STATE OF NEW YORK

SUPREME COURT

COUNTY OF COLUMBIA

TRI-SERENDIPITY, LLC,
Petitioner,
For a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules
-against

CI"[Y OF KINGSTON, SHAYNE GALL0, F'ormer l'[ayor,

CITY OF KINGSTON BUiLDING SAFETY DiViSiON
aIWaCITY OF KINGSTON BUILDING SAFETY DIVISION
OF THE FIRE DEPARTMENT ANd CITY OF KINGSTON
ZONING BOARD OF APPEALS alWa CITY OF KINGSTON
BOARD OF APPEALS,

flt^,,_rvlilwl
Respondents

All

Purpose Term
Hon. Henry F. Zwack, Acting Supreme Court Justice Presiding

RJI: 10-16-0022lndex No. 9712-16

Appearances:

Freeman Howard, P.C.

Attorneys for Petitioner

Paul M. Freeman, Etq., of counsel
Post Office Box 1328
Hudson, New York 12534

City of Kingston Corporation Counsel

Attorneys for Respondents
Kevin R. Bryant, Esq., of counsel
420 Broadway
Kingston, New York 12401

DECISION/ORDER
Zwack, J

In this Article 78 proceeding, petitioner Tri-Serendipity LLC seeks review and

vacatur of a determination by the City of Kingston ZoningBoard of Appeals (Board) dated

December 16,2015. That determination ("Determination"), tnade after apubtic hearing,

upheld

May 13,2015 determination issued by the City of Kingston Build Safety Division,

which <ienieci petitioner a buiiding permit and iound thai ihe use oi pe'r.itioer's
located at 106 West Chestnut Street as a boarding house was not

propes

permitted use by zoning.r

The Determination also found that the use as a boarding house was not a lawful preexisting
use, both findings culminating from petitioner's request for a building

argues that the boarding house

is a valid preexisting condition, and respondent's

determination that it was a "nursing home" is

predated the enactment

permit. Petitioner

incorrect-that it's

of the City of Kingston Zoning Law

Determination was arbitrary and capricious such

as

use as a boarding house

and argues that the

to be irrational, and is not supported by

substantial evidence in the record.

In addition to vacatur ofthe Determination, petitioner seeks to have the Court declare
the subject propert-v a preexisting nonconforming use

as-a

boarding house

and grant

an order directing the City issue a special permit recognizing the same and that the
lThe petitioners brought an earlier Article 78 petition to compel the Kingston Building
safety decision to make a determination on the building permit. The Court (Mott, J.) directed the
City io either issue a permit or denial. The denial was the May I 3, 20 1 5 determination.
2

respondents be forever enjoined from declaring the subject property "nonconforming."

Further, petitioner seeks a stay of any enforcetnent of the Determination.

Respondents answer, asserting that the Determination was neither arbitrary nor
capricious, was rationally based upon the evidence in the record, and done in conformance

with the Kingston City Code. Respondent points out that the Determination wa$ based upon
change in use from its historical use as a "health building/boarding house" and the radical
eff,ects this change has had upon the neighboi"hood, as those are set

forth in the record ofthe

public hearings.2

Municipalities have considerable authority

to

implement zoning plans and

regulations, which are afforded a strong presumption of constitutionality (Strnglllows

N.Y. v City ofNew York,91 NTY2d 382,395-396

change |aw, and which
nonconforming use

of

[i998]). A use that predates a zoning

is no longer authorized under that change

a preexisting

while not favored, will be tolerated because of 'constitutional and

fairness concerns regarding the undue financial hardship that immediate elimination

of

nonconforming uses would cause property owner s (Matter of Toys " R" Us v Silva,89 NY2d

4Il,4I7 tl996l). Albeit a preexisting nonconforming use is a legally

rights can be extinguished, whether

if lost by abandonment

protected interest, the

or discontinuance

for

example, if an intention to abandon and the relinquishment of a known right occu ts (Larsen
2Simultaneously with submitting its Answer, the City moved to change venue from
which the Court denies. The Court agrees with petitioner that no
Columbia County to Ulster
compelling reason is set forth which would justiff a venue change, especially since no hearing is
required on this Article 78.
J

vHowland,124NYS2d754,760[SupCt,SuffolkCounty1953]);orwhen
benefit to the public may be derived from the enforcement

"anoveniding

of the amended

zoning

ordinance" (Matter of Schoonmaker HomespJohn Steinberg, Inc. v Village of Maybrook,

I78 AD2d722,725-726l3dDept lgglhorwhenthetermination of apriornonconforming

municipality in a reasonable fashion

use is accomplished by the

mindful of strong public

policy favoring the eventual elimination of nonconforming uses (A[atter of Syracuse

