Kingstonian

The Kingstonian to be Jointly Reviewed Tonight; State Preservation Office Finds ‘Adverse Effects’ in its Evaluation of the Project; Confusion about Historic District Boundaries

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By Rebecca Martin and Marissa Marvelli

Stockade Historic District Building Footprints Comparison
This comparison comes from Marissa Marvelli’s illustrated guide for understanding architectural appropriateness in the Stockade Historic District.


This evening members of the City of Kingston Planning Board, Historic Landmarks Preservation Commission (HLPC), and the Heritage Area Commission (HAC) will convene for a joint meeting to discuss the visual impact analysis and other architectural drawings that were prepared for the proposed Kingstonian development by the applicant’s architect. It is one of nine consultant reports submitted in July as part of the project’s State Environmental Quality Review (SEQR). These reports are meant to help inform the Planning Board, the lead agency, as it completes Parts 2 and 3 of the Environmental Assessment Form (EAF), which assesses a project’s potential impacts, including those on historic, archaeological, architectural, or aesthetic resources. Although the applicant’s attorney volunteered to fill out the forms during the last Planning Board meeting on September 11th, completing these forms is the responsibility of the lead agency; the applicant cannot be its own critic.

Marissa Marvelli, a historic preservation consultant and a former member of the HLPC, has prepared an illustrated guide for evaluating new construction in the Stockade Historic District. It is meant to complement the questions asked in the EAF Part 2. While her guide does not attempt to prescribe design solutions as that is the responsibility of the project’s architect, it does call attention to the special qualities, features, and significance of the district. The guide is viewable at the bottom of this post.


Understanding Impacts on Historic, Archaeological, Architectural, and Aesthetic Resources

The following questions come directly from the NYS Department of Environmental Conservation’s SEQR Workbook, which is meant to assist the lead agency in completing a Part 2 EAF. They pertain specifically to impacts on historic, archaeological, architectural, and/or aesthetic resources:

  • Does the proposed project contain, or does it adjoin a structure listed on the national or state register of historic places, or a structure that has been determined by the Commissioner of OPRHP to be eligible for listing on the State Register of Historic Places? (The Kingstonian project site does not contain such a structure.)
  • Is the proposed project located in a national, state, or local historic district, or one that has been determined by the Commissioner of OPRHP to be eligible for listing on the State Register of Historic Places? (The Stockade Historic District is a designated local district. It is also listed on the National and State Registers.)
  • Does the community have a local survey, inventory, or list of important historic, architectural, or aesthetic resources, and are there any resources recorded on or near the project site? (Yes, the Senate House & Grounds to name one important one.)
  • Is the proposed project located in an archaeologically sensitive area? (Yes.)
  • If the project site is located in such an area, additional information may need to be collected to see if there are any resources in or near the specific location that may be impacted.
  • Are there historic or archaeological resources on the property or nearby?
  • Has an archeological survey been done to confirm if the project site has any such resources? (Only a Phase 1a survey has been completed so far. Consulting archaeologist Joseph Diamond has recommended a Phase 1b.)
  • Will the proposed project directly or indirectly affect them? How? (A Phase 1b survey would reveal potential impacts.)
  • Is the proposed project located in a scenic overlay district, scenic byway, or scenic area of state significance? (No.)
  • Is there a specific architectural style that identifies the community or neighborhood?  For example, most buildings may be predominantly of colonial architecture, or perhaps all the buildings in the neighborhood are constructed of red brick. (Yes, the immediate blocks are predominantly 19th-century brick commercial buildings. The district boasts the largest assemblage of 18th and early 19th century stone buildings in New York.)
  • Will the project block important scenic views, or change the aesthetic character of an area? (Yes, the project’s scale and massing break drastically with the pattern of the district and the development would close a historic street to create an open plaza, which has no precedent in the district. It also proposes to drastically alter the topography, which is important to the district’s history and significance.)
West elevation
West elevation from Fair Street of the proposed Kingstonian. Drawing by Mackenzie Architects.


Measuring Impacts

According to the EAF Part 2 Workbook, in considering impacts, the agency must decide if that impact will be small or moderate to large. This decision should be based on the magnitude of the potential impact. Magnitude is not just the physical size of the project in feet or acres. Magnitude also considers the scale and context of a proposed project, and severity of that project’s impact. The Workbook gives guidance on assessing impact according to each environmental topic, including historic and archaeological resources.

A small impact could occur if:

  • There is no historic or archaeological resource on the site, but there may be a small impact to community character because of concerns over consistency with existing architectural and aesthetic resources.
  • There are historic or archaeological resources on the site, but the project design is such that no disturbances or major changes to historic structures will occur. For example, the location where archaeological resources exist will be avoided, or the historic structure on the property will be maintained and restored.
  • Minor disturbances to the resources will occur or minor changes to the aesthetic or scenic quality of the area but these do not destroy the historic resource or drastically change the character of the area.
  • Work at a location that is locally designated and historic preservation permits are issued that indicate identified work as being in compliance with relevant local historic preservation code.

Moderate to large impacts may occur if:

  • Historic structures are planned to be demolished or relocated as part of the development plan.
  • Historic structures are to be remodeled in a way that destroys or damages its historic value.
  • The project introduces an architectural design that is not consistent with a designated historic district, or a district that has been determined eligible for listing on the State Register, and that is not consistent with the long-term vision the community has for its aesthetic character as identified in an adopted comprehensive plan.
  • The project changes the character or view of important aesthetic resources.


SHPO Believes Project Will Have ‘Adverse Effects’ on the Historic District

In a September 19th letter to the Kingstonian applicant, the State Historic Preservation Office (SHPO) provided its comments on the project after its review of the materials. The comments are part of a consultation mandated by Section 14.09 of the New York Parks, Recreation and Historic Preservation Law. It is required for projects that are funded, licensed or approved by state or federal agencies. 

