Kingston Council Laws and Rules Committee Continue to Discuss the Executive Branch’s Decision to not Enforce “Building/Zoning” Law

By Rebecca Martin

In April, community members impacted by the proposed Irish Cultural Center (ICC) located at 32 Abeel Street in the Rondout co-authored a letter to the Common Council Laws and Rules Committee ostensibly asking, “Why does the City of Kingston have laws on its books that it won’t enforce?”   The letter was referring to a recent decision by the Building Safety and Code Enforcement Department guided by the Executive Branch’s Corporation Counsel in the City of Kingston, where it was determined that the ICC’s expired permit (the third since 2011) would not be upheld due to the city not having found  “… an instance of its usage” and that it would be “unfair to arbitrarily enforce said article by invalidating (the ICC’s) building permit.”

The Laws and Rules Committee took up the question at its May meeting where they decided to send an inquiry to the Director of Building Safety and Code Enforcement.  In an email, Chairman of the Council’s Laws & Rules Committee and Ward 1 Alderman Jeffrey Ventura-Morrell asked, “In your letter to the developers, you mentioned that you found no previous instance of its (the article’s) enforcement and therefore you determined that it would be unfair and arbitrary to enforce it in this instance. Can you please expand on why you reached that conclusion?”

The Director replied, “Following a review of a number of files, conversations with current staff and speaking with former inspectors, no one could remember an instance when a permit had been invalidated for this reason. Building Safety issued 1350 permits last year and we have no mechanism to alert us when each permit has reached the six months’ revocation limit. The recognition of a permit’s potential invalidation date is only the first step in the process. An actual inspection of the premises would be needed to verify the presence or absence of construction work. I am of the belief that this code, if strictly enforced, would overwhelm the capacity of the department and frankly is not necessary.”

What is notable here is that the Building Safety, with guidance from the Executive Branch’s Corporation Counsel, provided two explanations.  In his letter dated March 10 to the ICC, the law would not be upheld because the city hadn’t used it before and concluded that it would be unfair to the applicant if it were enforced.  In the June 2 reaction to the chair of the Laws and Rules Committee’s inquiry, the reason was because of a lack of mechanism to alert his department of the six month expiration for each permit that they have approved. 

It’s problematic for Kingston going forward, as enforcement of the law is critical. If the law is flawed, then it should be reformed.  Additionally, in the 21st century, technology must exist to provide a ‘mechanism’ that would allow the City of Kingston Building Department to assure compliance of all of its 1,350 approved building permits. (Note to City: Check out Airtable)

The City of Kingston’s Common Council Laws & Rules Committee will continue the discussion “Building / Zoning Laws” during their remote meeting on Wednesday, June 17th at 6:30pm.

You can dial in using your phone:

United States (Toll Free): 1 877 568 4106 
United States: +1 (646) 749-3129 
Access Code: 325-387-989

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We are pleased to have been provided permission to repost Lynn Woods’s recent article in Hudson Valley One “Despite delays, Kingston’s Irish Cultural Center gets another reprieve from building safety”.  

Below is the original, unedited version.

UNEDITED: The Tale of a Pit: Despite delays, Irish Cultural Center Gets Another Reprieve from Building Safety/Hudson Valley One/by Lynn Woods/May 25, 2020

Neighbors refer to it as “the pit.” Excavated two years ago, the site of the Irish Cultural Center of the Hudson Valley (ICCHV), at 32 Abeel Street in Kingston’s Rondout, is an eyesore for all who venture up Company Path and has been a safety hazard for the neighboring properties. First proposed in 2011, the 16,000-square-foot structure, which would include a pub, exhibit space, 171-seat theater, and classrooms, has yet to be built. A couple of times, its backers have gone through the process of approval, only to fail to properly renew or apply for the required building permit—and then got a reprieve from the city. The latest instance of this occurred in March, when the Building Safety Department extended the ICCHV’s building permit, even though the ICCHV hadn’t done any work on the site as the city code requires.

The ICCHV received its building permit on June 18, 2019. According to City Code Chapter 172, Article 172-5:I, work must commence within six months of issuance of the permit, or the permit will be revoked. The ICCHV hadn’t done any work by mid December, when six months had passed, but instead of revoking the permit as the law requires, the Building Safety and City Engineering Department extended it to June 17 of this year.

The decision to extend the permit was documented in a letter dated March 10, 2020, from Stephan Knox, the city’s Director of Building Safety & Zoning Enforcement, to William Kearney, president of the ICCHV. Knox wrote that neither his department nor the City Engineering Department could confirm that work had been done at the site since issuance of the permit, and he cited the code that required this. But because “a review of building department files has not revealed an instance of its usage”–Chapter 172, Article 172-5:I was put on the books less than two years ago–Knox wrote that his department had determined “it would be unfair to arbitrarily enforce said Article by invalidating the building permit #19564 at this time.” 

