850 Route 28 Lawsuit, March 28, 2022

CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO.
INDEX NO. UNASSIGNED

NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/28/2022
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
______________________________________________
In the Matter of
CATSKILL MOUNTAINKEEPER,
WOODSTOCK LAND CONSERVANCY, and
STEVEN MALLOY, Index No.:
Petitioners,
For a Judgment Pursuant to Article 78

Of the Civil Practice Law and Rules
-against-
TOWN OF KINGSTON ZONING BOARD OF APPEALS,

ROBERT COLOGERO, as Code Enforcement Officer,
850 ROUTE 28, LLC, U.S. CRANE & RIGGING, LLC,
and THOMAS AURINGER,
Respondents.
______________________________________________
PETITIONERS’ MEMORANDUM OF LAW

IN SUPPORT OF VERIFIED PETITION AND
MOTION FOR A PRELIMINARY INJUNCTION
BRAYMER LAW, PLLC

Attorney for Petitioners
Claudia K. Braymer, Esq.
Benjamin M. Botelho, Esq.
PO Box 2369
Glens Falls, New York 12801
(518) 502-1213
[email protected]
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 1 of 12
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
TABLE OF CONTENTS
PRELIMINARY STATEMENT ..............................................................................................1
ARGUMENT .............................................................................................................................1
POINT I
ZONING BOARD OF APPEALS’ DISMISSAL OF PETITIONERS'
APPEAL IS ARBITRARY AND CAPRICIOUS AND AFFECTED
BY ERROR OF LAW BECAUSE PETITIONERS HAVE STANDING ...............................1
POINT II
THE CODE ENFORCEMENT OFFICIAL’S DETERMINATION IS IRRATIONAL
BECAUSE A CONTRACTOR’S STORAGE YARD IS NOT AN ALLOWED USE ...........4
POINT III
THE COURT SHOULD INTEPRET THE ZONING CODE
AND GRANT THE PETITION ..............................................................................................7
CONCLUSION .......................................................................................................................10
i
PRELIMINARY STATEMENT
Standing principles are not meant to prevent review of administrative decisions such as
the ones involved here. The Court of Appeals has
“recognized that standing rules ‘should not be heavy-handed’ (Matter of Sun–

Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69
N.Y.2d 406, 413 [1987]). Rather, we have been reluctant to apply these principles
in an overly restrictive manner where the result would be to completely shield a
particular action from judicial review”. Ass’n for a Better Long Island, Inc. v.
New York State Dep’t of Env’t Conservation, 23 N.Y.3d 1, 6 (2014).
The Zoning Board of Appeals’ dismissal of Petitioners’ appeal on the grounds of lack of
standing was wrong, and the merits of the appeal should have been considered, because
Petitioners Catskill Mountainkeeper and Woodstock Land Conservancy (collectively
“Petitioners”) and Petitioner Steven Malloy (“Petitioner Malloy”) have standing and the ZBA
Appeal is meritorious.
ARGUMENT
Point I
Zoning Board of Appeals’ Dismissal of Petitioners’ Appeal is Arbitrary and Capricious

and Affected by Error of Law Because Petitioners Have Standing
Organizations as petitioners have standing when three elements are met:
In the area of associational or organizational standing, the applicable principles

