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ARTICLE 78
WHY ARTICLE 78 TO SAVE OUR ZONING CODE THE ONLY APPEALS PROCESS AVAILABLE TO KNGG ANSWERS TO QUESTIONS YOU MAY HAVE
WHY WE FIGHT
We are fighting to save our new zoning code from being watered down to where the code will no longer apply to design standards on future big box development.
“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.” --Memorandum of Law
KNGG Filing November 1, 2004 --By Jeffrey S. Baker, Esq. and James A Muscato III, Esq. Attorneys at Law. Young Sommer . . . LLC, Albany New York A Please help keep this ZBA from watering down our code by supporting our Article 78 filing. We must keep raising funds to pay for continued legal action. If you haven’t sent in a check to support our claim for justice, please do it today. We are depending on your generosity to help save our zoning code.
KNGG sincerely believes that what we experienced at
Town Hall on September
23rd was a sham and
unjust - not because we did not get what we wanted
- but
because the process was
grossly flawed. A A Filing Article 78 will show
our public officials that they must enforce our zoning
code,
and to recognize that the
bucolic, rural and historic beauties of Kinderhook are an asset to
our Town
that need taking care
of. We
are very much aware
that
there
is a
need for
growth,
but it must be
good
growth, smart
growth, growth
that makes sense for our
community, our way of life and not
just for the developer's deep pockets.
WHAT IS ARTICLE 78? The section of the law governing judicial review of a governmental action in NY State. The Court reviews the government action (ZBA) to determine if it was lawfully issued, supported by substantial evidence and was not arbitrary or capricious. In New York Supreme Court a judge will review our administrative case, scrutinize the ZBA’s actions and decisions, and if found necessary, will reverse the decision. A WHAT CAUSED KNGG TO ENTERTAIN AN ARTICLE 78 ACTION? The disregard of proper legal procedures by the Kinderhook Town ZBA in approving the variance Widewaters requested. However, we are not just pursuing legal technicalities, but are objecting to a process that was significantly and fundamentally flawed. A WHO WILL THE SUIT BE FILED AGAINST? The Kinderhook Town ZBA and the Widewaters Group. (This action has nothing to do with the Town Planning Board.) A SHOULD CITIZENS SUE THE TOWN WHERE THEY LIVE? There is no other alternative in NY State. In this case, the Town isn't paying legal fees. The developer is picking up the tab. KNGG is not suing the Town for damages. Article 78 is the only appeals process available to citizens groups in NY State to seek justice.
Precedence tells us if the new zoning code is not enforced now, it will be difficult to enforce it in the future. We must make this stand now or lose our credibility. This is not about one project. It is about the future look of Kinderhook and the ability to enforce our codes.
This ZBA variance approval will determine what the next projects will look like. This ZBA is essentially determining Kinderhook's look of the future. A WHY IS IT NECESSARY FOR KNGG TO TAKE THIS ACTION? If KNGG does not pursue this legal option it will indicate to our public boards and officials that we, the citizens, condone their sloppy and ill-considered behavior. If we fail to demand through this prescribed legal action that our boards comply with the regulations they have sworn to uphold, we will give them the leeway to continue to ignore or ride roughshod over correct procedure.
WHAT ABOUT PRECEDENCE? If KNGG did not challenge this ZBA area variance
determination, the ZBA would be allowed to weaken our zoning code
severely and would be given a free hand in “rewriting” the
zoning code. The ZBA's job is to enforce the code, not rewrite it.
KNGG challenges this variance determination.
Because of precedence the ZBA would have to give the same variance to all big
box entities in future. This will weaken our zoning code
forever. By law, precedence rules on ZBA area variance
determinations. The ZBA will be reduced to rubber stamping variance
approvals on architectural design.
WHAT ARE THE CHANCES OF SUCCESS? The ZBA process of determination was significantly and fundamentally flawed and there were several legal technicalities in the ZBA’s procedure. We have a good chance. WHAT COULD KNGG GAIN BY WINNING? This action will lay the
foundation not only for KNGG but for the Town as well. We will gain
better respect for the
ability to correct the procedure of the ZBA and an increased
understanding of the need to uphold the requirements for granting variances.
WOULD KNGG GAIN
ANYTHING IN LOSING? Yes. We will have
demonstrated that Kinderhook citizens will pursue more responsible actions by
our officials to the fullest allowed extent. It will send a strong message to
our officials that we are serious and that we intend to continue to pursue our
mission.
HOW MUCH IS THIS ARTICLE 78 ACTION EXPECTED TO COST? Because of
extensive pre-filing date legal work, Article 78 is estimated to cost between
$15,000 and $20,000. WE ASK YOU TO CONTRIBUTE GENEROUSLY SO WE MAY CONTINUE.
NO LONGER A QUESTIONOF A FLAT ROOF vs A HIP ROOFIt is a question of whether or not our public boards are following SEQRA and
obeying
the law in
making a determination.
It is a question of justice and
integrity. It is a question of PRECEDENCE. It is a question of not weakening our zoning code. It is a question of taking a stand on what we believe.
This Article 78 Action will cost dearly. To meet our GOAL and to keep us going, WE NEED YOUR HELP NOW. Please help us keep Kinderhook's character by fostering "good growth." PLEASE MAKE YOUR CHECK PAYABLE TO KNGG AND MAIL TO Kinderhook Neighbors for Good Growth, Inc. P. O. Box 424
Kinderhook NY 12106
KNGG is a 501[C] [3] not-for-profit Corporation. Your contribution to KNGG is tax deductible as allowed by law.
Your contribution will help us continue to fight badly planned development, and to work with our local officials to succeed in our mission.
You'll be investing in enforcement of our zoning code. You'll be investing in a better Kinderhook. To save our New Zoning Code from being watered down, please send a check today.
We deserve a Hannaford designed as well as what Hannaford put in Redhook.
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