Fed up with the ICCHV’s continued negligence of the site—the silt fencing has collapsed in places, temporary metal fencing along the perimeter has not been replaced after more than a year, and a section of city-owned historic bluestone retaining wall along Company Path that collapsed due to the excavation still has not been repaired, as the Kingston Planning Board required—a group of citizens sent a letter to Common Council President Andrea Shaut on April 22 asking the Common Council to look into why the group allege the law wasn’t followed (full disclosure: this reporter was one of the signatories on the letter). In response, the Common Council’s Laws and Rules Committee discussed the building permit extension at its May 20 meeting. Members of the committee agreed to investigate, pledging to further address the issue once it had more information at a future meeting. 

“This is the first time we know of that the law was not enforced,” said Shaut at the meeting. “If the law is not strong enough to be enforced, as lawmakers we should consider amending it.” Reynolds Scott-Childress, Ward 3 alderman, and Jeffrey Morell, chair of the committee and Ward 1 alderman, agreed to follow up by examining the relevant legislation and contacting the building department for more information. 

In a subsequent email to this reporter, Morell wrote, “if it was a requirement for any new portion of the code to have a precedent in order to be enforceable, then no new portion of the code would be enforced, so I’m really interested to find out why he [Knox] came to this conclusion. And, if we find out that this portion of the code is in fact arbitrary then we as lawmakers have a responsibility to look into amending it.”

In their letter, the Kingston residents challenged the Building Safety Department’s reasoning for extending the permit. “Requiring historical instances of usage as a criteria for enforcement would mean that any new or modified ordinance, rule, regulation and local law put forth by the Common Council and approved by the mayor would be unenforceable because there would be no instances of ‘usage,’” it noted. “New codes could never meet this criteria…the same is true of codes which are updated, since they obviously would have no precedent of usage either.” 

“Building Safety isn’t following the law,” said Barbara Scott, a signatory of the letter. “Nowhere does it say these things are up for a discretionary decision. And they didn’t spell out their criteria as to how they came to that decision. It’s especially egregious because of the lack of straightforwardness the ICCHV developers have shown.” 

Initially, ICCHV neighbors Owen and Hillary Harvey had intended to appeal Building Safety’s extension of the permit with the Zoning Board of Appeals. But they dropped their appeal and instead chose to bring up the issue with the Common Council, in the form of the letter, reasoning that as the city’s legislative body it is the Common Council, not Building Safety, that decides if a law is enforceable or not. “If there are safety laws in Kingston that are not enforceable, then the public is not safe, and the Council as the legislative body has the oversight to address that,” Owen Harvey wrote in an email. 

At the Common Council meeting, Kingston’s assistant corporation counsel Dan Gartenstein said the Harveys’ decision to drop their appeal was problematic. “The Harveys exercise a right to file an appeal, which is required under the code,” he said. “The Zoning Board of Appeals was prepared to hear their appeal, but they withdrew it. The Zoning Board of Appeals would have heard testimony from the Building Department, along with legal arguments presented by the ICCHV and the Harveys. We could then decide the real issue of what constituted work [at the site].” 

But Gartenstein’s contention that work was done on the site “is not factual,” Owen Harvey told this reporter. “The Building Safety and City Engineering Department had both determined that work hadn’t been done and the permit was technically invalid, but because this code involving time limits had never been enforced before, they weren’t going to enforce it,” he said. Indeed, the March 10 letter to the ICCHV signed by Knox points to the ICCHV’s notable lack of progress. “An extension of the building permit would be required to continue construction after June 17, 2020. Considering the miniscule headway made to date, an application for a permit extension would receive an unfavorable recommendation for approval absent substantial progress with respect to construction of the concrete foundation structure. You should also be aware that the inability to secure a building permit or permit extension would necessitate resubmitting the project for Planning Department review,” Knox wrote.  

The letter also alluded to the problems that have plagued the site, which include two violations issued by the Building Safety Department. One was issued in August 2018, after eroding soil and rocks from the site spilled onto Company Path, blocking access along the public walkway, which abuts the ICCHV site on the south, and damaging neighbor Deanna Baum’s driveway. Building Safety required the ICCHV to install terraced silt fencing on the eroding land as well as temporary metal fencing along the perimeter of the site. The second was issued eight months later in April 2019, after the Harvey’s seven-year-old son nearly fell into the 12-foot-deep pit when he was playing on the Harvey’s property and the ground collapsed beneath him. The Harveys and Baum said the site continues to be a hazard, given how the excavation, which extends all the way to both property lines, has destabilized their land. The Harveys have forbidden their three children, two of whom are under age 12, from going onto their section of lawn adjoining the pit. 

Baum’s patio is literally hanging off the edge of what is now a cliff bordering her property. “Living next to it is a nightmare,” she said. The excavation “chopped off my patio,” cracking the bluestone paving and causing a sinkhole to form, she said. While a rep from the ICCHV repaired “the huge gap” that appeared in her driveway after the excavation, no one from the ICCHV has fixed her patio, which she claims would cost $50,000, requiring construction of a massive retaining wall along the edge of the excavation site to stabilize it. 