are embodied in three requirements (see, Matter of Dental Socy. v Carey, 61
NY2d 330). First, if an association or organization is the petitioner, the key
determination to be made is whether one or more of its members would have
standing to sue; standing cannot be achieved merely by multiplying the persons a
group purports to represent. Second, an association must demonstrate that the
interests it asserts are germane to its purposes so as to satisfy the court that it is
an appropriate representative of those interests. Third, it must be evident that
neither the asserted claim nor the appropriate relief requires the participation of
the individual members. These requirements ensure that the requisite injury is
1
established and that the organization is the proper party to seek redress for that
injury. Soc’y of Plastics Indus., Inc. v. Cty. of Suffolk, 77 N.Y.2d 761, 775
(1991).
Here, Petitioners have provided detailed allegations that their members have suffered
“injuries that are ‘real and different from the injury most members of the public face’”. Sierra
Club v. Village of Painted Post, 26 N.Y.3d 301, 311 (2015); see Save the Pine Bush, Inc. v.
Common Council of City of Albany, 13 N.Y.3d 297, 301 (2009) (granting standing to people
who use the Pine Bush Area for recreation). Petitioners have shown that they and their
members have been adversely affected by the negative impacts – truck traffic, changes in
community character, noise, and visual/aesthetic impacts – from the activities at the site. See
Affidavits of Kathy Nolan and Andy Mossey sworn to on March 25, 2022, with exhibits (“Nolan
Aff.” and “Mossey Aff.”, respectively), Affidavit of Steven Malloy (“Malloy Aff.”) sworn to on
March 27, 2022, Affidavits of Paul Rubin and Sharon Klein sworn to on March 24, 2022, with
exhibits (“Rubin Aff.” and “Klein Aff.”, respectively); Affirmation of Claudia K. Braymer dated
March 28, 2022 (“Braymer Aff.”) ¶¶ 6, 7. The above-referenced affidavits are submitted
simultaneously herewith and fully incorporated herein.
In addition, Petitioners’ members’ frequent use, enjoyment, and advocacy for protection
of the Bluestone Wild Forest lands and surroundings, and the threatened adverse impacts to those
lands and associated waters and members’ use of those resources, are sufficient to confer
standing to Petitioners. See Braymer Aff. ¶ 7; Petition ¶¶ 53-62; Long Island Pine Barrens
Soc’y, Inc. v. Cent. Pine Barrens Joint Plan. & Pol’y Comm’n, 138 A.D.3d 996, 997 (2d Dept.
2016) (holding that Long Island Pine Barrens Society, Inc. has standing through its member); see
also Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 301 (2009);
Adirondack Council, Inc. v. Town of Clare, 71 Misc. 3d 1215(A) (Sup. Ct. St. Lawrence Co.
2
2021) (finding that Adirondack Council has standing through its member who “led weekly
nature walks” that would be impacted by the noise from the challenged activity).
Moreover, Petitioner Malloy is a member and supporter of Woodstock Land Conservancy
and Catskill Mountainkeeper, lives in close proximity to the Property, received mandatory notice
of the hearing before the Zoning Board of Appeals, and has been aggrieved by the activities at
the Property. See Malloy Aff. ¶4; Braymer Aff. ¶6; Petition ¶¶ 59, 60. He is presumed to have
“standing to seek judicial review ‘without pleading and proving special damage, because adverse
effect or aggrievement can be inferred from the proximity’” of his home to the Property, and he
has demonstrated that he has standing due to the fact that he suffers harm that is greater than the
public at large. Ontario Heights Homeowners Ass’n v. Town of Oswego Planning Bd., 77
A.D.3d 1465, 1466 (4th Dept. 2010) (holding that petitioner who “owns property that is 697 feet
from the property line of the proposed development and 1,242 feet from the edge of the
development” is presumed to have standing).
Since Mr. Malloy has standing, each of the Petitioner groups have standing. See Stony
Brook Vill. v. Reilly, 299 A.D.2d 481, 484 (2d Dept. 2002), as amended (Jan. 9, 2003).
“Moreover, the interests asserted by [Petitioners] are germane to [their] purposes, and neither the
asserted claim nor the appropriate relief requires the participation of the individual members.”
Id.; see also Shinnecock Neighbors v. Town of Southampton, 53 Misc. 3d 874, 880 (Sup. Ct.
Suffolk Co. 2016) (finding that group has standing because “injury to a petitioner’s aesthetic and
environmental well-being, activities, pastimes or desire to use and observe natural resources may
also be found to state cognizable interests for purposes of standing”).
Petitioners’ concerns raised in this proceeding and in the ZBA Appeal are germane to
their missions, are “within the zone[s] of interest to be protected and [they have] standing to
proceed”. Beekman Delameter Properties LLC v. Vill. of Rhinebeck Zoning Bd. of Appeals, 44
3
Misc. 3d 1227(A) (Sup. Ct. Dutchess Co. 2014). Petitioners have a long history of expending
time, effort, and money advocating for the protection of the Bluestone Wild Forest by ensuring
that zoning and environmental laws are upheld. Petition ¶¶ 56, 57; Nolan Aff. ¶¶ 6-18; Mossey
Aff. ¶¶ 4-6; see generally Town of Waterford v. New York State Dep't of Env't Conservation,
187 A.D.3d 1437 (3d Dept. 2020) (finding standing where petitioner “described how she was
intimately involved in the development of a trail system and boat launch along the river and was
similarly concerned by those impacts”). The purpose of the Town of Kingston Zoning Code
(“Zoning Code”) is to “promote orderly growth and development”, “to protect natural and
cultural resources”, and “to protect the community from unsightly, obtrusive or noisome land
uses.” See Zoning Code § 425-3.
Finally, the fact that there may be impacts to many people, in addition to the named
petitioners herein, does not preclude petitioners from having standing in this proceeding and
before the Zoning Board of Appeals. As the Court of Appeals explained in Sierra Club v. Vill.
of Painted Post “[t]hat more than one person may be harmed does not defeat standing”. 26
N.Y.3d 301, 310 (2015). “The number of people who are affected by the challenged action is
not dispositive of standing”. Id. at 311. There can be “multiple residents who are directly
impacted” and who all have standing. Id. at 311. Therefore, petitioners have standing even if
there are other people “who are [also] directly impacted”. Id. at 311.
Point II
The Code Enforcement Official’s Determination is Irrational