Aggregate Corp v Weise,
a

5l NY2d 278,287 [19S0]). Given the right procedural vehicle,

preexisting nonconforming use may also be terminated using a reasonable amortization

period upon a demonstration that a nuisance and hazard exist from with the use, with
substantial evidence that the use is a public nuisance

for example escalation of fights,

public intoxication, loud noise, iliegally parked vehicles, threats to neighbots (Matter

of

Cioppa v Apostol, 301 AD2d 987 ,989-990 [3d Dept 2003D'

A property owner also has no right to substitute a new nonconforming use in place
of

prior nonconforming use, nor to expand or enlarge such a use, "despite the generic

similarity of the uses" (Matter of Campbell v Rose,22l ADzd 527, 528 [2d Dept 1995]).
Judicial review of

determination by aZoning Board is limited to whether the record

contains sufficient evidence to support the rationality of the Board's decision (Matter
^Sasso

v Osgood,86 NY2d 374,385-386

of

[995]). "It is axiomatic that the court will not

'substitute its own judgment for that of the board or set it aside unless

it clearly appears'to

be arbitrary or contrary to law (Mtter of Fiore v Zoning Bd of Appeals of Town of

Southeast,, 21 NY2d 393,396

282 N.Y.

968], citing People ex rel. Hudson-Harlem Co. v Walker,

400). Interpretation of a zoningordinance by azoning board of appeals will not

be disturbed unless it is unreasonable or irrational (Matter of lwanv Zonng Bd. of Appeals

ofTownofAmsterdam,252 AD29I3,9l5 [3dDept 1998]). Sparseness ofwritten findings

by a board of zoning appeals does not require remittal of its decision to deny request for
zoning permit, where record of proceedings before the board together

with the board's

answer and return in trial court contained suf'ficient facts to permit intelligent review
evidence it relied upon in reaching its determination

even

of

if "the record may suggest that

a conftary conclusion would not be unreasonable" (Matter of Ohrensten v Zoning Bd.

of

Appeals of Town of Canaan" 39 AD3d 1041,1043 [3d Dept 2007])

Alt this said, Petitioner, in order to vacate azoning determination such as is at issue
here, must both establish the existence and legality of the preexisting nonconforming use
before the enactment of the zontngordinance , andthaf ttre Determination was not supported

by sufficient findings of fact or was based upon an enoneous conclusion of law (Costa v
Callahan,41 AD3d 1111 [3d Dept 2007)
There is no dispute that

in

1963, when the city of Kingston enacted its first zoning

ordinance, the subject house was used as a boarding house, which included the owner in
residences, a nurse, offering assistance

with her boarders medical needs. Petitioner's

witness, Carol Gilbert, stated that the house was called the Garry Nursing Home, and "was

nothing like

nursing home you would go into today, it was much like a family home, with

nurse who owned it, and took care of you, saw to people's personal needs, made sure their

medication was taken and they received proper medical attention when required." In 1973,
the properfy was transferred to Hummel Enterprises, Inc. and according to the affidavit

of

Wendy Hummel, the Hummel family continued to operate the subject property as boarding
house, known as the Hummel Community Residence and later the Hummel Home Care
Center, providing room and board to boarders

in

need of some type of assistance. The

subsequent owner, Louise Campos appled f'br a special permit to operate a boarding house

in I996,then being notified by a letter stating because it was preexisting use "no review or
special permit is required."

On March 15, 2004, The Kingston Building Department issued a "Reply to

Certificate of Compliance Research Request" to Louise Campos, advising there were no

open building permits, no violations, and that the property use was "Health
Building/Boarding House." A similar certificate similar was issued by the Building Safety

Division in2006 when the petitioner purchase the subject properfy

language that "[t]he property predates the local

which include added

Zoninglaws of the City of Kingston " and

'uthereisnoCertificateofOccupancyonfile." OnApril 13,20ll,after aninspectionofthe

property, the City of Kingston issued the petitioner an operating permit, with the properfy
to be operated as a "rentaldwelling, with the permit reflecting that the property was a multi-

family dwelling and could house a maximum

throughJune 10,2015.

of

39 people." Similar permits were issued

Petitioner purchased the subject property on June 14,2006, then being operated

Mary Chisholm as a boarding house for up to 39 people and known

as "Chiz's

Heart

Street." Between 2007 and 2011, respondent approved two building permits allowing

petitioner to make various improvements to the property.