Knox’s letter to ICCHV’s Kearney acknowledges the continuing hazards. “Regular inspection of the site, particularly following rainstorms, is still required with any severe erosion issues corrected immediately,” he wrote. “Site safety also remains a concern so security fencing must also be inspected frequently for stability.” 

In a May 13, 2019 Kingston Times article entitled “With a Giant Hole in the ground and clock ticking, questions remain about Irish Cultural Center’s ability to pay for the project,” Jesse Smith reported that “Mayor Steve Noble and City Planner Suzanne Cahill have both said that they would like to see construction get underway soon and raised the possibility that the ICCHV could be required to fill in the excavation if it did not.” Around that time, the Harveys met with the mayor, who told them “he was going to fill the hole to ensure the safety of our children if no work got started,” according to Owen Harvey. “The risk is still there, and it’s disheartening.”

Emails sent by this reporter to the city’s communications director Summer Smith went unanswered as of press time.  

The building permit extension follows a string of controversial decisions made by the city to approve the 16,000-square-foot cultural center, which is located in a historic district. Though Abeel Street is zoned residential, the Zoning Board of Appeals gave the ICCHV a zoning variance, claiming it abutted West Strand, which is zoned commercial (the site is actually adjacent to Company Hill path, which climbs the city-owned slope of land above West Strand). The Kingston Planning Board also gave the project a parking waiver, allowing it to have a fraction of the parking spaces a structure of that size would normally require, and the Zoning Board of Appeals overruled the city’s Historic Preservation Landmark Commission’s rejection of the ICCHV’s plan, which was based on the building’s large size and failure to conform to the historic character of the area. 

After getting site approval from the city, the ICCHV excavated the site in the spring of 2018—but then failed to get a permit for construction within the required six-month time frame. It went through the approval process a second time and was granted a permit last June. The ICCHV excavated the site without a permit—a deficiency in the city code that has since been remedied, with excavations only allowed if they are accompanied by a permit for a foundation–and failed to comply with state standards under the Department of State, nor was subject to any oversight, according to Owen Harvey. “We’ve lost part of our yard because of the irresponsible excavation allowed by the city,” he said. 

Despite the repeated delays, ICCHV president William Kearney told this reporter the project was on track. “Everything’s set,” he said. “As soon as the state lets us”—presumably this week; the state’s prohibition on construction and other activities due to the Covid-19 virus will be lifted on May 26—“we’ll be ready to go on phase one,” which he explained is for the foundation and the building (an extension of the permit, which is for the foundation, would be required for the building). Although Kearney refused to provide details, beyond mentioning the ICCHV would apply for LEED certification, he said the project is “fully funded.” 

When I reported on the project for an article in the Kingston Times back in 2016, Bob Carey, then the ICCHV director, said the total project cost was $8 million, “which would be raised through a combination of grants, donations and borrowed money.” The cost of the foundation is estimated at $200,000 but it wasn’t until this March, according to the newsletter published by the Ancient Order of Hibernians, a membership organization that established the ICCHV, that the ICCHV received a signed commitment letter of the loan from Ulster Savings Bank. 

In his May 13, 2019 article, Jesse Smith reported that according to a 2016 project summary submitted to the New York State Dormitory Authority as part of a grant application, the total projected cost of the center is $4.68 million. The summary lists funding sources as $2 million in state grants, including $1.5 million from Assemblyman Kevin Cahill (who also provided the money to the ICCHV to purchase the site) and $500,000 from state Senator George Amedore.

Tom Hoffay, grants director for Assemblyman Cahill, confirmed that the state assemblyman was still committed to helping fund the project. “Our office has been working closely with the Irish Cultural Center of the Hudson Valley to advance their project and secure the state grant for which they successfully applied some time ago,” he wrote in an email. “We are pleased to learn that the planning process and construction preparation is advancing, that they are seeking the highest level of environmental recognition for their project – LEED status – and that they are proceeding apace, particularly in view of obstacles that they have been obligated to overcome by individual opponents of the project.”   

Asked whether the fiscal crisis caused by the pandemic threatened the amount of state funding, Hoffay responded, “We fully expect that the grants that our office and the office of Senator George Amedore helped secure for the organization will be fully awarded at the appropriate time.

“Assemblymember Cahill continues to have full faith and confidence in ICCHV President William Kearney, as well as the almost exclusively volunteer team of professional contractors who are demonstrating great patience and fortitude in sticking with this project.”

Rondout resident Scott had a different view of the project. “The general problem is the ICCHV has not operated in good faith. They haven’t been willing to negotiate in terms of what the neighborhood would like to see. They’ve never had enough money to make this a reality. This has been a fantasy project.”