The man behind a proposed steel and concrete plant on Route 28 in the town of Kingston lost his appeal in a different proceeding of a state Supreme Court ruling upholding the town of Woodstock’s refusal to issue a certificate of occupancy for his Tonshi Mountain home.
Thomas Auringer filed an Article 78 lawsuit against Woodstock Building Inspector and Code Enforcement Officer Ellen Casciaro, the town’s Zoning Board of Appeals and Planning Board, arguing a ZBA decision was arbitrary and capricious.
State Supreme Court Judge Christopher Cahill dismissed the case and Auringer appealed. On December 23, 2021, the Third Judicial Department of the Supreme Court Appellate Division upheld Cahill’s dismissal.
“We find that the ZBA properly interpreted the zoning ordinance that respondents promulgated and are responsible for administering and, therefore, its determination will not be disturbed,” wrote the court in its decision.
Supervisor Bill McKenna said he believes Auringer will continue to appeal the decision.
The town argued Auringer clearcut trees and constructed a highly reflective roof in the Scenic Overlay District in violation of zoning regulations. Auringer argued the town improperly made the roof and exterior modifications part of remediation for clearcutting in the Scenic Overlay District.
But Cahill said the clearcutting and roof are related and his actions after getting a building permit didn’t help matters. “Although the record establishes that petitioner acknowledged at a Planning Board meeting that the clear cutting was a mistake, his actions, after the building permit was issued, were illegal and the clear cutting significantly contributed to the visibility of the metallic roof,” the court wrote. “Further, petitioner’s refusal to consider any proposal to paint or otherwise treat the roof did not allow respondents, under their zoning ordinance, to cause the special use permit and certificate of occupancy to be issued.”
The town’s decision “had a rational and clear linkage to the petitioner’s illegal clearcutting in the scenic overlay district and the need for remediation of the glare from the petitioner’s metallic roof which was muted prior to the petitioner’s actions,” Cahill had ruled in the initial lawsuit.
And the Appellate Division agreed.
“Contrary to the petitioner’s contention, the Planning Board did not exceed its authority by allowing the additional violation of exterior modifications without a special use permit to be included in its determination as to what remediation was necessary,” the court wrote.
“Petitioner, by engaging in clear cutting after the building permit was issued, caused the clear cutting and roof issues to be inextricably intertwined so that the remediation caused by the unlawful clear cutting could not be accomplished without mitigation of the roof glare.”
Auringer’s next step would be to take the matter to the Court of Appeals, the highest court in the state, which is comprised of a chief judge and six associate judges. It is considered the court of last resort.
Legal woes persist for 850 Route 28
Meanwhile, Town of Kingston officials issued a violation notice to Auringer’s 850 Route 28 LLC in December for not following regulations that require separate stormwater systems. The town action is in addition to a cease-and-desist order issued by the state Department of Environmental Conservation in November for polluting five ponds with sediment from land clearing.
The DEC ordered Auringer to immediately stop all construction except for work necessary to correct erosion and sediment control issues.
Auringer uses the land to store construction equipment for his other businesses.
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