The letter describes the agency’s concerns:

  • North Front Street is the traditional district boundary marked by a distinct natural drop-off down toward the Esopus Creek. This natural contour clearly marks the northern boundary of the historic 1658 stockade. The lower portion to the north of the district now contains modern buildings and the shopping plaza further to the north, but the historic boundary remains readily apparent and continues to characterize the district. The new construction would significantly alter the northern district boundary and would be clearly visible from within the historic district. The Montgomery Ward building, now demolished, was the only structure that extended significantly beyond that traditional northern border. The proposed new development is much larger and would extend well beyond the old Montgomery Ward footprint.
  • By the mid-19th century, when the commercial street front was developed, the section of Fair Street extending north from North Front Street was established to access railroad facilities and the lumber yards. This historic street, which allows pedestrian and vehicular access to the district, would be virtually eliminated as part of the proposed development.
  • The historic commercial and residential buildings of the Kingston Stockade are characterized by a variety of materials, styles, and colors. The new construction is monolithic compared with the surrounding district. Though the currently proposed design attempts to reference the historic setting and surrounding architecture, we believe that a much greater effort is warranted for a construction of this scale.

SHPO’s comments provided under Section 14.09 are not advisory. The applicant must consult with agency staff to find acceptable solutions for avoiding, mitigating, or minimizing any adverse effects identified.


Confusion About the Boundaries of the Stockade Historic District

According to citizens who were present, during a presentation of the Kingstonian to the HLPC at its September 5th meeting, questions were raised about the location of the northern boundary of the Stockade Historic District as it pertains to their project site. The Kingstonian project team has apparently been operating under the assumption that the boundary bisects the northern part of the City-owned parcel because that is what is shown on SHPO’s Cultural Resource Information System, which maps of State and National Register properties and districts throughout the state. Because the HLPC’s review of a project ends at the boundary line, it would be to the applicant’s advantage to have the boundaries more constricted.

The boundaries of the State and National Register historic district are not relevant to the HLPC because the HLPC reviews only locally-designated districts and landmarks. The boundaries of local districts are approved by the Common Council and are included in the zoning chapter of the City’s Administrative Code. It is clear that the local historic district boundaries avoid bisecting any parcels. Curiously, the applicant is not questioning the boundaries of the Stockade Mixed-Use Overlay District, which mirror those of the local historic district and is of great worth to this project.


The City of Kingston’s Zoning Interpretation Process Leads to Attempt to Infringe Citizens’ First Amendment Rights

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Group Editorial by Lynn Eckert, Tanya Garment, Ted Griese, Laura Hartmann, Rebecca Martin, Marissa Marvelli, Melinda McKnight, JoAnne Myers, Giovanna Righini, Rebecca Rojer, Rashida Tyler, Sarah Wenk, Theresa Lyn Widmann

“…in a democracy if it’s going to work, people have to feel comfortable standing up and speaking their mind and speaking truth to power. If you are intimidated in the process…you become increasingly thoughtful and hesitant in the way you enter into public debate and that’s not good for anyone.” – Lynn M. Eckert, Ulster County Legislator and Professor of Political Science at Marist College.

In recent months, not only have City of Kingston officials been misleading the public in the review process for the proposed Kingstonian but the Mayor’s lawyers have singled out select individual citizens in an attempt to silence their advocacy for a transparent and inclusive planning process. 

At an August public hearing two citizens – Ted Griese and Sarah Wenk – delivered verbal testimony simply urging the Common Council to have a crystal clear understanding of the zoning law before amending it, which would allow the Kingstonian project to move forward. They, along with Rebecca Martin (lead organizer of KingstonCitizens.org), were the three citizens singled out in the Corporation Counsel’s letter regarding the City’s zoning interpretation, despite the fact that others in the community had also raised the question in written comments to their Council representative. 

It was shortly after that hearing that the Corporation Counsel’s office sent the troubling letter as an email attachment to the three private citizens identified above stating that the City was initiating a zoning interpretation process centered on the “Mixed Use Overlay District (MUOD) provisions regarding affordable housing.”  The letter stated that the City was in receipt of their comments from the public hearing and that they had been sent to the City’s zoning officer for the issuance of a “formal interpretation of the relevant sections of the Code.” The letter never explained why only these citizens had been singled out among all of the other commentators. 

The attorney representing the Kingstonian applicant submitted his written interpretation of the zoning as it pertains to the affordable housing requirement, concluding that “…there has been no waiver or violation of any zoning law 20% affordable housing requirement with respect to issuance of a Special Use Permit, as affordable housing guidelines do not apply to new construction within the Mixed Use Overlay District under the City of Kingston Zoning Law.”    

Given the disorganized and opaque Planning Board process and the singling out of individual citizens by the Mayor’s lawyer, KingstonCitizens.org felt compelled on behalf of the public to reach out to an attorney to clarify the question before the zoning enforcement officer – even if it meant participating in a process that they and the citizens had never sought. The applicant argued that no affordable housing was required because it is not adaptively reusing buildings. However, the MUOD is premised on adaptive reuse (which must include affordable housing) and does not authorize new construction of residential apartments. Environmental and land use attorney Emily Svenson asked that the City expand its interpretation “to determine whether the zoning code authorizes new construction of residential uses at the proposed Kingstonian location,” reiterating the question asked by members of the community.

In response to Svenson’s letter, chief Corporation Counsel, Kevin Bryant, who is appointed by the Mayor, sent a reply on September 12th, requesting that, since KingstonCitizens.org was “represented” by counsel, all communications from certain named citizens regarding the project go through counsel only. It also stated that members of city boards and commissions had been instructed to no longer speak to advisers of KingstonCitizens.org. Specifically, it read:

“As you are likely aware, the Kingstonian project is currently before numerous City Boards and Commissions and the Kingston Common Council. Your client has continued to assert an interest and a public position regarding each of the pending applications.

We are hereby requesting that in order to comply with the Code of Professional Responsibility, henceforth, all communications regarding the Kingstonian with officers of Kingstoncitizens.org, including but not limited to Rebecca Martin, Tanya Garment, Marissa Marvelli, Jennifer Schwartz Berky and Lynn Eckert, shall be through counsel.

Please be further advised that City Officials and Board and Commission members involved in the review of the Kingstonian project have also been advised that they are not to speak directly to these individuals as they are represented by counsel.“

Svenson swiftly responded that the City’s request was an infringement on individuals’ First Amendment rights and pointed out the Counsel’s misunderstandings: 

“…Please be aware that KingstonCitizens.org is a grassroots, volunteer organization and not a corporation. The individuals named in your letter are simply volunteers acting as organizers or advisors; they are not staff or officers. There is no justification for limiting their ability to communicate as individuals with their government.”   

