Village Wins Court Case against Marathon Site Developer Kearney

Marathon battery plant site

By Liz Schevtchuk Armstrong 

The Village of Cold Spring last week won an important court case involving the owners of the old Marathon battery plant site, who had sought to construct a house on a lot one-fourth the size required by village law. A four-justice panel of the Second Judicial Department in the Appellate Division of the State of New York Supreme Court system spared the village from having to grant one or more variances to accommodate plans by the Kearney family, led by Ken Kearney of Kearney Realty and Development Group.
       Ruling unanimously on April 5, the appellate justices threw out a lower-court ruling that had gone in the Kearneys’ favor and had found the village had been “arbitrary and capricious” in thwarting the Kearneys’ wishes. In its decision, the appellate court stated that the when the case reached the lower court, “the petition should have been denied and the proceeding dismissed on the merits” and that the Kearneys’ predicament came of their own volition. The four justices ordered payment of a limited amount of court costs to the village, perhaps $3,000. “The appellate court reversed the Putnam Supreme Court and granted judgment to the village,” Village Attorney Stephen J. Gaba said April 12, summing up the appellate court action. Ken Kearney did not respond to an e-mail request seeking reaction.
       The Cold Spring village clerk received a copy of the decision April 11 and Mayor Seth Gallagher announced the results at the Village Board’s meeting April 12. The mayor told Philipstown.info a day later that had the village been forced to provide a variance to the Kearneys it could have set a precedent and spawned development of the Marathon property house-by-house and variance-by-variance, with homes springing up on parcels otherwise deemed too small. “It was very important that we win,” he said.
       The Marathon property is currently zoned “I-I,” or industrial, and while Cold Spring permits residential housing in an I-I zone, each residential lot must be at least 40,000 square feet. As the appellate court noted, along with wanting the courts to compel the village to grant a variance, the Kearneys asserted that a village provision called the “small lot exception” covered their situation, though when before the ZBA they had mentioned the exception informally and focused their arguments on a variance.  The “small-lot exception” to the Cold Spring zoning law provides that “a lot owned individually and separately and separated from any adjoining tracts of land “¦ which has a total area or width less than prescribed herein, may be used for a one-family residence, provided such lot shall be developed in conformity with all applicable district regulations other than the minimum lot area and lot width requirements.”
       Issuing a four-page decision, the Appellate Division justices said the lower court judge, Justice Andrew P. O’Rourke of the Supreme Court branch in Putnam County, had made several mistakes in his December 2009 judgment. “The Supreme Court erred in considering the petitioners’ [Kearney] claim that their property was exempt, under the ‘small-lot exception’ “¦ from the dimensional requirements prescribed by the zoning code for residential development in I-1 districts,” the appellate justices wrote. “A petitioner may not raise new claims in a proceeding pursuant to Civil Practice Law Rules Article 78 that were not raised at the administrative level,” the ZBA proceedings.  Furthermore, the panel said, O’Rourke should have limited his review to the grounds cited by the ZBA in denying a variance.
       “Here, while the petitioners communicated their opinion to the ZBA that they did not require variances because their property was exempt from the I-1 district’s dimensional requirements under the `small-lot exception,’ they expressly advised the ZBA at the public hearing held on Feb. 19, 2009, that they were ‘not asserting in the context of this proceeding here that [they were] entitled to apply the small lot exception,’ but, rather, were merely seeking variances. Consequently, the ZBA’s findings and decision were limited to the question of whether the petitioners were entitled to variances, and did not address the question of whether the property was exempt from the I-1 district dimensional requirements. Accordingly, the petitioners’ claim that their property was so exempt is precluded from judicial review,” the appellate court said, citing similar, earlier court decisions in New York State. Moreover, the four justices declared, “the Supreme Court further erred in determining that the ZBA’s denial of the requested variances was arbitrary and capricious. Local zoning boards have broad discretion in considering applications for area variances. ‘The judicial function in reviewing such determinations is limited and a reviewing court should refrain from substituting its own judgment for the judgment of the zoning board,'” the appellate court stated, in part quoting earlier rulings. “The ZBA had a rational basis for denying the variances. The requested variances, which would allow the construction of a single-family home on a lot one-quarter the size of that required by the zoning code, were substantial, and the petitioners’ difficulty was self-created, as they were aware of the zoning code’s restrictions before taking title to the property.” Finally, the appellate court added, “the ZBA rationally concluded that granting the variances could set a negative precedent within the neighborhood, and serve as a catalyst for like applications on similarly situated lots, thereby effectively negating the status of the industrial zoning district.”
       With such a precedent, Gallagher said, Kearney “would be able to develop the whole property one piece at a time. I was very pleased with it,” he said of the appellate court’s action.  In announcing the news at the April 12 meeting, he thanked the ZBA and its chairman, Donald MacDonald, “for their good work on this case and the case before it,” a reference to earlier litigation on Marathon. “Generally they are careful to make sure they really uphold the village code and state law.” Likewise, he expressed his appreciation to Village Attorney Gaba. “It could’ve cost a lot more. You did it efficiently and effectively.” The mayor said the village should receive a few thousand dollars to help recoup some expenses for mailings, printing, and related needs. “It doesn’t sound like a lot, but this one docket alone was $3,000, just that one thing we handed in to the court” for the appellate proceedings, he said. Gaba added that the total cost of the case had yet to be tallied but “it’s a lot more than $3,000.”
       The appellate panel consisted of Justices Peter B. Skelos, Randall T. Eng, Leonard B. Austin, and Jeffrey A. Cohen.


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4 thoughts on “Village Wins Court Case against Marathon Site Developer Kearney

  1. This is Good News for Village Residents…How ridiculous and irresponsible to even consider residential property construction at this site. As is the case with most sites, Marathon was not thoroughly remediated, and homes that border the old Marathon battery “Nickel Cadmium” site are STILL TO THIS DAY experiencing problems, as a direct residual effect from the old plant. It is worth noting that most of the batteries produced at the old site were sold through Government Contracts…many, for the US Military.