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HomeMy WebLinkAbout20230391 177 S Broadway Stewarts Demo & Construction Stipulation and Order of SettlementSUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SARATOGA In the Matter of STIPULATION AND ORDER Or' SETTLEMENT STEWART'S SHOPS CORP, and 177 SOUTH BROADWAY, LLC, Index No.: EF20242219 Petitioners -Plaintiffs, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules -against- CITY OF SARATOGA SPRINGS DESIGN REVIEW BOARD and JOEL ROBERTS, Respondents -Defendants, WHEREAS, Petitioners -Plaintiffs Stewart's Shops Corp. and 177 South Broadway, LLC (collectively, "Stewart's" or "Petitioners") sought to redevelop one of its Stewart's Express shops located in the City of Saratoga Springs, which would require the razing of the neighboring property at 28 Lincoln Avenue, Saratoga Springs, New York (the "Property"), which Petitioners were in contract with Nominal Respondent -Defendant Joel Roberts to purchase said Property; and WHEREAS, the Property is located in the Saratoga Springs architectural review district pursuant to the Unified Development Ordinance for the City of Saratoga Springs (the "UDO"), which meant that for the Property to be razed, Petitioners and Defendant Roberts as property owner were required to make an application to the Respondent -Defendant the City of Saratoga Springs Design Review Board (the "DRB") to determine whether or not the Property is historically significant; and WHERE AS, the Planning Board for the City of Saratoga Springs (the "Planning Board") has the exclusive authority over site plans pursuant to New York General City Law § 27-a, which provides that a City may designate the planning board "to review and approve, approve with modifications or disapprove site plans, prepared to specifications set forth in the ordinance or local law and/or in regulations of such authorized board. Site plans shall show the arrangement, layout and design of the proposed use of the land on said plan"; and WHEREAS, the City of Saratoga Springs designated the Plarming Board with exclusive authority under Section 13.5 of the UDO to conduct site plan review; and WHEREAS, on or about June 6, 2023, Petitioners and Defendant Roberts as property owner applied to the DRB seeking a determination as to whether or not the Property is historically significant; and WHEREAS, on or about June 12, 2024, the DRB issued a determination finding that the Property retains "significant architectural character" and "significant historical character," and WHEREAS, Petitioners then commenced the above -captioned hybrid action/proceeding in New York Supreme Court, Saratoga County, Index No. BF20242219, pursuant to CPLR Article 78 and CPLR 3001 by Notice of Petition and Summons and Verified Petition and Complaint dated July 11, 2024 against the DRB and Defendant Roberts seeking to annul the June 12, 2024 determination of the DRB as arbitrary, capricious, irrational and in violation of the Open Meetings Law, and seeking to declare Section 13.9 of the City of Saratoga Springs UDO unconstitutional (the "Litigation"); and WHEREAS, on or about July 17, 2024, Petitioners applied to the DRB for demolition of the Property; and 2 WHEREAS, the DRB was served by personal service on July 18, 2024, and Mr. Roberts accepted service via email and provided written waiver of personal service on August 6, 2024 but has not appeared; and WHEREAS, on or about October 16, 2024, Petitioners submitted a supplement to their demolition application to the DRB providing evidence requested by the DRB during the DRB's August 7, 2024 meeting; and WHEREAS, the DRB requested an extension of time to respond to the Verified Petition and Complaint on or before October 18, 2024, which Petitioners consented to; and WHEREAS, the DRB requested a further extension of time to respond to the Verified Petition and Complaint, which Petitioners objected to; and WHEREAS, on or about December 11, 2024, the Court ordered an extension of the DRB's time to respond until February 28, 2025 (Dkt. No. 34); and WHEREAS, on or about January 8, 2025, Petitioners submitted an additional supplement to their demolition application to the DRB at the DRB's request; and WHEREAS, on or about January 31, 2025, the DRB issued a Notice of Decision, annexed hereto and incorporated as if fully set forth herein, as Exhibit A (the "Notice of Decision"); and WHEREAS, in the Notice of Decision the DRB "found that the applicant has satisfied the requirements and provided sufficient good faith documentation to allow the board to move forward with a conditional approval of demolition. The board has concluded that adapting the property for a permitted use is not capable of earning a reasonable return, and that moving the structure is not a viable option. The Board further finds the applicant has satisfied the condition of submitting a post- demolition redevelopment plan, but finds the presented plan to be unapprovable as presented and encourages the applicant to reconsider placement, orientation and design of the structure as discussed"; and WHEREAS, in the Notice of Decision, the DRB further noted that "[t]he Board finds that the stipulation of requirement 2 poses a unique circurnstance in this application, and the applicant's proof on this point cannot withstand the literal application of the statute. There are unique, extenuating circumstances involved. Taking this