (1st Dept. 1980).

12. Finally, CPLR 405 permits the Court to "strike scandalous or prejudicial matter unnecessarily inserted in a pleading." See CPLR 405(a). Exhibit A to the Hogan Aff. purports to establish a "Madeline R. Zinke's residence as Fort Myers, FL. Even assuming these uncorroborated materials refer to Petitioner, it is irrelevant and should not be considered by the Court. With regards to Exhibit B, again, Petitioner Zinke has sufficiently alleged that she will be negatively impacted by owning property located adjacent to the project. For the purposes of Respondents' motion, this allegation is to be considered true, and thus, Petitioners have established standing to maintain suit. Exhibit C has been provided at best to further confuse the issues before the Court, since Petitioners do not challenge the Planning Board's acceptance of the FEIS. Again, this is simply another example of Respondents efforts to expand the scope of this proceeding. Each of these exhibits has no probative value, contain uncorroborated prejudicial materials, and should be stricken by the Court pursuant to CPLR 405.

WHEREFORE, Petitioners pray for an Order granting their request to strike the Hogan Aff., and for such other and further relief as to the Court may seem just and proper.

____________________________________

JEFFREY S. BAKER, ESQ.

The Widewaters/Town of Kinderhook response to the KNGG filing was to request a dismissal of the filing. The KNGG answer to this request is below as "Memorandum of Law In Opposition":

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY

_______________________________________________

In the Matter of

KINDERHOOK NEIGHBORS FOR GOOD GROWTH, INC.,

and MADELINE R. ZINKE

Petitioners, Index #6961-04

RJI #01-04-080020

For a Judgment pursuant to Article 78 of CPLR

Assigned Judge:

Hon. Thomas J. McNamara

-against-

TOWN OF KINDERHOOK ZONING BOARD OF APPEALS;

THE WIDEWATERS GROUP, INC. and WIDEWATERS

KINDERHOOK CO., LLC.

Respondents.

_______________________________________________

MEMORANDUM OF LAW

_______________________________________________

YOUNG, SOMMER, WARD, RITZENBERG, BAKER & MOORE, LLC

Attorneys for Petitioner

Executive Woods, 5 Palisades Drive

Albany, NY 12205

Dated: December 3, 2004

by: Jeffrey S. Baker, Esq.

James A. Muscato II, Esq.

TABLE OF CONTENTS

Page

Preliminary Statement 1

Argument 2

POINT I

PETITIONERS HAVE STANDING TO CHALLENGE THE

DECISION OF THE ZBA TO GRANT WIDEWATERS AN

AREA VARIANCE 2

A. Madeline Zinke, a Member of KNGG Has Standing to Sue 4

B. KNGG as an organization has Standing through Mrs. Zinke 8

POINT II

THERE IS NO BASIS TO DISMISS THE PETITION FOR

FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 9

POINT III

PETITIONERS DID NOT FAIL TO NAME A NECESSARY

PARTY 11

CONCLUSION 13

(i)

PRELIMINARY STATEMENT

Petitioners Kinderhook Neighbors for Good Growth (KNGG) and Madeline Zinke submit this memorandum of law in opposition to the motion to dismiss made by respondents. Respondents' motion is predicated upon three grounds: 1) standing; 2) failure to exhaust administrative remedies and 3) failure to name a necessary party. As discussed below, respondents motions have no basis in law and are wholly without merit. Petitioner Zinke is an adjoining landowner to the parcel in question and as such has presumptive standing to challenge a zoning decision by the Zoning Board of Appeals (ZBA). Mrs. Zinke is a member of KNGG which consequently confers standing upon KNGG. As all of the claims in this matter concern the ZBA's violation of the zoning code in granting the variance to Widewaters, the respondents' reliance upon SEQRA cases to defeat petitioners' standing is of no avail.

Respondents other grounds for dismissal (exhaustion of remedies and failure to name a necessary party) are novel applications of those theories that do not find any support in existing case law. The ZBA has independent legal jurisdiction to grant variances from the zoning code and KNGG fully participated in those proceedings and presented arguments and evidence as to why Widewaters was not entitled to a variance. Once the ZBA rendered its decision the only avenue for review is through the courts by an Article 78 proceeding. The fact that a separate agency also reviews and approves the project is not relevant to the issues before the Court in this proceeding as that approval is not being challenged. However, it must be noted that the site plan approval granted by the Planning Board is contingent upon the grant of the area variance by the ZBA which, of course, is the subject of this proceeding.

Similarly the claim that the Planning Board is a necessary party has no basis in law. The Planning Board has no vested interest in the proceeding or the variance and has no legal interest in the variance. Respondents have not offered any legal support for an extension of the necessary party doctrine to include another agency which issued an approval for a project.

Throughout their papers respondents are in fact trying to argue the merits of the case under the guise of a motion to dismiss. However, in a motion to dismiss the allegations in the petition are take as true. Here respondents have not answered the petition nor have they filed the record or transcript of the proceedings. The vast majority of respondents papers, particularly the affidavits of Mr. Marzcochi and Mr. Gold must be disregarded as attempts to argue the merits on a motion to dismiss. The Court should disregard these blatant attempts by the respondents to cloud the issues and deny the motion to dismiss. Respondents should be directed to answer, file the record and transcript and address this proceeding upon the merits.

ARGUMENT

POINT I

PETITIONERS HAVE STANDING TO CHALLENGE

THE DECISION OF THE ZBA TO GRANT

WIDEWATERS AN AREA VARIANCE

Petitioners Madeline Zinke and KNGG have standing to challenge the decisions of the ZBA to grant the area variance for the Widewaters project because Mrs. Zinke is an adjoining property owner to the subject property and is within the zone of interest which the Zoning Ordinance was designed to protect. KNGG derives its standing through Mrs. Zinke, under the clear test provided by the Court of Appeals and the Third Department, Petitioners have met their burden and the motion to dismiss must be denied. Respondents' attempt to confuse the Court with an entirely irrelevant standard applied in SEQRA cases, is disingenuous and wrong. (See Respondent Widewaters' Memo of Law at p. 11).

It is well settled that on a motion to dismiss a petition upon an objection in point of law, all of the allegations contained in the petition are deemed to be true and the facts contained in the petition must be considered in their most favorable light. Manupella v. Troy City Zoning Board of Appeals, 272 A.D.2d 761, 762 (3rd Dept. 2000) quoting Matter of Parisella v. Town of Fishkill, 209 A.D.2d 850, 851 (3rd Dept. 1994).

Contrary to Respondents' contentions, standing is to be liberally construed so that land use disputes can be resolved on their merits rather than by restrictive standing rules.1 See id. The Court of Appeals has stated that:

standing principles, which are in the end matters of policy, should not be heavy-handed; in zoning litigation in particular, it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules. Because the welfare of the entire community is involved when enforcement of a zoning law is at stake, there is much to be said for permitting judicial review at the request of any citizen, resident or taxpayer.

Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning Appeals Tn. of North Hempstead, 69 N.Y.2d 406, 413 (1987); see also Emmett v. Town of Edmeston, 3 A.D.3d 816 (3d Dept. 2004)("standing principles are broadly construed in matters involving zoning litigation").

The test to determine whether an organization has standing is:

1. one or more members would have standing to sue;

2. the interests that the association seeks to protect are germane to its purposes; and

3. neither the asserted claim nor the relief requires participation of individual members.

Society of Plastics Indus., Inc. v. County of Suffolk, 77 N.Y.2d 761, 775 (1991).

A. Madeline Zinke, a Member of KNGG, Has Standing to Sue

To establish standing in a proceeding to review administrative decisions, a petitioner has to demonstrate that it has an injury in fact and that its interest is within the zone of interests protected by the statute. See Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning Appeals Tn. of North Hempstead, 69 N.Y.2d at 414.

Not surprisingly, the Respondents ignore the recent decision by the Third Department, decided this summer, which is definitive with regards to the injury that must be shown by petitioners to satisfy the standing requirements. In Center Square Association, Inc. v. City of Albany Board of Zoning Appeals, 9 A.D.3d 651 (3d Dept. 2004), the Court held, consistent with previous decisions by the Court of Appeals, that where petitioners show that their premises are located adjacent to or in close proximity to the subject property, actual injury or a showing of individual harm is not required because it is presumed that they will suffer an adverse impact different in nature or degree than the public at large. Center Square Association, Inc. v. City of Albany Board of Zoning Appeals, 9 A.D.3d 651, ("Here, the Association has members that own property abutting or within several homes of the properties at issue, close enough to establish standing without allegations of individual harm."); see also Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning Appeals Tn. of North Hempstead, 69 N.Y.2d at 413-14; O'Donnell v. Town of Schoharie, 291 A.D.2d 739, 740-41 (3rd Dept. 2002)(petitioners had standing because they lived adjacent to and across the street from subject property); Dennis v. Zoning Board of Appeals, Village of Briarcliff Manor, 167 Misc.2d 555, 557 (Sup. Ct. Westchester Co. 1995)(petitioners established standing because they were adjacent landowners); Manupella v. Troy City Zoning Board of Appeals, 272 A.D.2d 761, 762 (3rd Dept. 2000)(301 feet away held to be in close proximity to subject premises); Matter of McGrath v. Town Bd. of Tn of N. Greenbush, 254 A.D.2d 614, 616 (3rd Dept. 1998)(petitioner alleging that she lived within 500 feet of subject premises was sufficient to create presumption that she would be adversely impacted different from the public at large) lv. denied 93 N.Y.2d 803 (1999); Matter of Sopchak v. Guernsey, 176 A.D.2d 403, 403 (3rd Dept. 1991)(landowner within 500 feet of subject property had standing to challenge decision without proof of pecuniary damage or property damage).

Respondents reliance on Save Our Main Street Bldgs. is misplaced, and in fact irrelevant because the Court's holding involved standing under the State Environmental Quality Review Act and not a challenge to a zoning board of appeals administrative determination. The standard applied in SEQRA cases is much stricter than in zoning administration cases because in SEQRA cases, petitioners must allege a specific environmental injury that is in some way different from the public at large. See Society of Plastics Indus. v. County of Suffolk 77 N.Y.2d at 774. SEQRA is concerned with the environmental impacts of a project, and to establish standing, a petitioner must show that it is somehow affected by a specific environmental harm. Contrary to the zoning context, in the SEQRA context, proximity of petitioners may not be determinative as to that environmental harm and standing. However, in the zoning context, zoning ordinances typically regulate many aspects of land use in a community, including aesthetic and design standards. Zoning, by definition, protects the interests of adjoining landowners by prescribing the uses of land. As all of the cases referred to above have held, petitioners location with regards to the project is sufficient to establish standing because it is presumed that a petitioner adjacent to the project will be harmed by a deviation from the ordinance designed to protect the community. Thus, Respondents' reliance on a SEQRA case is irrelevant and should be ignored by this Court.

Similarly, while Oates did involve a ZBA decision, it is distinguishable by the fact that the petitioner in that case was not adjacent to the subject property, and the Court found that the petitioner was not close enough to establish he had been harmed. In fact, the petitioner was separated by a number of houses and railroad tracks. Furthermore, the petitioner in Oates' alleged that its injury was the community-wide impacts of the project, which the Court rejected as sufficient for standing purposes. However, unlike Oates, here, Petitioner Zinke is adjacent to the project. While Mr. Oates may not have been close enough, under the established precedent in the Third Department, Petitioner Zinke is, and thus has established an injury in-fact.

In addition to an injury in-fact, a petitioner has to establish that they are within the "zone of interest" such that their interest is included in those protected by the legislative enactment. See Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning Appeals Tn. of North Hempstead, 69 N.Y.2d at 414; Center Square Association, Inc. v. City of Albany Board of Zoning Appeals, 9 A.D.3d at 654; Manupella v. Troy City Zoning Board of Appeals, 272 A.D.2d at 762. A petitioner can meet this requirement by asserting that their interest in public health and safety lies within the zone of interest guarded by the pertinent ordinances. See Manupella v. Troy City Zoning Board of Appeals, 272 A.D.2d at 762.

As noted above, Ms. Zinke, lives adjacent to the proposed project. See Affidavit of Madeline R. Zinke (hereinafter "Zinke Aff."), dated October 22, 2004 and Exhibit "A". Moreover, Mrs. Zinke has alleged that the ZBA decision to grant the area variance will affect her property values by altering the character of the adjoining property and the community and allowing structures that do not comply with the design standards to be built. See Zinke Aff. 4. This is sufficient to establish an injury in-fact. See Emmett v. Town of Edmeston, 3 A.D.3d 816 (3d Dept. 2004)("While the language in the petition is not expansive, the map and other information in the record adequately establish that petitioners live on the same street as the subject property, with the closest living two houses down and across the street and the farthest a block away. Since the information provided was sufficient for Supreme Court to determine the actual location of petitioners' properties in relation to that of respondent, we find no reason to disturb the court's ruling as to standing.").

In addition, by granting the area variance for Widewaters, the ZBA is permitting development in the Town of Kinderhook that is inconsistent with the Zoning Ordinance. See Verified Petition, dated November 1, 2004 1 and Zinke Aff. 4. Such development is contrary to preserving and protecting the quality of life and community character in the Town of Kinderhook because it will adversely set a precedent for the ZBA to ignore the design standards enacted in the Code for future development. Ms. Zinke, a KNGG member, lives adjacent to the Widewaters project and will be affected by the ZBA's decisions to grant the area variance for the subject property. As such, KNGG and/or any of its members are not required to demonstrate an actual injury because it is presumed that these members will suffer an adverse impact different in nature or degree than the public at large. See Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning Appeals Tn. of North Hempstead, 69 N.Y.2d at 413-14; Center Square Association, Inc. v. City of Albany Board of Zoning Appeals, 9 A.D.3d 651 (3d Dept. 2004). Moreover, the Town Zoning Code specifically proscribes a process where affected parties such as Mrs. Zinke must receive written notice of proposed variances. See Town of Kinderhook Code § 81.50. Mrs. Zinke has received these notices and the Town has recognized her as an affected property owner.