Furthermore, Svenson noted that:

 “The Rules of Professional Conduct applicable to attorneys do not limit the rights of represented parties to communicate with one another. Particularly in the context of government, it is essential for citizens to be able to speak freely on matters of public interest pursuant to their rights under the First Amendment.”

If the City’s Corporation Counsel had reached out to Svenson prior to sending his letter, he would have understood that her representation in this case was limited solely to commenting on the City’s zoning interpretation for the Kingstonian project. Unfortunately, he went beyond the understandable need to protect the City and seized on the opportunity to cut off public discourse by advising elected and appointed officials that they should not speak to the citizens, directly undermining public dialog. The City took the approach that it was managing an adverse litigation-type situation rather than a participatory public process. It’s not the first time they have done so. The City has on many occasions tried to steer  the process in a certain direction rather than allowing the process to guide its review. 

From the beginning of the Kingstonian SEQR process, residents – and particularly those outspoken women who are civically engaged – have been intimidated, bullied, and mistreated by both members of the applicant’s team and city staff. They have been accused of having political agendas; punished for being professionals in their trades; shamed for asking tough questions; and called enemies of progress for demanding an inclusive process.  

All the while, our Mayor, with the power to hire and fire city staff and appoint all members of boards, committees, and commissions, remains silent about this undemocratic and bullying behavior. We live in a democracy not an authoritative regime, where citizens have First Amendment rights to play an active role in their government.

We are daylighting these antidemocratic actions today because they erode the public trust and confidence in our local government. Politicizing processes and institutions is the most effective means for discouraging citizen engagement, the evidence of which we are already seeing. No one should have to hire a lawyer to ask questions that government officials may dislike. 

We are in the midst of another election season and as usual, elected officials are again boasting about how well they make citizens feel “heard.” To us, it rings particularly hollow. In this instance, the Mayor’s lawyer used the Rules of Professional Conduct for lawyers as a pretext to chill the speech of citizens with whom the administration disagreed. If the Mayor is truly committed to “hearing” citizens, he should address the silencing tactics within his own administration. 

While reasonable people may disagree about how to interpret and apply the zoning law to the Kingstonian project, we can all agree that actions taken on the part of the Mayor’s lawyer to intimidate, single out, and silence citizens – particularly female citizens – engaging in their right to free speech is simply unacceptable. With officials committed to a fair, open, inclusive, and transparent process such undemocratic tactics would be unnecessary. 

VIDEO: Kingston Planning Board Special Kingstonian Project Meeting 9/11/19

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By Rebecca Martin

Last week the Kingstonian project team made a formal presentation to the City of Kingston Planning Board, the lead agency in the State Environmental Quality Review (SEQR) process for the proposal. They have made similar presentations over the past couple of weeks to both the Heritage Area and Historic Landmarks Preservation Commissions’.

It was determined that the Planning Board would request more information regarding the traffic and visual impact studies. A joint meeting between the Kingston Planning Board, Heritage Area and Historic Landmarks Preservation Commissions’ will occur sometime in October. In the meantime the Kingston Planning Board is still waiting for comments regarding the studies acquired by the applicant from the Ulster County Planning Board, Department of Transportation and the State Historic Preservation Office (SHPO).

In closing, the applicant’s attorney volunteered to fill out the EAF Part Two of the SEQR process for the Planning Department and Assistant Corporation Counsel’s review. He will proceed once the outstanding comments from the remaining boards and agencies were collected and the joint meeting described above occurs.

We will be interested in reviewing this document, particularly Sections 17 (c) and 18 (c).

Click on image to review a blank “Full Environmental Assessment Form (EAF) Part 2 – Identification of Potential Project Impacts“

The next full Kingston Planning Board meeting will occur on Monday, September 16th at 6:00pm. Currently, there is nothing on the Agenda for the Kingstonian project. Visit the City of Kingston’s website and scroll down to ‘meeting events’ to review agendas to check throughout the day on the 16th to see whether or not any new Kingstonian items have been added to the planning board agenda (or visit us on Facebook for updates). We don’t anticipate any major decisions to be made this month.

VIEW the Transcription of the Planning Board’s Special Kingstonian Project meeting.

Video #1 (Filmed by the Kingston News and brought to you by KingstonCitizens.org)

Public Comment
3:25 – 6:10: Gai Galitzine, Resident of Kingston
6:22 – 9:00: Ilona Ross, Resident of Kingston
9:24 – 11:06: Jane Eisenberg, Resident of Town of Ulster

11:17 – End: Kingstonian project team presentation

Video #2 (Filmed by the Kingston News and brought to you by KingstonCitizens.org)

00:00 – End: Kingstonian project team presentation (continued)

KingstonCitizens.org Challenges Kingstonian Applicant’s Zoning Interpretation and Citizen Action of New York Submits FOIL Request to City of Kingston

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City of Kingston Zoning Map. The boundaries of the Uptown MUOD mirror those of the Stockade Historic District shown in gray.

By Rebecca Martin

For months, many concerned citizens have asked the City of Kingston to provide its interpretation of the Mixed Use Overlay District—an overlay that adds a 20% affordable housing requirement to any adaptive reuse project with five or more residential units—as it relates to the Kingstonian project, a new construction that does not include affordable housing. This interpretation should have been provided to the applicant in writing prior to the start of the State Environmental Quality Review (SEQR) process.

Presumably, it should be easy enough for the City to upload this existing document to the Planning Office’s project page for the Kingstonian. If not, then the public can FOIL (Freedom of Information Law) it. If such a document does not exist, then the City ought to provide an explanation about how it assists applicants with complicated zoning interpretations.

On August 16th, in a letter oddly addressed to just three private citizens, the City of Kingston Corporation Counsel’s office outlined its process for the current Zoning Officer to issue a formal interpretation of the “relevant sections of the Code.” The letter states that any additional submissions or written arguments regarding the proper interpretation may be sent to the Zoning Enforcement Officer on or before the close of business on August 30th. 



