SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER HILLARY HARVEY, OWEN HARVEY, and DEANNA BAUM, Petitioners /Plaintiffs, DECISION/ORDER -against- Index No. 16-3285 RJ.L No. 55-16-2070 Richard Mott, J.C. ZONING BOARD OF APPEALS OF THE CITY OF KINGSTON; JOSEPH SAFFORD, IN HIS CAPACITTY AS ZONING ENFORCEMENT OFFICER FOR THE CITY OF KINGSTON; and THE IRISH CULTURAL CENTER HUDSON VALLEY, INC, Respondents/Defendants. Motion/Petition Return Date: March 16, 2017 APPEARANCES: Petitioners/Plaintiffs: Warren S. Replansky, Esq. Warren S. Replansky, P. C. PO Box 838 60 East Market Street Rhinebeck, NY 12572 Respondents/Defendants: Kevin Bryant, Esq. Corporation Counsel City of Kingston 420 Broadway Kingston, NY 12401 Ronald S. Pordy, Esq. Law Offices of Ronald S. Pordy 159 Green Street Kingston, NY 12401 Mott, J. Petitioners/Plaintiffs (hereinafter, “Petitioners") seek, inter alia, to annul Respondent/Defendant Zoning Board of Appeals of the City of Kingston’s (hereinafter, “ZBA") appeal determination interpreting the Kingston City Code (hereinafter, “KCC’)which concludes that Respondent/Defendant The Irish Cultural Center Hudson Valley, Inc.'s (hereinafter “ICCHV") property has direct frontage on West Strand, in this combined Article 78 proceeding/declaratory judgment action. Respondents /Defendants oppose. Background ICCHV seeks to construct and maintain a cultural center, including, inter alia, a restaurant, art studios and a theater in the City of Kingston’s (hereinafter, “City") RT Rondout District (hereinafter, “RT District"). A portion of said District permitting such uses is circumscribed as follows: “Broadway /West Strand area: Buildings existing as of the date of adoption ... as well as buildings subsequently erected, which have direct frontage .... on the West Strand may be used for the following purposes and no other...” KCC § 405.19(B)(1) (hereinafter, “KCC B(1)”) Frontage is “the linear distance of a lot along the street line,” and a street line is “the dividing line between a lot and a street.” KCC § 405.3. A street is “any public street ... lane or way set aside or used as a right-of-way, which affords legal access to abutting property.” Id, Finally, a sidewalk is defined as “the distance from the property line of any premises to the curb line.” KCC § 355-17, ICCHV's property is comprised of four unimproved lots. It is bordered on the north by Abeel Street and on the south by Company Hill Pati (hereinafter, “CHP”), a City-owned stone path/pedestrian walkway which converges with West Strand. Petitioners are neighboring landowners who requested that Respondent/Defendant Joseph Safford in his capacity as Zoning Enforcement Officer for the City (hereinafter, “ZEO") determine whether the KCC permits ICCHV’s proposed use. The ZEO determined that the cultural center is permitted because the subject property abuts West Strand, citing KCC (B)(1), but did not specifically address the issue of the proposed pub as part of same. 2On September 20, 2016 the ZBA held a public hearing at which the ZEO and others testified and the public, including counsel for Petitioners and ICCHV, intervened. On October 18, 2016, the ZBA noted it was awaiting requested information to finalize its determination. At a November 15, 2016 meeting, the ZBA read and voted upon a proposed resolution upholding the ZEO determination for modified reasons stated in an attached decision (hereinafter, collectively, “Resolution”) after having received legal advice in a closed session and “reached a consensus.” The ZBA concluded that: 1. The CHP isa city owned path, constituting a sidewalk as defined in KCC § 355- 17; and that 2, Based upon the KCC’s definition of street and frontage the subject property has 34.1 feet of direct frontage along West Strand by virtue of the confluence of CHP with West Strand along the 104 fect of the southern property line. ‘The ZBA further recommends that the City Planning Board condition any approval on locating the main entrance on West Strand to ensure full compliance with the intent of said section, which is to concentrate access to commercial activities to that area of the RT District. The Resolution relies upon the following: a. City files and records concerning the subject property; b. Various maps, surveys, deeds and historic information relating to the premises and its surrounds; November 2, 2016 letter from Christopher J. Zell, P.L:S.t (hereinafter, “Pell letter”), and the documents submitted therewith; d. All the submissions by the parties hereto and to the ZEO, the public hearing testimony and the ZBA’s personal knowledge of the subject premises and its surrounds. 