B. KNGG as an organization has standing through Mrs. Zinke.

As stated above, an association has standing if one or more of its members has standing and the interest to be protected is germane to its purpose. As discussed above, Mrs. Zinke clearly has standing.

KNGG's stated organizational purpose is to protect the character of the community and ensure that the design standards under the Code and the protections they afford are enforced.

KNGG has demonstrated that it is within the "zone of interest" that was intended to be protected by the Zoning Ordinance. The Zoning Ordinance was adopted, inter alia, to:

protect and promote public health, safety, morals, comfort, convenience, economy, town aesthetics and the general welfare. . .

Town of Kinderhook Code § 81.1

In addition, the Code provides additional purposes:

. . . to promote and effectuate the orderly physical development of the Town of Kinderhook . . .

. . . to protect rural character . . .

. . . to enhance the aesthetic aspects throughout the entire community and maintain its present natural beauty. . . [and]

. . . to protect open space, scenic vistas, Agricultural and historical locations. . .

Town of Kinderhook Code § 81.1.

Moreover, the Town Code specifically states:

The intent of these regulations is to protect and enhance the rural and historic character of Kinderhook. Specifically, the purpose for requiring design standards is to a) encourage retention of existing open spaces visible from public places or roadways; b) protect important visual resources such as hills, mountains, water bodies and historic resources; and c) to minimize visual impact of new development from public rights-of-way.

Town of Kinderhook Code § 81.31

Since KNGG is present in the affected neighborhood and has raised issues concerning the impacts regarding a derivation from the design standards promulgated in the Code, it is within the zone of interest which the Zoning Ordinance was designed to protect. See generally Manupella v. Troy City Zoning Board of Appeals, 272 A.D.2d at 762. Development of the Town consistent with the zoning code is one of the issues included within KNGG's purpose.

One of KNGG's members lives adjacent to the property, establishing injury, and KNGG's challenge to the ZBA's decision to grant the area variance is within the zone of interests of the Town Zoning Code. Without discussion, Respondents concede that KNGG meets the remaining two prongs of the test for organizational standing. Thus, KNGG has met its burden to prove it has standing to maintain suit and Respondents' motion to dismiss should not be granted.

POINT II

THERE IS NO BASIS TO DISMISS THE PETITION

FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

Again, Respondents seek to greatly expand the scope of this proceeding beyond the matters before the ZBA and it is apparent that they either misunderstand the nature of this action or the administrative appeals process. Even assuming Respondents' factual claims are accurate, there is no basis in law, and Respondents cite to no cases, which would support their contention that this Petition should be dismissed for failure to raise issues relating the roof design and area variance to the Planning Board. Rather, in compliance with Town Law § 267(c) and the Kinderhook Town Code § 81.54, KNGG has exhausted all of its remedies before the ZBA and the proper forum to challenge the grant of the variance is the Supreme Court pursuant to Article 78. Thus, the motion to dismiss should be denied.

This case is not simply about choosing the most aesthetically pleasing design as Respondents repeat ad nauseum. In an attempt to cloud the issues before the Court, Respondents discuss at length the review process by the Planning Board. However, none of this has any relevance to the independent determination made under the authority of the ZBA to grant the variance. The variance relates to a specific application to construct a flat-roof where it would be otherwise prohibited by the Code. The SEQRA and site plan review conducted by the Planning Board is not at issue in this proceeding, and KNGG concedes that the time to challenge that process has passed. This proceeding involves solely the determination by the ZBA made on an application by the applicant for an area variance.2 This case is about the ZBA's arbitrary and capricious misapplication of the Town of Kinderhook Code and the failure to comply with the standard and balancing test for granting a variance mandated by Town Law and the Code.

The Town Law is clear on this point. Town Law § 267(c) states as follows:

Application to supreme court by aggrieved person: Any person or persons, jointly or severally aggrieved by any decision of the board of appeals . . . may appeal to the supreme court for review by a proceeding under article seventy-eight of the [CPLR].

Town Law § 267(c)

As discussed in the Petition and accompanying memorandum of law, Petitioners have been aggrieved by the decision of the ZBA to ignore the standards for granting an area variance under the law and ignoring the design standards under the Town Code. Moreover, the Town of Kinderhook Code specifically grants a similar right to aggrieved parties under § 81.54. As such, KNGG is permitted to appeal to this court for review of the ZBA's decision.

Respondents citation to cases which generally refer to the doctrine of failure to exhaust one's administrative remedies offer nothing and can not be applied here. This is not the situation referenced in the cases cited by Respondents where a party failed to raise certain issues before the administrative body whose determination is being reviewed. Respondents concede that Petitioners fully raised each of the issues now before the Court to the ZBA during the application process. Petitioners activities in front of another administrative board (here, the Planning Board) are irrelevant to the issue of exhaustion and there is no basis in law for Respondents claims. Similarly, Petitioners have not, and could not under the law, waived their right to challenge the ZBA's decision by their purported actions with respect to the Planning Board.. Simply put, Petitioners exhausted the available remedies before the ZBA, the administrative body which is the focus of this proceeding, and now seek judicial review before this Court as allowed under Article 78 of the CPLR.

POINT III

PETITIONERS DID NOT FAIL TO NAME

A NECESSARY PARTY

Finally, there is simply no merit to Respondents claims that Petitioners failed to name a necessary party. The Petitioners brought this action against the applicant and the administrative body that decided the application. Contrary to Petitioners repeated contentions, this law suit is not a challenge to the construction of the shopping center. Rather, the Petition challenges the propriety of the ZBA's approval of the area variance permitting the applicant to deviate from the design standards in the Town Code. Thus, the Planning Board is not involved with the area variance determination and is not a necessary party to this action. Were the Court to adopt Respondents' argument, it would eviscerate the CPLR and the rules regarding necessary parties by forcing plaintiffs/petitioners to sue any party merely involved or somehow interested in a determination.

Under the Town Law, a Zoning Board of Appeals' authority to issue variances is separate and distinct from the powers of the Planning Board. See Town Law § 267(b). The granting of use and area variances is within the exclusive jurisdiction of the Zoning Board of Appeals. See Id. The Verified Petition solely challenges actions by the ZBA, including the granting of the area variance. See Verified Petition at 1, 3, 4, 45, 48, 59-64.

