There has been some confusion about the process for the proposed Kingstonian deviated PILOT, regarding whether or not the agencies (the Common Council, City of Kingston School District Board of Education (KSCD), and Ulster County Legislature (UCL)) must all agree on the PILOT terms in order for it to proceed. The source of that confusion stems from an expedient decision by the Ulster County Industrial Development Agency (UCIDA) to change its rules in ways that benefit the Kingstonian.
Rose Woodworth, CEO of the UCIDA clarified the question about the process and the Kingstonian deviated PILOT in a recent email:
- In general, the UCIDA has the power to grant PILOT Agreements (and real property tax abatements).
- In connection with the granting of tax abatements, the UCIDA has adopted a Uniform Tax Exemption Policy (the “UTEP”). Under the UTEP, the UCIDA may grant certain levels of real property tax abatements to project applicants.
- As has been described both in the IDA Application and in media reports regarding the Kingstonian Project, the real property tax abatement being requested by the project applicant is a deviation from the normal real property tax abatement provided in the UTEP.
- As provided in the UTEP, in cases of deviations the UCIDA is subject to the following requirements:
(D) Review by Agency with Affected Tax Jurisdictions. Before the Agency shall enter into a PILOT Agreement that deviates from the policy set forth herein, the Agency shall (1) notify each affected Tax Jurisdiction in accordance with Section 8(A)(2) hereof, and (2) attempt to obtain the written consent of all the affected Tax Jurisdictions to such deviation. In the event that the Agency is not able to obtain the consents of all the affected Tax Jurisdictions to such deviation, the Agency may enter into such a PILOT Agreement that deviates from the policy set forth herein without the consents of such affected Tax Jurisdictions. The provisions of this Section 8(D) shall not apply in situations where the Agency holds title to property for its own account.
“As noted in the above excerpt from the UTEP, the Agency is obligated to get the local approvals regarding the PILOT deviation. And, as noted in the excerpted language, the UCIDA could, if it is so determined, move forward without the consents of the local jurisdictions.“
In other words, even if the three impacted agencies –Kingston’s Common Council, KCSD and UCL — don’t all agree to support the PILOT and its substantial tax breaks for the developer, the UCIDA may proceed to approve this anomalous PILOT request on their own. In short, the UCIDA – an appointed and democratically unaccountable body – may make a lone decision to approve the PILOT without the consent of all of the impacted tax jurisdictions like the School Board.
Back in July, the City of Kingston and Ulster County Industrial Development Agency received a letter from Victoria L. Polidoro, Law Offices of Rodenhausen Chale & Polidoro LLP. Polidoro represents several property owners in Uptown, Kingston. The Polidoro letter informed the IDA that the law did not authorize them to grant the PILOT application. “As a threshold matter the IDA does not have authority to consider or grant the Application for the Project which includes residential housing units. The IDA’s Housing Projects Policy, which was reaffirmed on January 8, 2020, only allows IDA financing in limited circumstances. It provides that:
A. The Agency will only consider the granting of any “financial assistance” (as defined under the Act) for following projects that provide housing:
- (1) a project that satisfies the definition of a continuing care retirement community project under Section 859-b of the Act; or
- (2) a project by an industrial, manufacturing, warehousing, commercial,research and recreation facility (as defined in the Act) that provides workforce housing for its employees.“
With new information from the Polidoro letter, the IDA appeared to hastily approve a revised policy change a month later on August 12 authorizing their agency to grant tax breaks to “any housing project, or any mixed-use project that includes a housing or residential component, that has received the prior approval from the governing board of Ulster County and each town, village, city and school district in which the housing project is located.”
The UCIDA’s recent process change is troubling for several reasons worth analyzing. Through this policy change, the UCIDA has empowered and entrusted itself to unilaterally give away $30 million to wealthy real estate developers during a pandemic irrespective of the judgements of the very elected officials representing the jurisdictions impacted by the subsidy. The IDA itself is an appointed body and, therefore, democratically unaccountable, making their rule changes and subsidy granting power all the more offensive to the principle of procedural fairness. The damage done to due process by public officials who pledge to uphold the public interests is deeply corrosive, undermining a sense of trust at the core of good local government. We should demand more from those who represent us. At a minimum, citizens should expect that governing rules are clear, consistent and fair to all parties. Any changes to procedure should never benefit one party over another in the middle of a highly contentious process.
To make matters worse, the UCIDA has scheduled their required public hearing on the proposed Kingstonian PILOT, on October 1st, prior to the KCSD vote, which may take place on October 7 (or the 21). The UCIDA’s public hearing is also scheduled ahead of the UCL vote on October 20. By scheduling the public hearing before the other agencies (KCSD and UCL), the UCIDA prevents concerned taxpayers from addressing their members should either of the two remaining agencies reject the PILOT agreement for the Kingstonian. The UCIDA members have effectively foreclosed public comment following the votes of those other affected agencies, precluding an opportunity for the public to question them and advocate for fairness.
Thursday, October 1st at 7:00pm
The Ulster County IDA public hearing on the Kingstonian PILOT will occur remotely. Please LIKE our facebook event to learn more about how you can participate.