Click on image to read the Corporation Council’s formal zoning interpretation process letter for the MUOD and the Kingstonian Project.

On August 28th, the attorney representing the Kingstonian applicant, Michael Moriello, submitted his written interpretation of the MUOD, concluding that “…there has been no waiver or violation of any zoning law 20% affordable housing requirement with respect to issuance of a Special Use Permit, as affordable housing guidelines do not apply to new construction within the Mixed Use Overlay District under the City of Kingston Zoning Law.”      


Click on image to read the Kingstonian applicant’s interpretation of the MUOD as it pertains to the Kingstonian Project.

On August 30th, the City forwarded that interpretation via email to the same three citizens with the instruction that “…written responses to the arguments submitted will be accepted for a period of one additional week.” That deadline is today, September 9th. 

So today, KingstonCitizens.org, assisted by attorney and counselor at law Emily B. Svenson, submitted a letter to the City of Kingston’s Zoning Officer rebutting the applicant’s attorney’s interpretation.  


Click on image to read KingstonCitizens.org and attorney Emily B. Svenson’s letter to the City of Kingston’s Zoning Officer rebutting the applicant’s attorney’s interpretation

What follows is a condensed version of our letter:

“KingstonCitizens.org is a non-partisan, grassroots, volunteer organization. Its purpose in commenting is to advocate for fair and proper application of the City’s zoning code, in accordance with the group’s ongoing advocacy for equitable housing, historic preservation, and environmental protection to benefit the Kingston community. Particularly for a project that is receiving significant public funding, it is vital to ensure that the project truly benefits the community.”

“In response to the applicant’s recent submittal, we respectfully ask that you expand your interpretation to determine whether the code authorizes new construction of residential uses at the proposed Kingstonian location. As this letter will show, it does not.”

“The applicant’s strenuous argument that the provisions of the MUOD do not apply to the Kingstonian raises an important question: Does the MUOD support the project at all?”

“The only authorization within the MUOD to establish a residential use is by converting an existing structure into apartments or live/work spaces. As the applicant agrees, that type of adaptive reuse would be subject to affordable housing requirements.”

“If the City of Kingston Common Council had intended for the MUOD to allow construction of new housing complexes, it would have written that into the overlay district. It did not. The Council was clearly attempting to facilitate the adaptive reuse of outdated buildings, while ensuring the resulting apartments would include affordable units. It defies logic to posit that the Council intended to simultaneously allow new construction of apartments without affordable units. Indeed, nothing in the code authorizes that use.”

“Because there is no authorization within the zoning code for new construction of housing at this location, we ask that you issue a determination that the project does not conform to the zoning code. The applicant would have multiple options to proceed, including pursuing a use variance or zoning change, or modifying the project to conform to the code.”

Citizen Action of New York submits FOIL to City of Kingston 

Meanwhile, on September 6th, Citizen Action of New York submitted a FOIL request to the City of Kingston for all communications between  the applicable City staff identified in the Kingstonian applicant’s Environmental Assessment Form and Addendum letter: 

“…copies of all records and documented communications, including written correspondence and emails between former City of Kingston Building and Safety Division Deputy Chief Tom Tiano, City of Kingston Fire Department Fire Chief Mark Brown, Kingston Planning Director Suzanne Cahill, City of Kingston assistant planner Kyla Haber and the Kingstonian applicant and development team from January 1, 2018 – May 1, 2019.”

Citizen Action also requested a 45-day extension of the review process for the Kingstonian applicant’s zoning amendment application in order to give the organization time to review the forthcoming information provided by the City. These communications may shed light on any discussions that the City had with the applicant regarding the interpretation of the zoning for the Kingstonian project site prior to the commencement of the project’s SEQR process.

Click on image to read Citizen Action of New York’s FOIL request to the City of Kingston and 45-day process extension.

What’s next?

On Wednesday September 11th, the Planning Board will convene for a special meeting to discuss the studies and comments it has received in relation to the Kingstonian project’s potential environmental impact. While it is unlikely that the Board will issue its SEQR determination at this meeting, the discussion should shed some light on the viewpoints of the individual members.  

VIEW Facebook event

Kingstonian Architect Presents Visual Impact Analysis at Heritage Area Commission.

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At last evening’s Heritage Area Commission (HAC) meeting, Steve MacKenzie of Mackenzie Architects P.C. presented his firm’s visual impact analysis for the Kingstonian project. It is the first time the architect has personally presented his design proposal to the community. Included in his presentation were new renderings not before seen by the public.

Although the HAC will play only an advisory role in this case, two of its members also serve on the Historic Landmarks Commission (HLPC), a decision-making body in the review process for the Kingstonian project. At last night’s meeting, HAC Chair Hayes Clement confirmed that no deliberations would be occurring before the project’s SEQR process has been completed.

MacKenzie noted that he will be making the same presentation to the HLPC at its meeting on Thursday September 5th.

Click on image watch the Visual Analysis Study review of the Kingstonian Project.

Kingstonian Visual Impact Analysis by MacKenzie Architects P.C.

Giovanna Righini, a Kingston resident and former longtime member of the HAC, spoke during the public comment portion of last night’s meeting. Righini was one of four volunteers who stepped down this spring in the wake of the City of Kingston executive branch’s efforts to merge the HLPC and HAC commissions against the will of council members, preservationists, civic advocates, and residents. Righini’s comments addressed the general role and responsibilities of the HAC:

I know that the Commissioners are all familiar with the Kingston Urban Cultural Park Draft Management Plan, which serves as the original basis for the Heritage Area Commission’s advisory work. Tonight I am here to put a reminder of it on the public record. As you review tonight’s materials, the HAC should have a clear understanding of the responsibility of its advisory role in structuring comments for the HLPC.

Per the Preservation Plan Approach in Part V, page 28, the Review Board is clearly laid out as follows:

“One of the most potent tools in promoting preservation is architectural and design review. The areas identified above [which include the Stockade District and West Strand] will be placed under the jurisdiction of the HLPC, the City’s existing preservation-oriented board. Standards and procedures set forth in the local laws establishing this Commission and creating the Stockade Historic and Architectural Design District will be applied to these areas as will applicable provisions in the recently adopted City zoning law and preservation standards established by the Secretary of the Interior…”

Continued under Preservation Standards and Guidelines in Part V, page 35, the Zoning Ordinance is noted as establishing preservation standards, guidelines and procedures within the City’s historic districts.