Moreover, the Planning Board's recommendation to the ZBA to approve the variance is an insufficient action to make the Planning Board a necessary party. See Headriver, LLC v. Town Board of the Town of Riverhead, 2 N.Y. 3d 766 (2004)(Holding that the determination of the Planning Commission was merely advisory, and therefore it was not a necessary party.). The Planning Board never rendered a legally binding decision regarding the variance application and it can not do so under the Town Law.

The principal reason for compulsory joinder of parties is "to protect nonparties whose rights should not be jeopardized if they have a material interest in the subject matter." Llana v. Town of Pittstown, 234 A.D.2d 881, 883-84 (3rd Dept. 1996). CPLR 1001(a) states that a person should be made a party if he or she might be "inequitably affected" by a judgment in the action. A person is deemed to be a necessary party "if complete relief is to be accorded between the persons who are parties to the action or those who might be inequitably affected by a judgment." Baker v. Roxbury, 220 A.D.2d 961, 963 (3rd Dept. 1995)(citations omitted).

Here, the Planning Board simply does not have an interest which will be affected by the outcome of KNGG's challenge to the ZBA. Respondents argument regarding "collateral attack" is an attempt to cloud the real issue before this Court: that the ZBA erred by granting the applicant an area variance. This determination was not made by the Planning Board, and any effect the decision may have on the Planning Board does not arise to a level of requiring that the Planning Board be made a necessary party. Should the Petition be granted and the variance annulled, Respondent Widewaters will either re-apply to the ZBA for a variance or seek to modify its site plan approval.

CONCLUSION

For the foregoing reasons, the Court should deny the motion to dismiss; order the Respondents to answer the Petition, file the record and transcript and grant such other and further relief as this Court deems just and proper.

Dated: December 3, 2004

YOUNG, SOMMER, WARD, RITZENBERG, BAKER & MOORE, LLC

By: ____________________________________

Jeffrey S. Baker, Esq.

James A. Muscato II, Esq.

Attorneys for Petitioners

Executive Woods, 5 Palisades Drive

Albany, New York 12207

(518) 438-9907

_______________________________________________

Below is a copy of the VERIFIED PETITION

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY

_______________________________________________

In the Matter of
KINDERHOOK NEIGHBORS FOR GOOD GROWTH, INC., and
MADELINE R. ZINKE
Petitioners,
VERIFIED PETITION
For a Judgment pursuant to Article 78 of CPLR &nbs
-against-
TOWN OF KINDERHOOK ZONING BOARD OF APPEALS; RJI No.
THE WIDEWATERS GROUP, INC. and WIDEWATERS Index No.
KINDERHOOK CO., LLC.
Respondents.
_______
Petitioners Kinderhook Neighbors for Good Growth, Inc. (AKNGG@) and Madeline R. Zinke, by their attorneys Young Sommer Ward Ritzenberg Baker & Moore, LLC allege as follows:

SUMMARY OF PROCEEDING

1. This is a proceeding brought pursuant to Article 78 of the Civil Practice Laws and Rules (ACPLR@) to annul, vacate and set aside the decision of respondent Town of Kinderhook Zoning Board of Appeals (AZBA@) to grant an area variance to respondents The Widewaters Group, Inc. and Widewaters Kinderhook Co., LLC (collectively AWidewaters@) for the proposed Widewaters Commons in the Town of Kinderhook. The ZBA=s decision to grant the variance was illegal, arbitrary and capricious by granting a variance from the Town of Kinderhook design guidelines to allow for a flat roof on one of the Widewaters buildings without sufficient proof of the inability of Widewaters to comply with the design guidelines and ignoring alternative designs that were compliant with the zoning code.

PARTIES

2. Petitioner Kinderhook Neighbors for Good Growth, Inc. (AKNGG@) is a not-for-profit corporation with its mailing address at P.O. Box 424, Kinderhook, NY 12106. KNGG has approximately 225 members. KNGG was founded in 2002 and is dedicated to preserving the character, economy and quality of life of the Town of Kinderhook. KNGG works to assure that development in the town proceeds in responsible manner, consistent with the town zoning code and preserving, inter alia the historical architecture and rural character of the Town. KNGG has been very involved in the review of Widewaters Commons before the Kinderhook Planning Board and the Kinderhook ZBA. Members of KNGG own property and/or reside adjacent to or in close proximity to the Widewaters Commons site and will view the project site from their property.

3. KNGG and its members will be adversely effected by the ZBA=s decision which cavalierly disregards the design standards of the zoning code. KNGG=s members were involved in the revision and adoption of the Town of Kinderhook Zoning Code in 2001 which developed new design standards intended to control future development in the town and to assure that such development created a more pleasing visual environment and aesthetic standard that would promote a more consistent community character. The ZBA=s decision in this case undermines the zoning code creating the presumption that future large scale projects will not be held to the zoning code design standards. The flat roof for Widewaters Commons will present a generic utilitarian design that is inconsistent with the goals of the zoning code.

4. Petitioner Madeline R. Zinke (AMrs. Zinke@) is a member of KNGG and is the sole trustee and beneficiary of the Daniel Zinke Revocable Trust which owns a 70 acre parcel of land immediately adjacent to the proposed site of Widewaters Commons. Mrs. Zinke believes that proper application of the design standards of the Kinderhook Zoning Code will protect the value of her property by assuring that adjoining development will be of a character and design that makes the area more attractive and preserves its rural character. Mrs. Zinke also believes that if the ZBA were to allow all large developers to flaunt the design standards the zoning code would be meaningless and the town=s character would suffer. Widewaters= large shopping center with a flat roof as approved by the ZBA will be far less attractive then the mandated peak-roofed design. As a result any future development of her property will be negatively impacted by being adjacent to a large building which does not conform to the Town=s design standards.

5. Respondent Town of Kinderhook Zoning Board of Appeals (AZBA@) is the duly appointed body by the Town of Kinderhook and located at the Town of Kinderhook Town Hall, Niverville, New York and is charged with considering applications for variances from the Kinderhook Zoning Code.

6. Respondent The Widewaters Group, Inc. is a New York Corporation with its principal office located at 5768 Widewaters Parkway, DeWitt, New York 13214 and is the authorized agent of Respondent Widewaters Kinderhook Co., LLC (collectively referred to as AWidewaters@).

FACTUAL BACKGROUND

7. Widewaters is the developer of a project known as Widewaters Commons located on a 19 acre parcel at the intersection of New York State Routes 9 and 9H in the Town of Kinderhook. Widewaters has obtained a site plan approval for Widewaters Commons from the Town of Kinderhook Planning Board (APlanning Board@) for a shopping center plaza which consists of an approximately 47,192 sq. ft. Hannaford food market (including a 496 sq. ft. vestibule and exit area), an attached 15,000 sq. ft. building, (collectively the Hannaford and attached building are referred to as Abuildings 4 and 4A@), a 10,000 sq. ft. building in the northwest corner of the site and an approximately 3,140 sq. ft. restaurant on the northeast corner of the site.

