The Kingstonian: A Public-Private Spin Campaign
A COORDINATED CAMPAIGN TO GIVE DEVELOPERS EXACTLY WHAT THEY WANT
Note: This piece contains information about the legal strategy employed by the developer’s attorney, but otherwise condenses much from other articles. However, it presents the issues in such a way as to emphasize the multi-pronged, co-ordinated campaign to give the developers exactly what they want. For a fuller understanding of “neg decs” and “pos decs” see SEQRA sidebar.
August 14, 2019
Kingston, NY – For a long time, Kingston’s government has tried to figure out what, exactly, should be done with the empty lot on N. Front Street. Home to a Montgomery Ward department store until 1970, a period when retail was abandoning downtowns in favor of the mall, the site then became a three-story parking garage until 2008, when it had to be torn down after chunks of concrete fell from the second floor roof. During his tenure, former mayor Shayne Gallo tried, unsuccessfully, to lure developers to the site. Earlier, in 2005, plans for a 12-story, 214-unit condominium tower with commercial space and underground parking were met with strong objections in the community, and the project was dropped.
But in 2017, with the DRI grant on the table, Opportunity Zones about to become law and a new developer expressing interest, it looked like the stars were lining up again. This time, the powers that be were determined to not let the chance slip through their fingers.
Kingston puckers up to kiss Developer Prince Charming
The evidence points to a comprehensive strategy put in place early on that included a campaign of disinformation; threats to pull the project; public attacks on citizens who disagreed; attempts to muzzle dissenters on local commissions, purging them, then burying their statements; establishing a rubber stamp oversight committee; and lastly, laying out a legal strategy to undercut state statute via case law – but then flouting the guiding principles and criteria that justified the decision.
The big lies about parking, jobs, eco-building, community support.
Parking: The garage will not create the promised space. See Mirage for the Math-Challenged, and enjoy watching Planning Board Chairman Wayne Platte and project engineer Dennis Larios use fancy language to dance around this inconvenient truth.
Jobs: The developers say their project will create jobs. Unless they promise to rent the commercial space themselves and commit to hiring after the construction phase, there is no guarantee this claim is true. But there may be a guarantee that it is false. Right now, storefronts lie empty on Kingston’s Wall Street, with asking rents north of $12,000 a month in some cases, testament to global financialization, quantitative easing and misallocation of investments. Kingston’s City Council and the Planning Board cannot single-handedly undo four decades of post-Keynesian neoliberal greed and financial distortion, but they do not have to buy into the lie. See Why Should You Care? for more on how the Kingstonian might affect you.
Eco-building: See Greenwashed sidebar, where the developer promises to consider outdated building standards that show modest energy efficiency gains over standards enacted when nobody cared.
Community Support: The developers claim to have overwhelming support from the community and that a vocal minority is trying to destroy the project. The evidence is underwhelming. Of the public comment letters, concealed stored somewhere in the City’s maze-like website but available here in Reports & Visuals, about 27 were in support of the project or called for a neg dec, which is what the developers want. If signers of the Landmarks Commission were included in the pos dec camp, the number is above 30, and of those, only a few were outright opposed to the project, while most favored the idea of building something but simply wanted a pos dec or modifications of the plan as it stands. Meanwhile, on kingstoncitizens.org, the brainchild of Rebecca Martin, a petition garnered 219 signatures in favor of a pos dec.
Mayor Noble himself acknowledged the need for public support. In September 2017, he and and the developers held a press conference to announce the project. At 21:30 Noble said the plan needed community buy-in. “I think we have it for the parking,” he joked. (Sadly, the real joke is on anyone who believes the parking fairy tale. See sidebar.) At the time, the developers offered few details. But the Mid-Hudson Progress Report, released only a few weeks later, already featured renderings of the Kingstonian. Why the delay in letting the public know, unless it was part of a larger strategy?
Threats to pull out. In a Facebook post April 2, engineer Dennis Larios posted that the developers would walk away if they received a pos dec. (See SEQRA sidebar.) Even though the developers themselves never said that, it was enough to provoke a rush by business owners to the developers’ defense. Kingston’s City government obliged as well, characterizing SEQRA as an “impediment” in a March 2019 housing need analysis — which, curiously, stressed the need for affordable housing.
Attacks on the founder of a citizen watchdog group.
Michael Moriello’s screed against Rebecca Martin, who started KingstonCitizens.org, could be called a guide to ad hominem attacks and straw man arguments. “It is clear that Ms. Martin is seeking to mischaracterize a lawful and comprehensive SEQRA process in an attempt to cozen the City of Kingston Planning Board into summarily dismissing the Kingstonian Project Applicants [sic] rights under SEQRA,” he wrote.
As to an educational talk on SEQRA that she hosted, he speculated that “attendees will be treated to further conclusions, speculations and environmental hyperbole, all under the pretext of Ms. Martin’s political agenda.” In fact, the talk was dry lecture that walked listeners through a few hours of the very tedious SEQRA process. The only speculations, hyperbole and political agenda were in Mr. Moriello’s letter.
Ms. Martin declined comment but provided a reference to an interview on Radio Kingston.
In the same document, Moriello wrote, “The Kingstonian Project is undergoing a lawful, coordinated SEQRA review process before the City of Kingston Planning Board which will be procedurally and substantially inviolate upon its conclusion. In this regard, I have every confidence that all lawful procedures embodied within the SEQRA Regulations will be followed by the lead agency in accordance with the memorandum and pursuant to controlling New York State Law.” It was not immediately clear why he chose to distance himself, ever so slightly, from the behavior of the lead agency.