Because a Contractor’s Storage Yard is Not an Allowed Use
Petitioners’ ZBA Appeal is meritorious because the Determination was arbitrary and
capricious and affected by errors of law. A “Contractor Storage Yard” is not a term that is in the
4
Zoning Code, and use of the Property for the storage of cranes, rigging, vehicles, heavy-duty
equipment and other commercial and/or industrial uses does not qualify as “contractor’s
equipment storage” as that term is defined by the Zoning Code.
1. A “Contractor Storage Yard” is not an allowed use anywhere in the Zoning Code
The merits of the ZBA Appeal should be granted because a “Contractor Storage Yard”,
which is purportedly allowed by the Determination, is not listed in the Zoning Code table of
permitted uses, nor even mentioned anywhere in the Zoning Code. See Petition Exhibit Q
(Zoning Code Use Table). According to Zoning Code § 425-4 “[a]ny structure or use not
specifically permitted in this chapter is prohibited.” Therefore, a “Contractor Storage Yard”
cannot be allowed on the Property unless and until a use variance and permit(s) are obtained
allowing such activities to take place. (Pursuant to Zoning Code § 425-68, a “use variance” can
be requested from the Zoning Board of Appeals to allow an otherwise impermissible use to be
conducted on a property. See New York State Town Law § 267-a(2)). The so-called
“Contractor Storage Yard” allegedly permitted by the Determination is patently wrong and
petitioners respectfully request that the Court grant the Petition and annul the Determination.
2. Use of the Property does not qualify as “contractor’s equipment storage”
First, the Property is not a residential property; it is a former rock mine and the site of a
proposed steel and concrete manufacturing facility. There are no existing residences shown on
the site plan that was submitted by the applicant for the proposed activities at the Property. In
5
the Mixed-Use Residential-2 (MU Residential-2) Zoning District1, a resident is allowed to store
equipment “on his/her residential property”, as a permitted accessory use that is referred to in
the Zoning Code as “Contractor’s Equipment Storage.” See Petition Exhibit Q (Zoning Code
Use Table). Zoning Code § 425-81 clearly defines “Contractor’s Equipment Storage” as the
“storage of equipment by a contractor on his/her residential property, which equipment is
regularly used off-site in the normal course of the contractor’s business.”
The Property cannot be used for “Contractor’s Equipment Storage” of cranes, rigging,
vehicles and industrial equipment because the property is owned by a commercial entity that
cannot be considered a “contractor”, and cannot store items on “his/or residential property.”
Zoning Code § 425-81. The Property cannot be used for “Contractor’s Equipment Storage” of
Respondent Auringer’s (or the LLC’s) cranes, rigging, vehicles and industrial-sized equipment
because the Property is not his (or the LLC’s) residence or “residential property”. Zoning Code
§ 425-81. The security officer who allegedly stays on the Property to protect the Property and
Respondents 850, LLC’s, U.S. Crane & Rigging, LLC’s and/or Auringer’s (collectively “Private
Respondents) cranes, rigging, vehicles and industrial equipment is not using that equipment in
“his/her” own business as a contractor; he/she is a security officer, not a “contractor”, and he/she
is not operating his/her own “contractor’s business”. Zoning Code § 425-81. A security
officer’s alleged residence on the Property does not erase the fact that the Property is primarily
being used for storage (of enormous specialty cranes, rigging, vehicles and industrial equipment)
of a commercial nature that does not constitute an accessory use. See Rubin Aff. ¶14; Petition
¶80; Nolan Aff. ¶ 23; Mossey Aff. ¶8. In any case, a review of the aerial photos of the Property
1
The Property is located in the Mixed Use Residential-2 (“MU Residential-2”) Zoning District,
not the “MU-1” Zoning District as is incorrectly stated in the Determination (which is yet
another reason for annulling the Determination).
6
prove that storage of cranes and industrial equipment is the primary use of the Property and that
“the business tail is wagging the residential dog, rather than vice versa.” Matter of Lavender v.
Zoning Board of Appeals of the Town of Bolton, 141 A.D.3d 970 (3d Dept 2016).
Zoning Code § 425-81 clearly defines “accessory use” as a “use, occupancy, or tenancy
that is customarily incidental and subordinate to the principal use, occupancy, tenancy, and
located on the same lot or premises”. There is no currently permitted principal use to which the
equipment storage of this scale and nature could be accessory. Therefore, the storage of cranes,