“Applicable portions of the Revised Zoning Ordinance require Landmark Commission review and approval of all applications for any changes made within these districts including construction, reconstruction, alteration, restoration, removal, demolition or painting. These requirements apply to all buildings, structures, out-buildings, walls, fences, steps, topographical fixtures, earthworks, landscaping, paving and signs.”

It goes on to describe requirements imposed by the ordinance pertaining to all aspects of compatibility with existing and adjacent architecture and character. “In short, every conceivable element of significance and compatibility.”

And so, also in short, if it is in a historic district, design review decisions are the purview of the HLPC. While the HAC can and should make comments, it should also make sure to clearly defer final decisions to the HLPC.

SEQR Process for Kingstonian Project Possibly to be ‘Segmented’

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On Wednesday, August 21st at 6:30pm, the Kingston Common Council Laws and Rules Committee will have their monthly meeting where they are expected to discuss the Kingstonian Development Group’s petition request to amend the Mixed Use Overlay District (MUOD) boundaries to include approximately 12% of its project site that is currently located outside of the district. The request came in June, and council members, at the direction of  Kingston’s Assistant Corporation Counsel, outlined a required 90-day time frame to include amending the zoning law. It included a public hearing that occurred last week.

At that meeting, members of the public pressed the city’s law-makers to not extend the MUOD zoning district without first seeking clarification about the overlay’s intent and applicability to the Kingstonian project. How does an overlay district that mandates the adaptive reuse of existing buildings and that 20% of the new residential units must be maintained as affordable housing — as the MUOD does — apply to the Kingstonian project, which proposes to be all new construction without any affordable housing?

As it turns out, initiating the 90-day time frame while the State Environmental Quality Review (SEQR) for this project is still underway would have been segmentation, which is contrary to the intent of SEQR. The Assistant Corporation Counsel has all but admitted this truth and has since stated that the 90-day requirement was firm unless the applicant requested or agreed to additional time. This is information that had not been provided at the July 19th Laws and Rules Committee meeting.

What is Segmentation? “Segmentation means the division of the environmental review of an action such that various activities or stages are addressed under this Part as though they were independent, unrelated activities, needing individual determinations of significance.”
(SEQR Handbook, page 59)

As there is only one action, or project, outlined in the Kingstonian’s Environmental Assessment Form (EAF), neither the zoning amendment nor the Common Council’s role in the matter is listed in the EAF.

IF A ZONING CHANGE IS REQUIRED THEN A NEW ENVIRONMENTAL ASSESSMENT FORM (EAF) WOULD BE TOO. On page 3 of the form it asks: “Is a zoning change requested as part of the proposed action?” The applicant checked “No” (see image below). The applicant would need to amend its EAF to correct this and list the amendment as one of the Common Council’s discretionary actions.  It is critical that all anticipated decisions by a particular agency be identified from the start in both the EAF and the addendum so that the potential environmental impacts associated with them can be considered together.

A revised lead agency coordination letter should then be sent to all involved agencies with accurate information about all of the approvals that would be required including the zoning amendment.


(caption) Top image: Page 3 of the applicant’s EAF asks whether a zoning change is part of the proposed action. The applicants answered “no.” Middle image: On page 2 of the addendum in the EAF where anticipated decisions by agency are listed, the zoning amendment is not identified. Bottom image: Page 6 of the addendum in the EAF the applicant notes that all planned uses were permitted when an amendment is required.


JUSTIFYING A SEGMENTED REVIEW AT THE TIME OF ITS DETERMINATION OF SIGNIFICANCE BY LEAD AGENCY.  According to SEQR law 617.3 (g) (1), if the EAF is not amended, then the Planning Board as lead agency will effectively be conducting a “segmented review” of the project. If they do that, the Planning Board “ must clearly state in its determination of significance, and any subsequent EIS, the supporting reasons and must demonstrate that such review is clearly no less protective of the environment. Related actions should be identified and discussed to the fullest extent possible.”

Planning Board to Accept Public Comments on Kingstonian Studies at August 19 Hearing

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From the Visual Impact Analysis report by MACKENZIE ARCHITECTS, P.C.. Vantage point of the proposed Kingstonian project from the Kingston Plaza Parking Lot at MAC Fitness Entrance.

Group Editorial

At the end of July, the City of Kingston’s Planning Office posted nine consultant reports pertaining to the proposed Kingstonian project to the City’s website. They were produced on behalf of the applicant, Kingstonian Development LLC, at the request of the Planning Board which they made in their June 4 meeting (see video of that meeting here). The Planning Board as lead agency in the State Environmental Quality Review (SEQR) of this project will weigh this information as it determines its environmental impact.

In that same meeting, in response to a question about the estimated timeline for review, Kingston Planning Director Suzanne Cahill stated that there would be no hearings on the project in the month of August. But on August 2 the Mayor issued a notice announcing two separate hearings for the Kingstonian that month, including one on Monday August 19 in which the Planning Board will hear public testimony on the consultant reports. The August 19 hearing will probably be the only opportunity for the public to raise questions directly to the Planning Board before it makes its determination.

Kingston Planning Board: Public Hearing on Kingstonian Premlinary Studies  Monday, August 19 at 6:00pm.  Kingston City Hall, 420 Broadway.

This means that the community was given just 19 days to digest nine reports worth of information about archaeological resources, visual impacts, geotechnical aspects, stormwater capacity, building demolition, traffic, water supply, sewage, and more—subjects few of us are experts in. Feeling overwhelmed? So are we. 