8. Widewaters applied for an area variance from the ZBA to build a flat roof for buildings 4 and 4A instead of the peak roof mandated by the Kinderhook Zoning Code. On September 23, 2004 the ZBA adopted a resolution granting the requested area variance. A document purporting to be the September 23rd resolution was filed with the Kinderhook Town Clerk on October 1, 2004.

9. Widewaters initiated seeking approvals for Widewaters Commons in November 2001 when it submitted an application for site plan approval to the Planning Board. At that time, the subject parcel was divided between two different zoning districts with approximately half of the site located in the B-1 District and the rear half in the A/R District. Shopping Centers and commercial activities are allowed in the B-1 District and prohibited in the A/R District.

10. Widewaters= proposal involved locating the buildings in the B-1 portion of the site and locating the wastewater treatment system in the A/R portion.

11. In December 2001 the Kinderhook Town Board adopted a new Zoning Code which contains significant changes from the earlier code. The new Zoning Code (the ANew Zoning Code@) became effective on or about January 1, 2002. The new zoning code was adopted to implement the Town of Kinderhook Comprehensive Plan which had been adopted by the Town Board in August 2000. That Comprehensive Plan was the product of an exhaustive public process wherein the Town considered its future plans in the face of increasing development pressures.

12. A major change included in the New Zoning Code was the adoption of Design Standards, Zoning Code ' 81-31. The purpose of the design standards is Ato protect and enhance the rural and historic character of Kinderhook@. Zoning Code ' 81-31(A).

13. Upon information and belief, at the same time the Town Board adopted the New Zoning Code, it also re-zoned the property for which Widewaters had submitted its application to bring the entire property within the B-1 District.

14. The New Zoning Code also provided that applications for site plan approval pending before the Planning Board before the effective date of the New Zoning Code would continue to be considered under the Aold@ Zoning Code.

15. Throughout the first half of 2002, Widewaters continued to pursue its application for site plan approval under the old zoning code.

16. The Planning Board declared itself Lead Agency under the State Environmental Quality Review Act (SEQRA) Environmental Conservation Law ' 8-0101 et. seq. The Planning Board determined that the proposed Widewaters Commons might have a significant adverse impact upon the environment and directed Widewaters to prepare a Draft Environmental Impact Statement (DEIS).

17. In July 2002, Widewaters submitted a DEIS to the Planning Board for its acceptance and the commencement of the public comment period. The DEIS prepared by Widewaters stated that the project pre-dated the New Zoning Code and would be considered prior to the re-zoning of the parcel and was not subject to the design standards of the New Zoning Code.

18. On July 29, 2002, KNGG through its attorneys, submitted a letter noting that Widewaters= proposal violated the lot coverage limitations of the old zoning code and that a wastewater treatment system for a commercial use was not a permitted use in the A/R portion of the parcel.

19. In response to KNGG=s objections, on August 16, 2002 Widewaters obtained a letter from Walt Simonsmeier, then the Kinderhook Code Enforcement Officer which purported to include his determination that Widewaters= plans did not exceed the lot coverage requirements and that a wastewater treatment system was a permitted accessory use in the A/R District.

20. On August 22, 2004 partially in reliance on Mr. Simonsmeier=s letter, the Planning Board accepted the DEIS as complete and scheduled a public hearing.

21. KNGG questioned Mr. Simonsmeier=s authority to issue a determination on the compliance of the Widewaters project with the zoning code while the project was subject to site plan approval. KNGG requested that Widewaters stipulate that Mr. Simonsmeier=s letter did not constitute a legally binding determination. Widewaters refused to so stipulate.

22. To preserve its rights, KNGG filed an appeal of Mr. Simonsmeier=s determination with the ZBA. Thereafter, the Planning Board determined that the public hearing on the DEIS should be stayed pending a resolution of the KNGG=s appeal.

23. On October 7, 2002, by Order to Show Cause and Temporary Restraining Order, Widewaters commenced an action against the Planning Board seeking to vacate the stay of the public hearing. Matter of Widewaters Group, Inc, et al v. Town of Kinderhook Planning Board, Sup. Ct. Albany Co. Index No. 6716-02. As a result the public hearing on the DEIS was held on October 15, 2002.

24. In response to KNGG=s appeal to the ZBA, Widewaters took the position that the Simonsmeier letter was not a determination and thus that the ZBA did not have jurisdiction.

25. More significantly, in a letter to the ZBA dated October 17, 2002, Widewaters reversed the position it had taken in its own DEIS and determined that it would be subject to the New Zoning Code. Widewaters stated that the entire property should be considered zoned B-1, thus avoiding the issues of lot coverage and illegal use of the A/R portion of the property.

26. By choosing to abandon its right to grandfathered status under the Old Zoning Code, Widewaters elected to be subject to the Design Standards of the New Zoning Code.

27. Ultimately the ZBA ruled that Mr. Simonsmeier=s letter of August 16, 2002 was not an appealable determination and it lacked jurisdiction to hear KNGG=s appeal.

28. On November 21, 2002, the Planning Board directed Widewaters to prepare a Supplemental Environmental Impact Statement (SEIS) to address, inter alia, which zoning code it was applying under and how it would comply with the zoning code.

29. On July 2, 2003, the Planning Board accepted a SEIS prepared by Widewaters which stated that it was proceeding under the New Zoning Code and that it would be seeking a variance from the ZBA from the Design Standards of the New Zoning Code, specifically ' 81-39(H)(4)(e) which prohibits mansard, flat or shed roofs.

30. On November 17, 2003 the ZBA held a public hearing on Widewaters= application for an area variance from the design standards. As part of its application Widewaters= claimed that the only roof design compliant with the zoning code would be of an excessive size and scale out of proportion to the area.

31. At the public hearing, KNGG presented letters and testimony from, among others, two registered architects that demonstrated that compliant roof designs were easily achievable and that Widewaters= representation of an over-sized compliant roof was a self-serving unrealistically worst case scenario. KNGG, through its attorneys and experts also noted that Widewaters had failed to provide any supporting documentation regarding the difficulty or cost associated with constructing a code compliant building.

32. Also at the public hearing, Widewaters, by its attorney Robert J. Alessi, Esq. admitted that Widewaters needed to consider the submissions by KNGG and would reconsider its design and submit additional supporting materials. Widewaters requested that the public hearing be kept open and the ZBA agreed.

33. Widewaters made no further submission to the ZBA until July 1, 2004 when it submitted a new letter to the ZBA which responded, in part to KNGG=s public comments from November 2003.

34. Contrary to its representations at the November public hearing, Widewaters did not reconsider its roof design or attempt to provide a more compliant design. Nor did Widewaters submit any additional supporting information for its application.