unique situation into consideration, and considering all of the facts of the application, the board finds it is preferable to grant the application based on the proof submitted"; and WHEREAS, in the Notice of Decision the DRB conditioned its approval for demolition upon the following conditions: 1) The full understanding that the post demolition plan is NOT approvable as is. We are allowing it to be labeled acceptable only in the sense that professional post -demolition plans for re -development have been presented. Acceptable in the sense that it contains professionally drawn up plans. A professionally drawn up plan is required as good -faith documentation that the site will be re- developed, it is not an indication that the plans provided are approvable. The applicant will need to reconsider placement, orientation and overall design prior to coming back in front of the DRB for full review. 2) That the applicant must obtain all necessary approvals and permits for the post -demolition plan, including a full review and approval form [sic] the Design Board. Such approvals and permits must be obtained before any efforts at demolition of the building are undertaken. 3) That the applicant will make all reasonable efforts to salvage materials and components from the building that may be used in period -correct renovation efforts for other buildings and structures. For the reasons above stated, the applicant's application for demolition is approved, upon the conditions stated. Exhibit A at 2; and 2 WHEREAS, the Notice of Decision was approved by a 5-2-1 vote of the DRB; WHEREAS, Petitioners indicated to Respondents their intent to, among other things, challenge the January 31, 2025 determination of the DRB on the ground that the conditions imposed therein are unlawful, to seek a determination regarding the powers of the respective Saratoga Springs boards, including but not limited to the DRB and the Planning Board, and to name the City as a Respondent -Defendant in any such challenge; and WHEREAS, the parties now wish to resolve any outstanding disputes regarding the Property, including the Litigation; and IT IS HEREBY STIPULATED AND AGREED by and between the undersigned that the above -entitled matter is hereby settled in accordance with the following terms and conditions: 1. Prior to razing the Property, Petitioners must: (1) obtain site plan approval from the Saratoga Springs Planning Board; (2) obtain all other necessary approvals and permits for the post - demolition plan including review and approval within the authority of the Design Review Board, as set forth herein, prior to demolition; and (3) make reasonable efforts to salvage materials and components from the building that may be used in period -correct renovation efforts for other buildings and structures. 2. The DRB acknowledges that its architectural review authority with respect to this application is limited as specified in the UDO, and that such specific authority relates generally to the height, scale, mass, proportion, architectural rhythm, textures, materials and colors used in buildings and structures on the Property. 3. More specifically, the DRB acknowledges that it is without authority to act with respect to building location, orientation (insofar as it relates to placement of entrances to the building), placement, setbacks, and traffic flow as it relates to this application. 5 4. Within five days of execution of this Stipulation and Order by the Court, the parties agree to execute, and Petitioners agree to file, a stipulation of discontinuance of the Litigation, subject to compliance with this Stipulation and Order, 5, It is further agreed and understood that this Stipulation and Order shall be binding on the parties hereto, their successors and assigns. 6. To the extent there are any conflicts between this Stipulation and Order and any other directive, this Stipulation of Settlement and Order supersedes the following, inter alia, the Notice of Decision, any prior decisions or determinations by the DRl3, and/or any provisions of the UDO in conflict. 7. Each of the Parties executing this Stipulation and Order warrants and agrees that they have Rill power and authority to execute, deliver and abide by the terms of this Stipulation and Order on behalf of themselves and all those for whom they are acting; that this Stipulation and Order is a legal, valid and binding obligation enforceable against themselves in accordance with its terms; that this Stipulation and Order has been reviewed by their respective attorneys; and that they have executed and delivered this Stipulation and Order after full and satisfactory consultation with such attorneys. [signature pages to follow] 31 Dated: Albany, New York May 8, 2025 Dated: Saratoga Springs, New York May 8, 2025 SO ORDERED: Hon, Richard A. Kupferman, J.S.C. May _, 2025 WHITEMAN OSTERMAN & HANNA LLP BY: John J. enry, E Jennifer . Yetlo, Esq. Attorneys for Petitioners -Plaintiffs One Commerce Plaza Albany, New York 12260 (518) 487-7600 ihenry@woh.com iyetto@g woh.com OFFICE OF THE CITY ATTORNEY CITY OF SARATOGA SPRINGS, NY Attorney for Respondent -Defendant City of Saratoga Springs Design Review Board City Hall 474 Broadway Saratoga Springs, New York 12866 (518) 587-3550 lonV.izzo a saraloga-springs,on, CITY OF SARATOGA SPRINGS DESIGN REVIEW BOARD City Hall - 474 Broadway Saratoga Springs, New York 12866 Tel: 518-587-3550 x.2533 