TAKE ACTION: Submit a request in writing to the Planning Board that they allow the public more time to review the reports.  planning@kingston-ny.gov

Kingstonian Consultant Reports

Herzog’s Warehouse Building Asbestos Survey Report (pdf)

Green Features of the Kingstonian Development (pdf)

Geotechnical Report (pdf)

Threatened and Endangered Species Habitat Suitability Assessment Report (pdf)

Preliminary Storm Water Report (pdf)

Traffic Impact Study (pdf)

Water Supply and Wastewater Capacity Preliminary Report (pdf)

Phase 1A Cultural Resource Investigation (pdf)

Visual Impact Analysis (pdf)


SEQR and Cultural Resources

There is a prevalent misconception that the “environment” in a State Environmental Quality Review pertains only to natural resources when in fact, according to the SEQR Handbook, “The terms ‘archeological’ and ‘historic’ are specifically included in the definition of the ‘environment’ at Part 617.2(l) as physical conditions potentially affected by a project.” The Handbook explains that such resources are:

“… also often referred to as cultural resources. These resources may be located above ground, underground or underwater, and have significance in the history, pre-history, architecture or culture of the nation, the state, or local or tribal communities. Examples include: 

  • Buildings (houses, barns, factories, churches, hotels, etc.), 
  • Structures (dams, bridges, canals, aqueducts, lighthouses, etc.), 
  • Districts (group of buildings or structures that have a common basis in history or architecture), 
  • Sites (battlefields, historic forts, prehistoric encampments, shipwrecks, etc.), 
  • Objects (ships, etc.), and 
  • Areas (gorges, parks, etc.).” 

The Kingstonian project site features more than one of these resource examples. The site is in an archaeologically-sensitive area; it contains a historic building—the late 19th century hotel building today the Herzog’s Warehouse; and most of the site lies within the National Register Stockade Historic District. It is also in close proximity to the Senate House State Historic Site. 

The boundaries of the Stockade Historic District. The project site is highlighted yellow.


Archaeological Resources

At the behest of the applicant, Joseph Diamond, a well regarded local archaeologist and professor at SUNY New Paltz, conducted a Phase 1A archaeological survey of the project site. A Phase 1A is an initial survey carried out to evaluate the overall sensitivity of the project area for the presence of cultural resources, as well as to guide the field investigation that follows. No subsurface probing is involved. (More information about archaeological surveys can be found here.) In his summary report, Diamond notes that: 

“The project area borders a National Register Historic District in a location where subsurface testing has never been undertaken. Potential archaeological deposits include, but are not limited to 1) the 1658 Stockade along the northern edge of North Front Street, 2) the moat constructed by Stuyvesant in June of 1658 which surrounds 3 sides of the stockade area, 3) deposits associated with the 17th-century Dutch and British Colonial Periods, and 4) deposits of Native American origin which may be mixed with or underlie the deposits from the 17th-century Dutch and British.”

Because of the site’s potential to yield significant pre-historic and historic archaeological information, Diamond recommends a Phase 1B field investigation, which would involve subsurface testing at select locations with the use of a backhoe.


Historic Resources

In a letter to the Planning Board dated March 11, 2019, the Kingston Historic Landmarks Preservation Commission (HLPC) outlined its concerns about the Kingstonian project. In submitting this letter—which was unanimously approved by the Commission at its March 7 meeting—the HLPC was fulfilling its role as an involved agency in SEQR. However, for reasons that remain dubious, Planning Director Suzanne Cahill advised the Planning Board to disregard that letter as they were reviewing responses from various agencies about the project at its June 4 meeting, confirming that it was still being “deliberated.” 

A relevant side note: Shortly after the HLPC’s letter was submitted to the Planning Board, two highly qualified members—a historic preservation specialist and an architect—were dismissed from the HLPC by Mayor Steve Noble. Two other members resigned in protest of his action. Since April, he has appointed four new individuals to the Commission. (See “CoK’s Executive Branch Move to Streamline Commissions May Impair Historic Preservation Efforts,” KingstonCitizens.org, April 4, 2019)

The concerns outlined in the HLPC’s March letter closely follow the SEQR criteria for determining significance, focusing on criterion “(v) the impairment of the character or quality of important historical, archeological, architectural, or aesthetic resources or of existing community or neighborhood character.” Specific concerns identified by the Commission include the potential to uncover archaeological resources; the demolition of the old hotel building and the potential to create a false sense of history by replicating it; the potential for negative impacts on nearby buildings from excavation and pile-driving; the degree of change to the visual context of the historic district and the Senate House caused by the new construction; and the altering of a major geographic feature, the bluff, which is a key element of the district’s significance (this bluff is discussed in a recent editorial in the Kingston Times, “Building on the past: the Stockade District’s tipping point,” July 28, 2019). 

While the reports prepared by the applicant’s consultants touch on some of the HLPC’s concerns, many remain open questions. 

Suggested requests that members of the public can make to the Planning Board as they review the applicant’s consultant reports:

  • When will the Phase 1B archaeological investigation be conducted? If significant archaeological resources are discovered, such as evidence of the original stockade, what contingencies will there be to mitigate adverse impacts to them during construction? When will those contingencies be established?
  • The geotechnical engineer should provide a summary assessment of the risks posed to nearby buildings by excavation and pile-driving for the project and how such risks can be mitigated. This assessment should be comprehensible to the general public. 
  • The applicant must demonstrate in photos and engineering reports the necessity of demolishing the old hotel building. The historic building should be documented in detailed drawings, including floor plans, elevations, and sections.
  • The applicant must illustrate the measures that will be taken to avoid creating a false sense of history with the replica hotel building. The Secretary of the Interior’s Standards for Reconstruction state that “Reconstruction will be based on the accurate duplication of historic features and elements substantiated by documentary or physical evidence rather than on conjectural designs or the availability of different features from other historic properties. A reconstructed property will re-create the appearance of the non-surviving historic property in materials, design, color and texture.”
  • Of the ten vantage points illustrated in the visual impact analysis, none show the proposed plaza in any detail, either of it or from it. This is an important experience to understand as it will be wholly new to the Stockade. Another vantage point that needs to be studied is from the intersection of Fair and North Front Street. Oddly, one of the vantage points included in the analysis is a view south along Wall Street with the Kingstonian out of frame. The purpose of showing this is lost on us.
  • The visual impact analysis does not include a vantage point of the Kingstonian from farther south along Wall Street. The usefulness of the perspective is to demonstrate whether or not the Schwenk Drive side of the Kingstonian development is visible from within the historic district. Other simulations suggest that the north side rises to a greater height than the development’s North Front Street building. 
  • The rendered perspectives show that the North Front Street garage entrance will be on axis Wall Street making this utilitarian building feature visible from a great distance.
  • Recognizing that the bluff is significant not only to the story of the historic district but to the history of the settlement of New York state and the nation and that the proposed changes to this feature would be irreversible, what options are there to mitigate this negative impact? The applicant and their architect should study this question carefully.

