Fishkill Wins Fight Against Developer

Rolling Hills

Rolling Hills at Fishkill would have been built on this parcel along Route 9D. (File photo by J. Simms)

Judge upholds vote to end review of Rolling Hills

A state judge this week upheld the Town of Fishkill’s decision to end its review of a rezoning request from a firm proposing a 30-building, 463-unit development on Route 9D just outside Beacon. 

Supreme Court Judge Christi Acker, who is based in Dutchess County, on Monday (Jan. 4) dismissed the lawsuit filed in July by Hudson View Park Co. against Supervisor Ozzy Albra and the Town Board, which had voted on April 1 to end its review of a request to rezone a parcel for the firm’s proposed Rolling Hills at Fishkill development. 

Hudson View’s plan included 68 affordable housing units and 24,000-square feet of retail built on two parcels, one with frontage on 9D north of the Mount Gulian Historic Site. The larger of the parcels is zoned residential while the 9D land is in a business district. 

The project was to have drawn water from Beacon and residents would have sent their children to Beacon schools. The developer would likely have been required by the state to install a traffic-calming device — possibly a traffic circle — on Route 9D, while 55 percent of the land would have remained open, with walking trails. 

Hudson View, which sought reimbursement of what it said was more than $1 million in costs during the application and review process, argued that the current Fishkill board was obligated to continue reviewing the request under an agreement approved in 2017. Only one board member, Ori Brachfeld, served at that time.

Acker, however, ruled the agreement was void under a “term-limits” rule, which “prohibits one municipal body from contractually binding its successors in areas relating to governance unless specifically authorized by statute or charter provisions.”

The judge said the agreement also constituted “illegal contract zoning” because the language approved by the previous board committed the current one to act on the application, when it also had the right not to vote on it.

Albra, who won his seat in 2019 after campaigning against the project, said the decision confirmed that the vote to end the review was proper. 

“The Town of Fishkill will not allow developers to dictate to the town how it will operate,” he said in a statement. 

Michael Zarin, the attorney for Hudson View, called the ruling “disappointing” and said it “sets a dangerous public policy regarding economic development in New York state, and the integrity of government officials such as the current town administration.”

He added: “The decision is contrary to the prevailing case law, and will not stand. It will also be viewed very badly by future persons thinking about investing in the Town of Fishkill.”

5 thoughts on “Fishkill Wins Fight Against Developer

  1. The case law is quite clear — that is why the town won. The decision will stand. These developer-driven agreements are not necessary or beneficial to the town or its residents.

    Nugent is the Town of Fishkill attorney.

  2. Thank goodness for the present administration. The city people are pushing into this area too much with little care as to where they are moving to. They are rude, drive too fast, ask for too much and have no personality. If they want to come here, OK, but know they are not in New York City anymore.

  3. Although the case law is clear, the context of the agreement is not. The current zoning for properties along Route 9D corridor is anything but well-planned. Most people in the area know this. The process for the town to change the zoning law, here or anywhere in the town, is complex and expensive. In this case, the developer offered to perform the environmental research studies needed for the town to consider the proper path forward. The developer offered to do this work knowing that the town board was not “forced” to approve the change. In other words, the developers knew they were at risk of spending considerable money with no guaranteed outcome.

    The proposed agreement was presented to the public, town Planning Board, the Town Board, and the Dutchess County Planning Department for consideration. Both the Town Planning Board and the Town Board voted unanimously to sign the agreement. The developer began work on the studies in late 2017.

    By voting to break the agreement, the town will not receive the data from the studies. Now if the Town decides to address a change in zoning for the area, it will have to do so at taxpayer expense. Too bad.

    LaColla is the former Fishkill supervisor.

  4. Mr. LaColla’s statement above is not accurate. If there is a proposal to change zoning of a specific parcel in the town, a developer will pay the expenses associated with it. The risk for any developer is that the majority of board membership changes, so that is a matter of timing and strategy. A decision to change zoning is solely a legislative determination and the case law is abundantly clear that a town board cannot bind future town boards and that is exactly what this agreement did — violating the term limits rule. The Appellate Division with jurisdiction over Dutchess County recently confirmed the viability of the term limits rule in another case.

    If the town desires to initiate a change in zoning, that will likely be part of a comprehensive plan amendment that will not only concern one parcel and will not contemplate a specific development as was the case here. The bottom line is that the town’s decision here was lawful and the court confirmed that the agreement could not lawfully bind the current town board.