The Appellate Division of State Supreme Court will hear oral arguments Sept. 6 in the city’s appeal of a September Supreme Court ruling allowing Kinderhook Development to build an $11 million, 48-unit apartment complex on the hill above Lee Avenue and Northern Terrace.
City Attorney Anthony Casale filed the city’s appeal in late March and is now preparing for the hearing.
“I don’t know whether to read that as a positive or a negative,” Casale said of the fact that the court has scheduled oral arguments in this case. The Appellate Division decides many cases without a hearing.
“I’m happy they are willing to do it,” he said of the hearing.
When Judge Barry Kramer ruled last year in favor of Kinderhook, overturning the city Planning Board’s rejection of the project, Casale said the decision emphasized the Planning Board’s own finding in the review process that the complex would have minimal impact on the neighborhood of single-family homes.
What was missing in the record, Casale said, was a transcript of the entire lengthy and emotional public hearing before the Planning Board, in which numerous speakers cited a variety of issues, including the neighborhood’s character and a severe drainage problem.
Instead, the record of the hearing presented to Judge Kramer contained meeting minutes offering a brief synopsis of hearing comments, Casale said.
“It appears the Planning Board is being punished for not being as articulate as they could have been — or should have been,” he said.
Casale said the board’s record of the hearing is understandable because no one envisioned the documents would become important in a court case.
The Planning Board denied the application for a special use permit, finding that the project would be out of character for the neighborhood.
But Judge Kramer said the board’s decision was arbitrary because it had already determined as part of its own environmental impact study that the project would present minimal impact to the neighborhood.
Since the complex would be compatible with city zoning and requires a special permit and not a variance, Kramer said it is inconsistent for the board to first find a minimal impact and then deny the application.
Last summer, Kinderhook Development, a Canastota company with apartment complexes in the Schenectady area, was awarded a $2.9 million state grant to help finance the project.
Kinderhook Principal Donna M. Bonfardeci said Tuesday her project funding is “locked in” and she will await a ruling from the Appellate Division.
In his appeal, Casale provided the synopsis of the public hearing comments and defended the board’s authority to reject the project based on the perception the complex would exacerbate the drainage problem while changing the neighborhood.
A Kinderhook engineering study determined the complex would not divert additional groundwater into the neighborhood, and the company has since evaluated building access to the site from West State Street instead of from the two dead-end streets in the isolated neighborhood.
Even if Kinderhook’s right to build is ultimately upheld, Mayor Dayton King said Wednesday, the complex will compete with existing apartment stocks and contribute to further declines in that sector of the community.
In recent years, he said, a number of apartment buildings have deteriorated to the point where demolition was necessary.