THE COMPREHENSIVE PLAN AND ZONING
An obscure document known to city officials but largely unfamiliar to the general public could spell trouble for the planned Kingstonian multi-use development.
Kingston’s Comprehensive Plan, a 125-page document revised and updated in 2016, calls for the adoption of “Green Building” standards and the inclusion of affordable housing in all new developments.
Given the unambiguous wording of those sections, the developers’ failure to include to green construction and affordable housing in plans for the Kingstonian may violate state law, which calls for zoning codes to be in accordance with the relevant district’s comprehensive plan.
The lack of affordable housing and green construction are among objections cited by the public to current plans for the development.
The Kingstonian’s developers are counting on a narrow interpretation of city zoning code to build exclusively market rate housing while adhering to old building codes that fail to measure up to newer energy-saving standards.
Below is the section of The General City Law of New York State requiring that code conform with the comprehensive plan and that “capital projects of another government agency” take the comprehensive plan into consideration. The second portion relates to the Kingstonian because the project has been awarded $6.8 million in grants from the state, including $3.8 million as part of the Downtown Revitalization Initiative (DRI).
New York Consolidated Laws, General City Law – GCT § 28-a. City comprehensive plan
- (a) All city land use regulations must be in accordance with a comprehensive plan adopted pursuant to this section.
(b) All plans for capital projects of another governmental agency on land included in the city comprehensive plan adopted pursuant to this section shall take such plan into consideration.
Specifically, the Comprehensive Plan asks the City’s Planning Board “to assure that new development projects reflect the community’s desires for a low carbon/low emissions future” and then calls for the creation and adoption of “Green Building” standards.
The Comprehensive Plan’s Strategy 1.1.2 would require affordable housing for any new or expanded residential building or development project. It says the City should consider expanding the number of projects that must provide a “fair share” of affordable housing. Currently, affordable housing is only required for projects taking advantage of the mixed-use overlay district provisions. The City could require an affordable set aside or fee-in-lieu for any substantial new residential development and should target the goal of equitably distributing affordable housing throughout the City.
No “land use police” are waiting in the wings to wag a finger at the developers, and such disputes are settled in civil lawsuits brought under Article 78 of the New York Civil Practice Law and Rules. This allows citizens to challenge planning and zoning permits, and case law looks closely at whether those permits and decisions are rendered in accordance with a comprehensive plan.
Also possibly running afoul of the law is the move to rezone of one of the parcels for inclusion in the Mixed Use Overlay District, or MUOD. The problem in this case might be spot zoning, which generally refers to the rezoning of a lot to benefit “a single development interest.”
A hearing was held August 12 for public comment on the request to rezone the parcel, which is on the northeast corner of the proposed site and was home to the former Elena’s Diner.
The developers says spot zoning is not an issue because that parcel is contiguous with the MUOD. However, this document from New York State also quotes a court case that found such re-zoning to be illegal when it deviated from “a well-considered and comprehensive plan calculated to serve the general welfare of the community.”
If loopholes in the MUOD zoning itself deviate from Kingston’s Comprehensive Plan, it stands to reason that doubling down on the deviation by adding lots to the MUOD would also be illegal.