These questions address only the historic and  archaeological aspects of the project. Not touched upon here are concerns about traffic, storm water management, water supply, sewage, sustainability, and the lack of affordable housing. Each merit careful scrutiny by the community. With just four days left before the Planning Board’s public hearing, it is not likely that will happen.

TAKE ACTION AND VIDEO: Written Comments Accepted for Kingstonian Zoning Amendment Through Friday, August 16.

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PUBLIC ACTION: The public may submit written comments regarding the proposed zoning amendment for the Kingstonian Project to members of the Kingston Laws and Rules Committee through end of business on Friday, August 16th. READ: “Kingstonian Zoning Amendment and the Kingston Common Council”

Please send your comments to:

Andrea Shaut, Ward 9 Alderwoman: ward9@kingston-ny.gov
Chair, Kingston Common Council Laws and Rules Committee

Include members (especially if they represent you as a constituent):

Jeffrey Ventura-Morell, Ward 1 Alderman:   ward1@kingston-ny.gov
Reynolds Scott Childress, Ward 3 Alderman: ward3@kingston-ny.gov
Bill Carey, Ward 5 Alderman: ward5@kingston-ny.gov
Patrick O’Reilly, Ward 7 Alderman: ward7@kingston-ny.gov

By Rebecca Martin

At last night’s Kingston Common Council Laws and Rules Committee hearing, citizens provided their testimonies regarding the Kingstonian Development Group’s petition request to amend the Mixed Use Overlay District (MUOD) boundaries to include approximately 12% of its project site that is currently located outside of the district. The request came in June, and council members, at the direction of  Kingston’s Assistant Corporation Counsel, outlined a required 90-day time frame to include amending the zoning law. It included the public hearing that occurred last night.

As it turns out, initiating the 90-day time frame while the State Environmental Quality Review (SEQR) for this project is still underway would have been illegal in SEQR. The Assistant Corporation Counsel has all but admitted this truth and has since stated that the 90-day requirement was firm unless the applicant wanted or approved additional time. This is information that had not been provided at the July 19th Laws and Rules Committee meeting.

Read more…

Decision Makers Need To Clarify Zoning Petition Time Frame and Request Written Record of Zoning Interpretation for Kingstonian Project.

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PUBLIC REQUEST: Please request that the Kingston Common Council Laws and Rules Committee collect the official record from city staff (zoning officer, city planner and/or corporation council) to show – in writing – the city’s interpretation and application of the Stockade Mixed Use Overlay District (a zoning law created for adaptive reuse projects and affordable housing) to the Kingstonian Project (a new construction with market rate housing.)

By Rebecca Martin

Over the past many months upon discovering the Stockade Mixed Use Overlay District (MUOD) listed in the Kingstonian project’s application, we have asked how the overlay, created to encourage adaptive reuse to existing buildings for housing and including a percentage of affordable housing, could apply to a new construction without the affordable housing requirement.  The answer to that question has been virtually ignored by the City of Kingston so far. 

VIEW the original 2005 SEQR Findings Statement and Resolution that established the Stockade and Midtown Mixed Use Overlay district

Then, on June 4th, the Kingstonian development team delivered a zoning petition to the city requesting a zoning amendment to the MUOD to include a portion of the project property lot (about 0.313 acres, approximately 12% of the project) that was currently outside of the MUOD for inclusion.

Read more…

Kingstonian Preliminary Studies Now Available.

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“Ideally, new buildings in historic neighborhoods build on the place’s pre-existing narrative. They neither imitate nor snub it, but instead engage in a subtle architectural dialogue with the past. To achieve this requires a deep reading of the context and its significance. If a new project can’t contribute to the neighborhood’s narrative, then the next best hope is that it’s neutral to the neighborhood’s context; it neither adds to nor detracts from it. In other words, it doesn’t spoil the magic.” From “Building on the past: the Stockade District’s tipping point” by Marissa Marvelli in the Kingston Times.

By Rebecca Martin

The Kingstonian Project studies are now available on the City of Kingston’s website. There are nine of them: Cultural Resources, Visual Impacts, Traffic Impacts, Water and Sewer, Demolition, Stormwater, Habitat, Geotechnical and Green Concepts. 

The next Kingston planning board meeting is Wednesday September 4th at 6:00pm. A generic agenda is up, but you can keep track by following our FACEBOOK EVENT for updated information. We’re expecting that the planning board will set a public comment period for the studies, though that information is not yet available.

Please follow KingstonCitizens.org (sign up for our newsletter on the front page of our website) and friend us on FACEBOOK for updated event information.

Read more…

Kingstonian Zoning Amendment and the Kingston Common Council

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By Rebecca Martin

As the community waits for the Planning Board to issue a positive or negative declaration in the State Environmental Quality Review (SEQR) for the Kingstonian project, it has come to light that a portion of the Kingstonian site is located outside of the Mixed-Use Overlay District (MUOD) in Uptown Kingston and therefore requires an additional approval by the Kingston Common Council.

What is the Mixed Use Overlay in the Stockade District? 

“The Mixed Use Overlay District (MUOD) was adopted in 2005 as an amendment to the City’s Zoning Code following three years of debate. (See “Kingston council OKs Uptown/Midtown loft law,” Daily Freeman, 5 January 2005. ) Its primary purpose was to ease the regulatory burden of converting upper floors in existing commercial buildings to residential use. Instead of applying for a variance from the Zoning Board of Appeals, building owners could apply for a less onerous Special Use Permit from the Planning Board.

There are two MUODs in the city: the Stockade and Midtown. The thinking of council members at the time was that by making the adaptive reuse of commercial buildings in these districts easier, it would incentivize the creation of affordable housing units. Much of the text of the amendment (which was created with assistance by Greenplan, a planning consultant out of Rhinebeck) focuses on affordable housing, which is intended to be based on guidelines outlined therein. It is intended to apply to adaptive reuse projects containing five or more residential units wherein 20% of those units must be maintained as affordable (defined as 80% of the Ulster County median income.) Such units are to be dispersed throughout the proposed housing project, be indistinguishable from market-rate units, and the affordable unit rents are not to exceed 30% of a household’s income.