35. At its July 3, 2004 meeting the ZBA rejected Widewater=s submission and attempt to reconvene the public hearing due to the lack of complete information.

36. KNGG=s architect Alvin K. Knoll submitted an opinion letter to the ZBA noting that a Code compliant alternative was possible despite Widewaters= contentions to the contrary. Mr. Knolls= proposed design contained a hip roof at a 4/12 pitch with a cupola structure placed on top. The cupola structure was designed in large part due to the size of the building footprint. In addition, the exterior walls of the building were lowered to 20 feet to minimize the visual impact. The design submitted by KNGG was compliant with the New Code and proved that a reasonable Code compliant alternative existed. On July 23, 2004, again, Widewaters submitted architectural drawings depicting a large and exaggerated roof design as an alternative to the flat roof.

37. At the August 5, 2004 meeting of the ZBA, Mr. Knoll answered questions regarding his initial design from the Board. Mr. Knoll agreed to revise his submission consistent with the Board=s comments regarding the aesthetics of KNGG=s alternative.

38. In addition, at the August 5, 2004 meeting the ZBA decided to seek the opinion of the Town=s consulting engineer, Spectra regarding the viability of the alternative design proposed by Mr. Knoll.

39. At the September 2, 2004 continuation of the ZBA hearing, Spectra presented a letter commenting upon Mr. Knoll=s design. Also at that hearing Spectra discussed its questions with Mr. Knoll and in testimony to the ZBA at the hearing, Spectra clarified its position that it saw no inherent engineering or safety problems with Mr. Knoll=s design. Spectra also clarified that it had no reason to question the engineering integrity of either Mr. Knoll=s nor Widewaters= design and that it was premature for any party to present engineering level detail for the proposed designs.

40. At the September 2, 2004 hearing the ZBA voted to close the public hearing and shortly thereafter voted to adjourn the ZBA meeting.

41. Upon information and belief, after voting to adjourn for the night, there was a discussion between Widewaters and some members of the ZBA whereby Widewaters requested a special hearing or meeting.

42. The next day, September 3, 2004, the ZBA published a notice that the ZBA would hold a Aspecial hearing pursuant to Section 276 of the Town Law@ on Widewaters= application. The special hearing was set for September 23, 2004.

43. Relying upon the ZBA=s notice of a Aspecial hearing@ and understanding the word Ahearing@ as a legal term of art as opposed to a Aspecial meeting@, KNGG submitted additional information from its architect which responded to some of the ZBA members= concerns. The revised design showed that a smaller cupola could be constructed that addressed all of the ZBA=s concerns.

44. At the Aspecial hearing@ on the September 23rd, the ZBA ignored the fact that it had been noticed as a special hearing and ruled that the record had been closed, that further comment would not be allowed and ignored the new information demonstrating that a compliant design was possible.

45. Upon a motion by ZBA member Kelly Nicolletta, the ZBA approved the requested area variance without clearly identifying the basis of its decision.

46. The motion by Mrs. Nicolleta did not reference the criteria in the New Zoning Code but made an irrelevant reference to the elements of the seal of the Town of Kinderhook, asserting that those were the controlling standards and not the zoning code.

47. After passing the resolution proffered by Mrs. Nicolletta by a 3-2 vote, the ZBA then proceeded to adopt separate findings supposedly supporting its determination.

48. The Findings Statement contains a number of errors and mischaracterizations and statements without any support in the record including:
a. ASPECTRA . . . found [the KNGG] design unacceptable due, among other things, to its impact on scenic views, potential for creation of hazards due to snow sliding from the roof, potential drainage problems, and possible non-compliance with the Town Code height restrictions.@ (Findings Statement para. 12). In fact, SPECTRA did not state that the alternative design was Aunacceptable@ and in fact, at the hearing of September 2 stated that it did not find any structural or design problems with the KNGG proposal that could not be resolved.
b. AThe ZBA finds that strict application of Town Code ' 81-31(H)(4)(e) would create adverse visual impacts that are mitigated by the granting of the variance.@ (Findings Statement pg. 10 para. 4). There is no evidence in the record to support the contention that strict application of the Code would create adverse visual impacts. In fact, KNGG=s alternate design proved that less visual impact could be achieved with a Code compliant design than the one in which the variance was sought.
c. A. . . ZBA finds that denial of the requested variance would create an undesirable change in community character by resulting in the need to construct a taller building . . .@ (Findings Statement pg. 11 para. 5). Again, this statement is not supported by the record and ignores the alternatives provided by KNGG which proved that a eight story tall structure was not the only alternative under the Code contrary to Widewaters= assertions.
d. A . . .no prudent and feasible Code-compliant alternatives exist.@ (Findings Statement pg. 11 para. 6). This statement is false, ignores the submission made by KNGG and is directly contradicted by the testimony of the Town=s own consultant.
e. A . . . the hardship in this case was not self-created.@ (Findings Statement pr. 12 para. 9). As discussed above, Widewaters chose and agreed to proceed under the New Code and was aware that the design standards existed upon making that choice. The Ahardship@ created by the Code standard has no support in the record, and in fact, Widewaters has failed to establish any hardship which would result if forced to comply with the Code.
49. On October 1, 2004 the Chairman of the ZBA signed and filed with the Town Clerk a completely different resolution than the one made by Mrs. Nicolletta and approved by the ZBA on September 23rd. The October 1st Resolution omitted the reasons proffered by Mrs. Nicoletta and changed the order of the ZBA=s resolutions on September 23rd, wherein it had adopted Section 267 Findings before it adopted SEQRA Findings.
INADEQUATE MINUTES AND RECORD

50. The minutes of ZBA meetings are grossly inconsistent and incomplete and fail to provide an accurate record of the information before the ZBA.

51. The minutes of the November 17, 2003 public hearing are completely devoid of any information regarding public comment and thus provide no information for either ZBA members reviewing the record or a court to identify what information was provided.

52. The minutes of September 2, 2004 are also grossly incomplete by omitting the testimony of the ZBA=s own engineers which demonstrated that the alternative plans were structurally sound and viable.

53. At each public hearing held by the ZBA and at most other meetings held by the ZBA, Widewaters had a stenographer present taking verbatim transcript of the proceeding. For a complete record of the transcript of the proceedings, that transcript must be provided to the Court and Petitioners.
ZBA MEMBER BIAS

54. The review of the Widewaters project over several years created significant division and controversy in the Town of Kinderhook. Both opponents and supporters of the project evidenced their position with lawn signs stating which side they were on.

55. As a rule persons with partisan views on the project were excluded from sitting on either the Planning Board or the ZBA to consider the Widewaters applications, supposedly leaving it to members who had not prejudged the outcome.

56. ZBA member Nicolletta however, had a pro-Widewaters sign on her front lawn and refused to recuse herself from consideration of the variance application.