Perhaps it had to do with the Landmarks incident.
If You Can’t Strong-Arm Them, Fire Them. Then, Suppress Their Report
See Landmarks sidebar for a deep dive and clips showing City Planner Suzanne Cahill and City Attorney Dan Gartenstein trying to muzzle the Landmarks Commission when members wanted to bring a pos dec up for discussion. It didn’t work, and Landmarks unanimously recommended a pos dec. Shortly thereafter, the mayor fired two of the dissenters and replaced them with an architect and a real estate agent who also happens to be an official in the ruling Democratic party hierarchy. As for the recommendation by the original Landmarks Commission? It would never have seen the light of day had former Landmarks member Leslie Melvin not had the foresight to read it aloud at the April 10 public hearing so it would at least be entered into the record as a public comment. (Melvin resigned to protest the firing of the two Landmarks members.) When the Planning Board held a meeting June 3 to consider the involved agencies’ input, Suzanne Cahill and Wayne Platte refused to accept the Landmarks recommendation on grounds that the new commission was still “deliberating.” It is not known when the new opinion – likely sanitized and almost certainly not calling for a pos dec — will be released. This chain of events strikes a blow to any notion that the city is following SEQRA law by engaging in a coordinated review. Yes, it’s coordinated, but only with the opinions the developers want to hear.
Back to Mr. Moriello….
The attorney also outlined his strategy to sidestep a pos dec. Moriello wrote that he is following a parallel path okayed by New York State’s highest court. According to a Court of Appeals ruling in Merson v. McNally, a neg dec is acceptable if appropriate studies have been conducted and a clear and open process with community involvement has been followed. However, a closer look at Merson v. McNally shows several ways the developer’s team may be skirting the criteria spelled out by the court.
The 7th edition of the NY Environmental Law Handbook devotes two paragraphs. “In Merson v. McNally, a proposed soil and gravel mine was found [to pose the risk of] … “potentially large” environmental impacts… and the applicant modified its project plans in response to those concerns. The lead agency then issued a negative declaration… The Court of Appeals, however, held that in this case the modifications were examined openly and with input from all parties involved, and that this open public process is the overriding purpose of SEQRA. Therefore, because the modifications were made openly with the input of all parties, the Court of Appeals held that the negative declaration … was properly issued.” It found that changes were incorporated to “mitigate the concerns identified by the public and the reviewing agencies….”
In the case of the Kingstonian, it is true that SOME of the identified concerns are being examined, but not ALL of the concerns, and certainly not the concerns identified by the public.
In Merson v. McNally, the Court of Appeals described the planning board’s action as “an open process that also involved other interested agencies and the public” rather than “a bilateral negotiation between a developer and lead agency.” Crucially, it found that “open public process is the overriding purpose of SEQRA” and that the multi-party negotiating process met due process requirements.
City Hall is embracing the strategy in name alone. This is not an “open public process.” On the contrary, it is a negotiation between a developer and lead agency, with input from Albany agencies, but with the expunging of undesired input from the HLPC and local residents – and officials, but only off the record — who complain about the looks, the size, and a changed community character.
The issues raised by the community — parking, affordable housing, design, size, environment — fall under the rubric of community character, and time and again this has been established as a criterion deserving of a “hard look” under SEQRA. Not only are city officials conspiring with the developers’ team to avoid a “hard look,” they have turned a blind eye and a deaf ear, and in doing so they have betrayed their constituents.
Rubber Stamping DRI Grant Money
When a $10 million Downtown Revitalization Initiative grant is awarded, local government forms a Local Planning Commission (LPC), ostensibly to elicit community feedback on how to spend the money. But several people who sat on the Kingston LPC say that in large part, the decisions had already been made. Those decisions included a $3.8 million allocation to the Kingstonian.
“I felt like they knew what had to be done with the majority of the money,” Micah Blumenthal told Hillary Harvey May 24 on Kingston Radio’s The Source. “And it was mostly a matter of, there’s maybe still some more and we’re open to some input on what the rest of it might go to. But that’s not how it was presented to us. The way it was presented to us was, ‘Here’s ten million dollars. Help us figure out where ten million is going to.’ And I don’t think that’s accurate in terms of what the process really was.”
One project was added later, at the request of local citizenry – improvements to the Andretta Municipal Pool. But for the most part, said Theresa Widmann, owner of a yoga studio in the district, “It felt as though there were projects that were presented and it was very hard to steer the ship elsewhere.”
Fox/Henhouse
Hillary Harvey, the radio show host, said it was “confusing” that several recipients of funding were appointed to the LPC or attended meetings, including Brad Jordan, the Kingstonian’s developer. Jordan is not listed as a member of the LPC, but one formal appointee confirmed that he attended at least one meeting. Harvey also noted that the DRI award process had come to be seen as a vetting of the Kingstonian. And yet, said Blumenthal, “We were told that the money’s not actually going to the Kingstonian because it can only be used for public things and the money we were approving was … for the parking lot” — which, of course, is part of the Kingstonian, not to mention its go-to raison d’être. “If we had questions about the development, affordable housing, whatever … [they were told] that’s not actually what the money is going toward. I don’t know that any of us felt particularly good about that…
“At the end of the day I don’t know that the results would have been any different had they just not done a DRI public committee,” said Blumenthal.
-0-