NOTICE OF DECISION In the matter of the application #20230391 Stewart's Redevelopment Plan - Demolition 28 Lincoln Avenue Saratoga Springs, New York 12866 Tamle Ehinger, Chair Rob Do Boff, Ulce Chalr Chris Bennett Leslie DlCarlo Jeff Gritsavage Tad Roemer Geoff Wood Karen Cavotta, Alternate Kennedy Flack, Alternate Involving an application for the demolition of a residential building in an architectural review district located at 28 Lincoln Avenue. The Board determined by decision on June 12, 2024 that the subject building has significant historic and architectural significance, a finding that, pursuant to section 13.9 (J) (3) of the Unified Development Ordinance, requires the applicant to provide good cause as to why the subject structure cannot be preserved. The applicant must provide the following: 1. The applicant must document good faith efforts in seeking an alternative that will result in the preservation of the structure including consultation with the Design Review Board and the Saratoga Springs Preservation Foundation. The relocation of structures may be permitted as an alternative to demolition. ii. The applicant must document efforts to find a purchaser interested in acquiring and preserving the structure. iii. The applicant must demonstrate that the structure cannot be adapted for any other permitted use, whether by a current owner or by a purchaser, which would result in a reasonable return. iv. The applicant must submit evidence that the property is not capable of earning a reasonable return regardless of whether that return represents the most profitable return possible. "Dollars and cents proof' is required to demonstrate such hardship. v. Application for demolition of a structure with historic or architectural significance must include acceptable post -demolition plans for the site. Such plans include an acceptable timetable and guarantees which may include performance bonds/letters of credit for demolition and completion of the project. The Design Review Board may condition the issuance of a demolition approval on the applicant's receipt of all other necessary approvals and permits for the post -demolition plan. The Board received information dated July 17, 2024, considered presentation by the applicant's representative before the Board on August 7, 2024, and received additional information dated October 16, 2024 and January 8, 2025 in further support of good cause demonstration that the structure cannot be preserved. In consideration of the above information, the Board found that the applicant has satisfied the requirements and provided sufficient good faith documentation to allow the board to move forward with a conditional approval of demolition. The board has concluded that adapting the property for a permitted use is not capable of earning a reasonable return, and that moving the structure is not a viable option. The Board further finds the applicant has satisfied the condition of submitting a post- demolition redevelopment plan, but finds the presented plan to be unapprovable as presented and encourages the applicant to reconsider placement, orientation and design of the structure as discussed. The Board finds that the stipulation of requirement 2 poses a unique circumstance in this application, and the applicant's proof on this point cannot withstand the literal application of the statute. There are unique, extenuating circumstances involved. Taking this unique situation into consideration, and considering all of the facts of the application, the board finds it is preferable to grant the application based on the proof submitted. With this in mind, the board conditions its approval upon the following: 1) The full understanding that the post demolition plan is NOT approvable as is. We are allowing It to be labeled acceptable only in the sense that professional post -demolition plans for re- development have been presented, Acceptable in the sense that it contains professionally drawn up plans. A professionally drawn up plan is required as good -faith documentation that the site will be re -developed, it is not an indication that the plans provided are approvable. The applicant will need to reconsider placement, orientation and overall design prior to coming back in front of the DRB for full review. 2) That the applicant must obtain all necessary approvals and permits for the post -demolition plan, including a full review and approval form the Design Board. Such approvals and permits must be obtained before any efforts at demolition of the building are undertaken. 3) That the applicant will make all reasonable efforts to salvage materials and components from the building that may be used in period -correct renovation efforts for other buildings and structures. For the reasons above stated, the applicant's application for demolition is approved, upon the conditions stated. This Decision moved at a regular meeting of the Board on January 29, 2025 Record of vote: motion to approve made by T Ehinger, seconded by R DuBoff: passed 5-2-1 In favor: TEhinger, I_DiCarlo, RDuBoff, TRoemer, K Cavotta Opposed: CBennett, JGritsavage, Recuset: G Wood As a result of this decision, the applicant: 0 may proceed with the proposed project as approved Please contact the Building Department to verify permit requirements. January 31 2025 Chair Received by Accounts cc: Building Department Accounts Dept, Applicant/Agent Page 2 of 2