57. Mrs. Nicoletta=s pre-determined views clouded her judgment and effected the outcome as evidenced by her resolution referring to the Kinderhook Town Seal and ignoring the language of the recently adopted zoning code. Her bias, lack of objectivity and refusal to apply the applicable standards resulted in the approval of the variance as the deciding vote in the final 3-2 tally.
AS AND FOR A FIRST CAUSE OF ACTION

58. Petitioners repeat and reallege paragraphs 1 through 57 as if fully set forth herein.

59. Respondent ZBA acted arbitrarily and capriciously and in violation of law when it approved the Applicant=s application for an area variance from the design standards in the New Town Code.

60. In granting the area variance, the ZBA did not follow its statutory duty to take into account and base its decision on a balancing of the factors in Town Law ' 267-b.

61. The ZBA failed to require the Applicant to adequately demonstrate that the area variance is needed.

62. The ZBA failed to consider the evidence in the record that the Applicant was fully aware of the zoning restriction when the property was purchased.

63. The ZBA failed to make a factual determination that a Code compliant alternative was available to the Applicant.

64. The ZBA=s decision to grant the area variance must be annulled.
WHEREFORE, Petitioners respectfully demand judgment as follows:
1. Annulling and vacating the ZBA=s decision to grant the Applicant an area variance for its Widewater Commons project;
2. Awarding Petitioners attorneys fees, costs and disbursements of this action; and
3. Granting such other and further relief as this Court deems just and proper.

Dated: November 1, 2004
YOUNG, SOMMER, WARD, RITZENBERG, BAKER & MOORE, LLC

By: ______________

James A. Muscato, Esq.
Jeffrey S. Baker, Esq.
Attorneys for Petitioners
Executive Woods
5 Palisades Drive
Albany, New York 12207
(518) 438-9907

VERIFICATION
STATE OF NEW YORK )
: ss.:
COUNTY OF ALBANY )

JAMES A. MUSCATO II, being duly sworn, deposes and says that he is an attorney and counselor at law and is a member of the firm of Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, attorneys for Petitioners, that he has read the foregoing Verified Petition and knows the contents thereof relating to the claims asserted by Petitioner KNGG; that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged upon information and belief and as to those matters he believes them to be true; that the sources of his information and the grounds of his beliefs consist of certain statements of and communications with the Petitioner KNGG, investigation into the facts and circumstances of the above-entitled action made by deponent=s firm as attorney for said Petitioner KNGG, and a review of documents relative to these proceedings; that the reason this verification is made by deponent and not by said Petitioner KNGG is that the Petitioner KNGG. is not within and do not have an office within the County of Albany where the deponent has his office.
_______________________________
JAMES A. MUSCATO II
Sworn to before me this
1st day of November, 2004
__________________________
Notary Public

__________________________________________________

December 10: Widewaters' attorney John Hoggan requested "oral argument."

December 13: KNGG attorney Jeff Baker replied:

_____________________________________________________

Young, Sommer ... LLC

December 13, 2004

Hon. Charles E. Diamond

Chief of the Supreme Court

Albany County Courthouse

Room 102

Columbia and Eagle Streets

Albany, New York 12207

RE: Kinderhook Neighbors For Good Growth, Inc. et al v. Town of Kingerhook

Zoning Board of Appeals, et al

Index No. 6961-04/RJI No. 01-04-080020

Assigned Judge: Thomas J. McNamara

Dear Mr. Diamond:

This letter is regarding the correspondence by John D. Hoggan, Jr., to your office dated December 10, 2004 (“Hoggan Jr. Letter”) in the above referenced matter. This office represents Petitioners Kinderhook Neighbors for Good Growth, Inc. and Madeline Zinke in this matter. Please note, while we fully disagree and dispute those allegations and arguments contained in the Hogan Jr. Letter and reply affirmation, we feel it is inappropriate to further respond at this time.

However, Petitioners do agree that oral argument would be helpful to discuss these issues with the Court and we respectfully request that oral arguments be scheduled at the earliest time convenient for the Court.

Please feel free to contact me with any questions.

Very truly yours,

Jeffrey S. Baker

cc: John Hoggan, Jr., Esq.

Marc Gold, Esq.

bcc: Allen Schaefer

_____________________________________________

On December 6th Widewaters and the Town of Kinderhook filed an affidavit with the court, once more asking for dismissal. In Response the Affirmation of Jeffrey S. Baker, Esq., dated December 7, 2004 in reply to the Affidavit of John Hoggan dated December 6, 2004 was filed:

______________________________________________

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY

___________________________________________________________________________

AFFIRMATION OF JEFFREY S. BAKER, ESQ.

In the Matter of KINDERHOOK NEIGHBORS FOR GOOD GROWTH, INC.,

and MADELINE R. ZINKE

Petitioners, Index #6961-04

RJI #01-04-080020

For a Judgment pursuant to Article 78 of CPLR

Assigned Judge:

Hon. Thomas J. McNamara

-against-

TOWN OF KINDERHOOK ZONING BOARD OF APPEALS;

THE WIDEWATERS GROUP, INC. and WIDEWATERS

KINDERHOOK CO., LLC.

Respondents.

______________________________________________________________________________

STATE OF NEW YORK )

COUNTY OF ALBANY ) SS.:

JEFFREY S. BAKER, ESQ., under penalty of perjury, deposes and says:

1. I am an attorney duly admitted in New York and a partner in the law firm of Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, attorneys for Petitioners Kinderhook Neighbors For Good Growth, Inc. and Madeline Zinke in this matter. I represented Petitioners during the approval process for the Widewaters project before the Town of Kinderhook Zoning Board of Appeals and the Planning Board and have had principle responsibility for initiating this proceeding against Respondents. I am personally familiar with the matters recited in this affirmation. I make this affirmation in response to Respondent Widewaters Reply Attorney Affirmation of John D. Hogan, Jr., dated December 6, 2004 and to request that the Court strike the affirmation pursuant to CPLR 405(a) due to its prejudicial and irrelevant subject matter which was improperly submitted to the Court at this stage of the proceeding.

2. This proceeding was initiated by Verified Petition on November 1, 2004. In response to the Verified Petition, Respondents filed a motion to dismiss alleging, inter alia, that Petitioners lacked standing to proceed with this action. Petitioners oppose the motion and have submitted their brief in opposition.

3. Respondent Widewaters submitted a reply brief with an attorney affirmation on December 6, 2004. Attached to the attorney affirmation, Respondent Widewaters submitted three purported “exhibits”: (1) an internet search on Madeline Zinke (Exhibit A); (2) a letter from an appraiser to a principle of Widewaters (Exhibit B); and (3) portions of the final environmental impact statement submitted to the Town Planning Board (Exhibit C). (“Hogan Aff.”)

4. I submit by this affirmation Petitioners objection to the improper submission of this alleged “evidence” contained in the Hogan Aff pursuant to CPLR 405 and request that the Court strike the matter contained therein.