4 professional Land Surveyor.Article 78 Petition Parties’ Contentions Petitioners allege, inter alia, that the ZBA’s determination is arbitrary and capricious and constitutes a denial of due process because it relies primarily upon the Pell letter submitted after the public hearing closed, thereby precluding public comment. Further, they claim that the ZBA’s determination is inadequately explained and inappropriately relies upon its members’ own knowledge. In addition, they claim that the ZBA’s conclusions conflicts with the deed description of a neighboring property that borders both CHP and West Strand. Finally, they maintain that the ZBA violated the Open Meetings Law by reaching a determination in closed session after receiving substantive advice from its attorney, who drafted the Resolution prior to the public vote. The ZBA contends that the determination is rationally based, that the KCC B(1) refers to a West Strand area and not just West Strand and that the ZBA’s determination is not based primarily on the Pell letter, but rather upon testimony, various maps and deeds and the conflicting arguments of the parties, Furthe insists that the ZBA did not misinterpret the plain language of the local zoning law or violate the Open Meetings Law. ‘The ICCHV reiterates the ZBA’s arguments, elaborating on the history of the CPO and its nature as a public path as reflected in deeds of same to the City. Due Process A zoning board is permitted to consider its members' personal knowledge and observations ofa site under review but not additional information received after public hearings are closed if it denies the petitioner an opportunity to rebut new information Stein v Bd. of Appeals of Town of Islip, 100 AD2d 590 [2d Dept 1984] (board may act upon its own knowledge, so long as sets forth facts known to its members but not otherwise disclosed); 4Hampshire Mgt. Co. v Nadel, 241 AD2d 496, 497 [2d Dept 1997]. Further, a zoning board of appeals has the legal right to conduct its own investigation, Silveri v Nolte, 128 AD2d 711, 711 [24 Dept 1987]. Here, there is no indication that the Pell letter or the ZBA members’ personal knowledge of the area constitutes new information or is improper. The ZEO testified that one-third of the 104-foot southern boundary line bordered West Strand based upona comparison of municipal mapping and Ulster and City geographic integration system (GIS) mapping available online. Further, the Pell letter comes from a disinterested professional land surveyor and consists of two sentences corroborating the ZEO’s conclusion based upon a review of tax maps and deeds. Indced, Petitioners had every opportunity to offer an expert interpretation of publically available records and an examination of the situs, but, failed to do so. Accordingly, the Court finds no due process violation by virtue of the ZBA’s post-hearing efforts to verify the import of the existing evidence. Open Meetings Law ‘The courts have discretionary power, upon good cause shown, to void any action taken by a public body in violation of the Open Meetings Law. Cunney v Bd. of Trustees of Vil of Grand View, 72 AD3d 960, 961-62 [2d Dept 2010] citing POL § 701(1); Frigault v Town of Richfield Planning Bd., 107 AD3d 1347 [3d Dept 2013] (technical violation of the Open Meetings Law does not void the action, but merely renders it voidable upon good cause). Here, the ZBA voted on the Resolution at a public meeting following a public hearing and reached a determination based upon publically available information referred to by ‘witnesses and in submissions, some of which are included in the record. Under these circumstances, even given a formal violation of the Open Meetings Law by consulting withPell without resolving to do so in a public meeting or by deliberating, after an attorney consultation, in a closed meeting, clearly these actions were not calculated to minimize public awareness of the issues and, therefore, no good cause exists to void the result. Halperin v City of New Rochelle, 24 AD3d 768, 777 [2d Dept 2005] (consultation