etc. cannot be accessory; it is an illegal principal use. Additionally, the storage of Private
Respondents’ cranes, rigging, vehicles and industrial equipment on the Property is so extensive
and pervasive that it cannot be considered an accessory use “that is customarily incidental and
subordinate to another use”. Zoning Code § 425-81; see Petition Exhibit G (photos of the
Property).
As shown above, the Determination, interpreting the Zoning Code to allow a
“Contractor’s Storage Yard” (a term not mentioned in the Zoning Code) is an erroneous and
incorrect interpretation of the Zoning Code because it is not a principal permitted use, and it is
not a permitted accessory use. Therefore, the Determination by the Town’s Code Enforcement
Officer is arbitrary, capricious, and affected by errors of law and should be annulled.
Point III
The Court Should Interpret the Zoning Code and Grant the Petition
The Court is empowered to interpret the plain language of the Zoning Code; deference to
Zoning Board of Appeals is not needed. As the Court of Appeals explained in Raritan
Development Corp. v. Silva, where, as here, “the question is one pure legal interpretation of
7
statutory terms, deference to the [administrative body] is not required.” 91 N.Y.2d 98, 102
(1997) (internal punctuation and citation omitted); Shannon v. Village of Rouses Point Zoning
Bd. of Appeals, 72 A.D.3d 1175, 1177 (3d Dept 2010) (“[D]eference is not required when
reviewing a pure legal interpretation of terms in an ordinance.”).
This case closely resembles the factual circumstances in the Appellate Division’s
decision in Mack v. Board of Appeals, Town of Homer, 25 A.D.3d 977 (3d Dept 2006). In
Mack, neighboring homeowners commenced an Article 78 proceeding to annul the Town of
Homer zoning board of appeals’ determination that a pest extermination business would be a
permitted use in a residential district as a “home professional office.” Id. at 979. The Town’s
zoning ordinance provided a definition of “home professional office,” which included a general
definition and enumerated multiple examples. Id. at 979. The Appellate Division held that the
Supreme Court properly annulled the zoning board of appeals’ determination that the pest
control business was a permissible use, noting that “deference is not required when the issue is
one of pure legal interpretation of a statute or ordinance.” Id. at 980. The Court distilled the
issue to a simple question of construction—whether the pest control business fit within the
definition of “home professional office” in the zoning code. Id.
Here, the question in front of the Zoning Board of Appeals in the ZBA Appeal was
whether a “Contractor Storage Yard” (a term which does not appear in the Zoning Code) is an
allowed use that is provided for in the Zoning Code—a determination that does not require the
expertise and specialized knowledge of the Zoning Board of Appeals. Raritan Development
Corp. v. Silva, 91 N.Y.2d at 102-103. Petitioners submit that a “Contractor Storage Yard” is not
an allowed use. See Point II.1, above. The corollary question is equally as simple—whether the
crane, rigging, vehicle and industrial equipment storage business is an impermissible use because
it falls outside of the definition of “contractor’s equipment storage” under the plain language of
8
the Zoning Code. This is a matter of pure legal construction and the Court is not required to
defer to the Zoning Board of Appeals on this question of interpretation. Mack, 25 A.D.3d at
980; Blalock v. Olney, 17 A.D.3d 842, 844 (3d Dept 2005); Shannon, 72 A.D.3d at 1177; Matter
of Fruchter v. Zoning Bd. of Appeals of Town of Hurley, 133 A.D.3d 1174, 1175 (3d Dept 2015)
(concluding that whether petitioner’s use of properly complied with the plain language of the
code was an issue of pure legal interpretation). Petitioners submit that Private Respondents’ use
of the Property does not qualify as “contractor’s equipment storage”. See Point II.2, above.
Given that these are questions of pure legal interpretation, remanding this matter to the
Zoning Board of Appeals for further proceedings is unnecessary; a Court decision on the
underlying legal questions should be granted in the interests of judicial economy. Since “there
can be no serious question that the proposed use does not fall within any of the permitted uses
and that its overall nature” shows that it would not be permissible, the Court should permanently
enjoin the use of the Property as a so-called “Contractor Storage Yard” for storage of cranes,
rigging, vehicles, and industrial equipment, and any other unpermitted use of the Property, unless
and until a use variance and permit(s) are obtained allowing such activities to take place. Iza
Land Mgmt. Inc. v. Town of Clifton Park Zoning Bd. of Appeals, 262 A.D.2d 760, 762 (3d
Dept. 1999 ).
9