plaintiff an operating pennit

as a

In

2011, respondent issued

multi-family occupancy rental dwelling, and in 2013 the

permit was renewed. In Spring 2014, the building becamevacart, sometime thereafter
petitioner began renovations, and in October 20 14 it applied for
a

building permit to relocate

kitchen sink.3 In February 2015,the Ulster Counfy Department of Social Services advised

petitioner that

it would not be paying for the occupants of the residence,

as

it had ben

advised by respondent that the building was unsafe for occupation. On March 18, 2015,
respondent's representatives enteredthe subjectpremises, informedpetitionerto vacate,and

on March 20,,2015 police evicted the remaining tenants. These events resulted in
petitioner's first Order to Show Cause and Article 78 proceeding.
Here, the Court is mindful

" thatthe public policy

is to restrict nonconforming uses

in order to eliminate them" (Verstandig's Florst v Board of Appeals of the Town of

Bethlehem,2zg AD2d 85 l, 852 l3d Dept 19961). The record amply shows that the use of

the subject property, since the enactment of the City's zoning code, has significantly
changed from the prior nonconforming use. For example, the neighbors speaking at the

3which culminated in petitioner bringing the first Article 78 proceeding, and Judge
Mott's Apr1|22,2015 order requiring respondents to decide the application for a building permit.
seeking an order requiring respondents to issue a building permit.
7

public hearings describe the property as no longer a"Health BuildinglBoarding House."

When.the zoning ordinance was first enacted, the owner, a nurse, lived in the home and
attended to her residents medical needs

a custom and use

which continued until at least

1988. Subsequent owners continued the custom and use of residing on the premises with
their boarder (in sum, representing the on site presence of an owner with some degree

of

knowledge, control and accountability for their borders actions vis a vis the other residents

of the neighborhood). Petitioner testitled at the hearing that he does not live at the
premises. The neighbors consistently testified that the boarding house is a public nuisance,

with constant loud noise at all hours of the day and night, fights, and police activity. One
neighbor described

atthe public hearing as "disgustig", noting that the residents were

loud, there was trash everywhere, smoking, prostitutes, and parking issues, not to mention

"cops" at all hours. One neighbor counted 42 individuals living at the house at the time of
the public hearing Other neighbors voiced their concerns about whether it was a transient
home for sex offenders. Several neighbors described their concern for their children and

the dangerousness of the home's location ear a curb with all the traffic generated by the
residents of the house and cabs.a
Here, it can hardly be argued that petitioner has not changed and expanded the prior

custom and usage

of the subject properly. The 1963 City of Kingston Zonng

Code

aSeveral residents were of the understanding that the temporary order issued by the Court

(Mott, J) was still in effect, and that it was not being abided by. Once the Board issued the
determination on December l6,20l5,however, that effectively resolved the prior Article 78 and
the temporary order was no longer in effect.
8

provided that aBoarding House was

"dwelling occupied by one family with three or more

boarders, roomers or lodgers in the same household, who are lodged with or without meals

and in which there are provided such services as are incidental to its use as a temporary
residence for part of the occupants..."

In

1963,the subject property was owner occupied and

provided medical assistance to the boarders. Today, it is owned by anabsentee owner and

it is not "occupied by one family" nor does the owner provide any supportive services to
the lodgers. The record only reflects that at one point during petitioner's ownership, 42
individuals lived in the house andthatthe owners did not.

All said, thepresent form ofownership, occupancy and usage ofthe subjectpremises
is far removed from what it was

in

1963 or

prior. What was a prior use that may have been

harmonious with the residential nature of its neighborhood in 1963, is simply no longer the

case. Respondents have amply demonstrated that form of the historic use of the subject
property was fundamentally different that it is today (Matter of Aboudv Wallace,94 AD2d
87

4, 87 5-87 6

13

dDept 1 9831).

The question remains,

if

respondents have taken the appropriate steps to properly

phase out this nonconfbrming use, or

if any are even required.s

Courts must consider that the "public interest in eliminating nonconforming uses at

a legally opportunist time" should be kept in balance with "the owner's interest in not
having an investment property [or use] abruptly altered or terminated" (Matter of Pelham
sRespondents make little reference to the City Code of Kingston, particularly section 40548, which pertains to the phase out of nonconforming uses.
9

Esplanade v Board of Trustees of Vil. of Pelham Manor, 77 NY2d 66, 72 [ 1990]). This
proceeding has as its genesis a request by petitioner for a building permit to move the
location of a kitchen sink

which was denied because the building was

use (a boarding house not permitted in the residential

nonconforming

district). Petitioner argues that the

City is estopped from now asserting that the properly is not

boarding house

because

it

classified it as such consistently since the 1963 enactment of the zoning ordinance and as
recently as 2015. The argument fails. However respondent classified the property post
Ig63,estoppel cannot be invoked against a municipality to prevent it from discharging its
duties under

its zoning ordinance nor for the purposes of compelling it to ratify

administrative error

66sysn

an

where there are harsh results" (Matter of Parkvew Assoc. v

City of New York, 71 NY2d 274,252 U9S8l). Simply stated, any prior elroneous
classification

of use does not compel the grant of another (Matter of Rudolf

Stener

Fetlowship Found. v De Luccia,90 NY2d 453,460 llgg7l). Further, as petitioner never

applied for a variance, it cannot argue that the Determination constitutes an unjust taking

(Matter of Parlauood Associales, 71 NY2d at283.