5. In addition, Petitioners request that the Court strike those matters in the memorandum of law submitted with the Hogan Aff. which refer to “facts” not contained in the Verified Petition and supported only by the Hogan Aff.

6. As a primary matter, the Respondents reply purports to raise a significant issue relating to the Petitioner Zinke’s status as trustee and her ability to represent the trust on the issues presented in the Petition. Respondents’ initial motion papers were totally devoid of any allegation of this kind, which was raised for the first time in the reply papers. Respondents’ motion alleges that Petitioner Zinke does not have the requisite injury-in-fact to maintain standing in this proceeding. See Respondent Widewaters Memorandum of Law, dated November 24, 2004 at page 14 (“Petitioners have patently failed to meet their burden to demonstrate a tangible, direct, unique, injury-in-fact. . . Ms. Zinke has alleged only conclusory and speculative harm in support of her standing claims.”) Id. at 15 (“Ms. Zinke [contains] no allegation of any harm. . .”) By focusing exclusively on Petitioners’ alleged failure to establish an injury-in-fact, Respondents waived the argument they now raise for the first time regarding Petitioner Zinke’s status on behalf of the trust. (Compare Widewaters Memorandum of Law, dated November 24, 2004, DISCUSSION POINT I A. Entitled: Petitioners Have Failed to Allege An Injury-In-Fact By Any Member of KNGG, Including Ms. Zinke; Widewaters Reply Memorandum of Law, dated December 6, 2004, DISCUSSION POINT I A. Entitled: Madeline Zinke Does Not Claim That She Is An “Adjoining Prtoperty Owner” Or That She “Lives Adjacent” To Widewaters Commons”.)

7. Had Respondents properly raised the issue of Ms. Zinke’s status as trustee initially, Petitioners would have been able to respond and provide the Court with the necessary information to further establish Ms. Zinke’s standing. It is outrageous and utterly inappropriate for Respondents to be allowed to fully brief and issue for the first time in its reply and deprive Petitioners any opportunity to brief the Court on the issue.

8. Further, Respondent Widewaters has failed to recognize that on a motion to dismiss a petition upon an objection in point of law, all of the allegations contained in the petition are deemed to be true and the facts contained in the petition must be considered in their most favorable light. Manupella v. Troy City Zoning Board of Appeals, 272 A.D.2d 761, 762 (3rd Dept. 2000) quoting Matter of Parisella v. Town of Fishkill, 209 A.D.2d 850, 851 (3rd Dept. 1994).

9. Contrary to the Respondents contentions, the Petition contains allegations sufficient to establish that Petitioners have standing to maintain this proceeding. As trustee of the Zinke Revocable Trust, of which the main asset is the land adjacent to the Widewaters project, Madeline Zinke has responsibility for ensuring the value of the property and has a fiduciary responsibility with regard to the proper utilization of the property. Moreover, since she is the sole beneficiary, she has a specific interest in the value of the property.

10. If the Court is going to accept evidence on the issue of Petitioners injury-in-fact at this preliminary stage, Petitioners hereby request that the Court arrange for a trial/hearing in order for Petitioners to have the opportunity to establish the full evidentiary record on this issue.

11. Additionally, it is improper at this stage to submit documentary evidence beyond those documents explicitly referenced in the pleading. Respondents have submitted a jurisdictional motion, and it is improper to look beyond the allegations in the Petition. In addition, even if the documents were relevant, Petitioners have not been afforded the opportunity to test the voracity of the documents nor have they been subject to cross-examination or rebuttal. Unless this Court treats the motion as a motion for summary judgement, the documents submitted should be ignored. If the Court wishes to consider the motion as one for summary judgment, Petitioners would like the opportunity to submit further supporting evidence. See 211 West 56th St. Associates v. Department of Housing Preservation and Development of City of New York, 78 A.D.2d 793 (1st Dept. 1980).

12. Finally, CPLR 405 permits the Court to “strike scandalous or prejudicial matter unnecessarily inserted in a pleading.” See CPLR 405(a). Exhibit A to the Hogan Aff. purports to establish a “Madeline R. Zinke’s residence as Fort Myers, FL. Even assuming these uncorroborated materials refer to Petitioner, it is irrelevant and should not be considered by the Court. With regards to Exhibit B, again, Petitioner Zinke has sufficiently alleged that she will be negatively impacted by owning property located adjacent to the project. For the purposes of Respondents’ motion, this allegation is to be considered true, and thus, Petitioners have established standing to maintain suit. Exhibit C has been provided at best to further confuse the issues before the Court, since Petitioners do not challenge the Planning Board’s acceptance of the FEIS. Again, this is simply another example of Respondents efforts to expand the scope of this proceeding. Each of these exhibits has no probative value, contain uncorroborated prejudicial materials, and should be stricken by the Court pursuant to CPLR 405.

WHEREFORE, Petitioners pray for an Order granting their request to strike the Hogan Aff., and for such other and further relief as to the Court may seem just and proper.

____________________________________

JEFFREY S. BAKER, ESQ.

__________________________________________

The Widewaters/Town of Kinderhook response to the KNGG filing was to request a dismissal of the filing. The KNGG answer to this request is below as "Memorandum of Law In Opposition":

__________________________________________

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY

______________________________________________________________________________

In the Matter of

KINDERHOOK NEIGHBORS FOR GOOD GROWTH, INC.,

and MADELINE R. ZINKE

Petitioners, Index #6961-0

RJI #01-04-080020

For a Judgment pursuant to Article 78 of CPLR

Assigned Judge:

Hon. Thomas J. McNamara

-against-

TOWN OF KINDERHOOK ZONING BOARD OF APPEALS;

THE WIDEWATERS GROUP, INC. and WIDEWATERS

KINDERHOOK CO., LLC.

Respondents.

______________________________________________________________________________

MEMORANDUM OF LAW

______________________________________________________________________________

YOUNG, SOMMER, WARD, RITZENBERG,

BAKER & MOORE, LLC

Attorneys for Petitioner

Executive Woods

5 Palisades Drive

Albany, NY 12205

Dated: December 3, 2004

by: Jeffrey S. Baker, Esq.

James A. Muscato II, Esq.

TABLE OF CONTENTS

Page

Preliminary Statement.... 1

Argument..... 2

POINT I

PETITIONERS HAVE STANDING TO CHALLENGE THE

DECISION OF THE ZBA TO GRANT WIDEWATERS AN

AREA VARIANCE

2

A. Madeline Zinke, a Member of KNGG Has Standing to Sue 4

B. KNGG as an organization has Standing through Mrs. Zinke 8

POINT II

THERE IS NO BASIS TO DISMISS THE PETITION FOR

FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 9

POINT III

PETITIONERS DID NOT FAIL TO NAME A NECESSARY

PARTY 11

CONCLUSION.............. 13

(i)