But there are few (if any) buildings in the Stockade that could accommodate five units or more. An analysis of these properties is likely to show that no affordable units have been created in the Stockade District with this regulation. (See  “Upstairs Apartments Fail to Materialize in Stockade, Midtown Kingston,” Daily Freeman, 11 February 2007.)

In addition to promoting the creation of affordable housing, the MUOD text describes a second underlying purpose: “to encourage mixed-use, mixed-income, pedestrian-based neighborhoods” (§ 405-27.1, subparagraph B-2.) It seems that the Kingstonian project, which neither proposes to build any affordable housing units nor seeks to adaptively reuse any buildings, is narrowly interpreting this second clause as the basis for its qualifying for the more expeditious Special Use Permit application process. (In its Environmental Assessment Form, the applicant flags the MUOD as an applicable zoning measure.) To achieve this second purpose, the amendment allows “site and building enhancements that promote a mixed-use, mixed-income, pedestrian-based neighborhood” to qualify for a Special Use Permit. Apparently, “site enhancements” can be interpreted to mean new construction. 

Read more…

VIDEO: Special Kingstonian Meeting 6/3/19

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“The purpose of tonight’s meeting is for the planning board to determine specific areas/studies which we believe will be critical for the decision making process with regard to the Kingstonian” – Wayne Platt, Chair of the Kingston Planning Board

At last night’s special Kingstonian meeting, the mood was oddly calm.  In about 1 1/2 hours, the planning board and applicant moved through their plans of what studies would be required in order for the board to make a determination of significance (pos or neg dec).  Outside of the planning board chair, only two members of the board posed any questions to the applicant, though they voted unanimously to pass a resolution for studies.  The applicant will provide its studies to the planning board for distribution in early July. A meeting will be scheduled for September for the planning board to make a determination or, to request more information from the applicant.

Read more…

Zoning, the Mixed Use Overlay District, Comprehensive Plans and the Kingstonian Project

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A comprehensive plan is a powerful document in New York State that creates a framework for making important decisions while guiding growth and development. Kingston’s own plan, adopted by the Common Council in April 2016, quite forcefully calls for an affordable housing requirement in new developments:

“Strategy 1.1.2: Require affordable housing for any new or expanded residential building or development project.  The City should consider expanding the number of projects that must provide a ‘fair share’ of affordable housing. Currently, affordable housing is only required for projects taking advantage of the mixed-use overlay district provisions.” (p. 21, Kingston 2025)

The City of Kingston continued to promote that goal in its 2017 Downtown Revitalization Initiative (DRI) application in which the Kingstonian Project was proposed:

“Housing development in the Stockade Business District (SBD) has been limited, and a significant percentage of renters in the SBD and surrounding area are cost burdened, spending more than 30% of their incomes on housing costs.”  (Executive Summary of the City of Kingston’s 2017 DRI application).

However, in February of 2019, the developers of the Kingstonian Project submitted an application that includes 129 market-rate residential units in the Stockade District. The mandate for affordable housing that is outlined in Kingston’s Comprehensive Plan seems to be ignored with this substantial project.

Read more…

Public Input with a Positive or Negative Declaration in SEQR

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In this image taken from the SEQR Cookbook, the top line “POSITIVE DECLARATION” illustrates robust public input for a pos dec determination in SEQR with many steps and opportunities. The bottom line “NEGATIVE DECLARATION” illustrates a neg dec determination where the review process concludes and there is no further opportunity for the public to participate as it relates to environmental impacts.

By Rebecca Martin

A recent Kingston Times article reported a claim by a member of the Kingstonian development team: “Dennis Larios is a civil engineer with long experience in Kingston. He’s currently working with JM Development Group on the Kingstonian project. Earlier this month, in a Facebook post, Larios suggested that his clients would likely walk away from the project if the planning board issues a “positive declaration of environmental significance.”

A day later, the Daily Freeman reported that a second member of the Kingstonian development team suggested that a determination of significance (and likely a negative declaration) would not be made for a very long time, as they had not yet provided the lead agency with all of the necessary information.

Attorney Michael Moriello said in a statement, “It is beyond presumptuous for these opponents to attempt to subvert the State Environmental Quality Review Act (SEQRA) review process by insisting upon a positive declaration of environmental significance before any potentially large impacts have had an opportunity to be identified and mitigated….Because we intend to follow all environmental review requirements and as we have not yet provided all of the necessary information and studies, we do not anticipate a determination of significance under SEQRA for (a) fairly lengthy period of time….we are confident that we will ultimately obtain a negative declaration of environmental significance so that the vast majority of city residents, visitors and business owners will ultimately benefit from the environmental review and the Kingstonian’s attendant economic, cultural and employment benefits.”

When SEQR begins, a series of specific actions are to take place starting with a 30-day window for the involved agencies to approve or deny the request for lead agency.  An involved agency may also “state their interests and concerns regarding selection of lead agency and potential impacts of the overall action” (SEQR handbook, page 66, item #5).  That’s exactly what the Historic Landmarks Preservation Commission has done as a responsible involved agency along with three interested State agencies which submitted comments to the Kingston Planning Board within the 30-day window for lead agency selection or the 20-day window for determination of significance which I describe next.

Read more…

The ‘Pit’ In Our Stomach Was a Negative Declaration in SEQR

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The photo reveals the ICC property looking North from Abeel street, where the developers appear to use “plywood” to mitigate damage.

By Rebecca Martin

After the ground gave way for the neighbors 7-year-old son to fall into the Irish Cultural Center’s project pit, residents living next door worried that their home property line would further erode with that night’s torrential downpour. Erosion has been an issue since last summer due to the apparent poor excavation practices and lack of oversight of the project.

As far as we are aware, the project does not have a stormwater plan in place to mitigate the impacts of rain storms that have compromised the site and Company Hill Path, a significant historic resource adjacent to the surrounding  properties.

Read more…