Whiie

it is easy for petitioner to characteri ze the City of Kingston's abrupt

termination of the pre existing non-conforming use as unreasonable, without it asking for
a use variance, there was little,

if

anything, that respondents could have done to give

petitioner time to readjust its use into something more harmonious with the residential

10

neighborhood.6 Petitioner made no application for

use variance, and the Court makes no

determination this issue.

Lastly, the City Code of Kingston includes

nonconforming uses

provision for the phasing out of

( Chapter 405.45121 Termination), which

provides that

"In

any

residence district, any nonconforming use of buitdings which is not permitted under the

provisions of this chapter

continued for

in any other residence or shopping center district may

be

period of ten years after the effective date of this chapter t 1984] or 30 years

after the initial establishment

of such use..." The chapter cites as its reasoning for

the

termination that "each nonconforming uses...is deemed sufficiently objectionable,

undesirable and out of character in the district in which such use is located as to depreciate
the value of other property and uses in the district..." and is to be terminated to "promote

public health, safety and welfare and the most desirable use of the land'..'."
Accordingly, the Court finds no basis tovacatethe first portion ofthe Detennination
which finds that the subject properfy is no longer

pre existing non-conforming use in the

residentially zoneddistrict. While the Determination fails to set forth the specific factors
used by the Boarci to come to its conciusion, the record is

sufficiently detaited, and thus the

Court can conclude that the determination is rationally based. Further, the Kingston City
code provides for the termination of the use 30 years after the enactment of the code, which

uFor

example, a use variance for a multi-family, owner occupied building, towards

reasonably accommodating the City's concerns, including complaints of the neighbors, and also
continue income generation for petitioners. the City's concern
11

was 1984, making a20I4 terminationdate, or anytimethereafter,

lawful.

vacate, as inaccurate, the Board's further finding that, even

if

The Court does

the house was

nonconforming use, it nonetheless was not a lawful use because it had no permit or license.

"It is now well

settled law that a use which is otherwise lawfully mairtained may be

continued as a nonconforming use although the user failed to procure or renew a license,
certificate or other permit required by law. ..the failure to obtain

license does not render the

use unlawful in the sense intended by zoning ordinances which preserve existing lawful

uses"(Costav Callahan,4l AD3d 1111, 1114 [3dDept 2007D.

Accordingly, it is

ORDERED, that the Article

78

petition is granted to the extent only that the Board's

determination that a nonconforming use must obtain a permit or license

to operate

is

vacafed; and it is further

ORDERED, that the December 16,2015 determination of the City of Kingston

ZoningBoard of Appeals is otherwise afinned; and it is further

ORDERED, that respondent's motion to transfer venue from Columbia County to

Ulster County is denied as academic.

T2

This constitutes the Decision and Order of the Court. This original Decision and
Order is returned to the attorneys for the Respondents.
Supreme Court Clerk for transmission to the County
and Order shall not constitute entry or

All other

papers are delivered to the

Clerk. The signing of this Decision

filing under CPLR 2220. Counsel is not relieved

from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

June 14,2016
llioy, New York

Dated:

J
Henry F. Zwack
Acting Supreme Court Justice

Papers Considered:

4
5

Notice of Petition dated January I 5, 20 I 6; Verified Petition dated January 1 5,

20|6;Affrdavit of Joseph S. Sangiovanni sworn toJanuary l4,20I6,together
with Exhibits "A" through "QQ"; Memorandum of Law dated lanuary 15,
2016; Affidavit of Paul M. Freemen, sworn to January 15, 2016, with
Exhibits "4" through "H;"
Trarrscript of Fubtic Fiearings;
Verified Answer undated; Memorandum of Law in Opposition to Verified
Petition dated March 24,2016;
Notice of Motion to Change Venue, undated, Affidavit in support of venue
change by l(evin Bryant, dated March 23,2016;
Affrdavit of Paul Freeman dated April 12,2016 in opposition to motion to
change venue.

Verified reply dated April 18,2016; Affidavit of Patricia Wheeler sworn to

on April IB,20l6,Affidavit of Timothy Wheeler sworn to on April 18,2016,
Reply Memorandum of Law.
T3