with attorneys or retained experts in executive session without a quorum not per se violation of, Open Meetings Law). CE, Previdi v Hirsch, 138 Misc 2d 436 [Sup Ct 1988]; cf. Gordon v Vil. of Monticello, Inc, 87 NY2d 124, 128 [1995] (closed session designed to circumvent the Open Meetings Law quorum requirement voided the determination). Judicial Review Judicial review is restricted to the administrative hearing record and limited to determining whether the action is illegal, arbitrary, capricious or, alternatively, rationally based, Sea Cliff Equities, LLC v Bd. of Zoning Appeals of Inc. Vil. of Sea Cliff, 106 AD3d at 924. Featherstone v Franco, 95 NY2d $50, 554 [2000] and the reviewing court is precluded from substituting its judgment for that of the administrative actor. Mallicky New York State Div. of Homeland Sec. and Emergency Services, 43 NYS3d 183 [3d Dept 2016]; MLB, LLCv Schmidt, 50 AD3d 1433 [3d Dept 2008} (standard of review of planning board action). Here, the detailed record provides a rational basis for the ZBA’s determination, Indeed, Petitioner’s challenge consists primarily of its contrary interpretation of the KCC, where the ZBA is the entity authorized to interpret same and the latter’s analysis is supported by the plain meaning thereof. General City Law § 81-b (2); Tall Trees Const. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86 [2001] (zoning boards of appeals were created to interpret, perfect and insure the validity of zoning through the exercise of administrative discretion). Accordingly, the ZBA determination must be upheld.Declaratory Judgment Petitioners seek a declaratory judgment that a pub is not an authorized use of the subject property upon the ZBA’s determination KCC § B (1) applies thereto. ‘The ZBA contends that such a judgment is inapposite because it has not ruled on that issue and such a determi n is pre-mature because the SEQRA and site plan reviews are incomplete. ICCHV also claims the issue is pre-mature and that the proposed pub is a permitted use because it is associated with the restaurant and therefore, not prohibited as a drinking establishment. See, KCC § 405.3 (a drinking establishment is any premises whose principal business is the sale and on-site consumption of alcoholic beverages). ‘A declaratory judgment action requires a justiciable controversy and generally one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law. Ford v Snashall, 275 AD2d 493 [3d Dept 2000}. Exceptions include when the action is challenged as unconstitutional, resort to an administrative remedy would be futile or cause irreparable injury. Id. cf. Subdivisions, Inc. v Town of Sullivan, 86 AD3d 830, 833 [3d Dept 2011] (alternative remedy an exercise in futility). Here, the City Planning Board has not referred the issue to the ZBA or approved the site plan. Accordingly, administrative remedies have not been exhausted and there is no indication that such remedies would be futile or cause irreparable harm. MLB, LLCV Schmidt, 50 AD3d 1433. Moreover, the Court declines to anticipate the judgment of those authorities.Accordingly, the petition and the complaint are dismissed. Any remaining contentions have been rendered academic by this determination or considered and determined to lack merit. This constitutes the Decision and Order of this Court. The Court is forwarding the original Decision and Order directly to the Respondent ZBA, who is required to comply with the provisions of CPLR §2220 with regard to filing and entry thereof. A photocopy of the Decision and Order is being forwarded to all other parties who appeared in the proceeding. All original motion papers are being delivered by the Court to the Supreme Court Clerk for transmission to the County Clerk. Dated: Hudson, New York May 9, 2017 RICHARD MOTT, ].S.C. Papers Considered: 1. Notice of Petition, Verified Petition and Memorandum of Law of Warren S. Replansky, Esq. dated December 15, 2017 with Exhibits A-N; 2. Verified Answer and Memorandum of Law of Ronald S. Pordy, Esq., with Exhibits A-D and Affidavit of William Kearney, dated February 22,2017; 3. Verified Answer and Memorandum of Law of Kevin R. Bryant, Esq, dated February 22, 2017 with the Record consisting of 230 pages, Affidavit of James Rodden, dated February 21, 2017; 4. Reply Memorandum of Law of Warren S. Replansky, Esq. dated March 13, 2017.