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CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO.

INDEX NO. UNASSIGNED

SUPREME COURT OF THE STATE OF NEW YORK

For a Judgment Pursuant to Article 78

TOWN OF KINGSTON ZONING BOARD OF APPEALS,

PETITIONERS’ MEMORANDUM OF LAW

BRAYMER LAW, PLLC

PRELIMINARY STATEMENT ..............................................................................................1

the ones involved here. The Court of Appeals has

“recognized that standing rules ‘should not be heavy-handed’ (Matter of Sun–

Petitioners Catskill Mountainkeeper and Woodstock Land Conservancy (collectively

Zoning Board of Appeals’ Dismissal of Petitioners’ Appeal is Arbitrary and Capricious

Organizations as petitioners have standing when three elements are met:

In the area of associational or organizational standing, the applicable principles

simultaneously herewith and fully incorporated herein.

Moreover, Petitioner Malloy is a member and supporter of Woodstock Land Conservancy

development” is presumed to have standing).

also be found to state cognizable interests for purposes of standing”).

uses.” See Zoning Code § 425-3.

The Code Enforcement Official’s Determination is Irrational

equipment storage” as that term is defined by the Zoning Code.

specifically permitted in this chapter is prohibited.” Therefore, a “Contractor Storage Yard”

2. Use of the Property does not qualify as “contractor’s equipment storage”

“storage of equipment by a contractor on his/her residential property, which equipment is

regularly used off-site in the normal course of the contractor’s business.”

As shown above, the Determination, interpreting the Zoning Code to allow a

reviewing a pure legal interpretation of terms in an ordinance.”).

Mack, neighboring homeowners commenced an Article 78 proceeding to annul the Town of

definition of “home professional office” in the zoning code. Id.

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