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ARTICLE 78
UPDATES
ARTICLE 78
SAVE OUR ZONING CODE
JUNE 23, 2005
Court Rules on Article 78
We have been advised this evening by our
attorney Jeff Baker that the Supreme Court in Albany County has ruled against
KNGG in the matter of the Article 78 filed against Widewaters and the Town of
Kinderhook. We have no other details at this time.
The following statement went to the press tonight:
Naturally we are disappointed. However we
still believe that filing the Article 78 was the right thing for KNGG to do.
The standard for overturning a ZBA decision is extremely high. We always
recognized that it would be difficult for us to prevail in this challenge even
though we believe the ZBA erred in its application of the law.
This decision only reinforces the need to amend our zoning code to correct
poorly drafted provisions and ambiguities. The Planning Board and other town
officials have identified many problems in our code as written. Until the
problems such as these are corrected we may continue to see buildings
constructed within the Town in a way that satisfies the developers’ interests
and budgets and not what’s best for our community.
JUNE 29, 2005
TOWN
OFFICIALS WANT KNGG TO PAY COSTS
Just as the community was beginning to heal it would
after the long and drawn out Widewaters conflict, our Town Officials have
unwisely decided to reopen these wounds. We are disappointed at this hasty and
poorly thought-out decision on their part.
MARC. I GOLD
ATTORNEY AT LAW
P O BOX 510
KINDERHOOK, NEW YORK 12106
TEL: (518) 758-2100
FAX: (518) 758-2101
Honorable Thomas J McNamara Acting Supreme Court Justice
65 South Broadway, Room 210 Saratoga Springs, New York 12866
June 27, 2005
Re:Kinderhook Neighbors, et al vs.. Town of Kinderhook ZBA, et al Index No.:
6961-04; RJI No.: 01-04-080020
Dear Judge McNamara:
I have received your- letter- and judgment dated June 21,2005 and will
proceed to enter the same forthwith,.
One other thought has come to mind, and thus the purpose of this letter,..
The Town of Kinderhook, as required by the Civil Practice Laws and Rules,
undertook to provide the transcript, entire record, and all of the proceedings
before the Zoning Board of Appeals, resulting in a cost to the town of
$2,133-43.
A copy of the bill for Camelot Legal Services and the town's check in payment
thereof are enclosed herein.
In the Town of Kinderhook replies to this petition, it requested, among other-
things, in the ad damnum clause, the award of costs of this proceeding.
I therefore, on behalf of the town of Kinderhook, respectfully request that you
award to the town- as part of said demand, reimbursement from the petitioner in
the sum of $2,133,.43..
Very truly yours,
Marc I. Gold
MIG:nms
Enclosures
Cc: Jeffrey S. Baker, Esq.
Young Sommer LLC
Executive Woods
Five Palisades Drive
Albany, New York 12205
John D. Hoggan, Jr., Wsq.
LeBoeuf, Lamb, Greene & MacRae, LLP
99 Washington Avenue, Suite 2020
Albany, New York 12210
KNGG RESPONSE:
KNGG is disturbed that Town Officials would try to add penalties
after the judgment has been passed down in their favor. It appears as though
they're out to get us.
Our attorney's rebuttal letter is below.
YOUNG, SOMMER ... LLC
YOUNG, SOMMER, WARD, RITZENBERG, BAKER &
MOORE, LLC
COUNSELORS AT LAW
ALL WRITTEN CORRESPONDENCE TO:
EXECUTIVE WOODS, FIVE PALISADES DRIVE, ALBANY, NY 12205
PHONE: 518 438-9907 - FAX 518 438-9914
June 28, 2005
Hon Thomas J. McNamara
Acting Supreme Court Justice
65 South Broadway, Room 2 1 0 Saratoga Springs, New York 12866
RE:
Kinder hook- Neighbors, et. al v Town of Kinder hook ZBA, et al, Index No.
6961-04, RENO. 01-04-080020
Dear, Judge McNamara:
As you know, we represent the Petitioners in the above referenced action and are
in receipt of the letter from Mark Gold, dated June 27, 2005 requesting costs in
the sum of $2,133 43.
The Court has already decided that the Town is not entitled to an award of
costs against the Kinderhook citizens group and there is no reason to re-visit
this issue. The Court's Judgment dated June 21, 2005 did not award costs to
Respondent Town, and thus the request by the Town has already been denied.
Moreover, even if the Town were entitled to statutory costs under the Civil
Practice Law and Rules, the Town would only be entitled to nominal costs under
CPLR 8201 in the amount of' $200.00. The Town's request for over $2,100 is
unreasonable and they have offered no justification under the CPLR for any costs
other than those specifically provided for in CPLR Article 82.
We respectfully oppose the Town’s renewed request for costr and feel that the
Court’s Judgement of June 21 has already decided that the Town is not entitled
to costs.
Respectfully yours,
James A. Muscato II
Jeffrey S. Baker
JAN/alm
CC: Mark I. Gold, Esq.
John D. Hoggan, Esq.
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