Heavy Weight House Fight

A legal battle has raged for 10 months – with challenge after challenge, all of which the Kitchens have so far won.

On July 26, State Supreme Court Judge Robert Muller heard arguments on another temporary restraining order Mr. Hearst and others are seeking.

Some find the foes’ actions outrageous. Queensbury Planning Board member Paul Schonewolf says, “In my 34 years as an elected or appointed official in Niskayuna and Queensbury, this is the most vicious attack on an applicant I have ever seen.”

The Kitchens’ attorneys, Jon Lapper and John Wright, of the Glens Falls law firm of Bartlett, Pontiff, Stewart & Rhodes, in court papers, accused the project foes of “knowingly advancing frivolous and meritless claims” that don’t warrant court action.

On June 25, the Queensbury Planning Board voted unanimously, 7-0, to approve the Kitchens’ plan.

The same day saw dismissal of another attempt at a restraining order, this one trying to stop the town Planning Board from considering the Kitchens’ plan.

Earlier, engineer Dave Klein – whom Mr. Hearst and another neighbor indicated is representing them – appealed to the state building code Board of Review two decisions made by Queensbury Code Enforcement Officer Dave Hatin.

The appeals were unanimously rejected.

Project foes also appealed to the Estate Department of Health, the Department of Environmental Conservation, the Adirondack Park Agency and the Lake George Park Commission. All reported no violations, according to documents filed with the town.

At one point, Mr. Klein asked the APA to inspect the property, which it did in March. It sent a letter to the town stating it found no violations and the case was closed.

Lawsuit: ZBA approvals wrongly given

The opponents have filed an Article 78 lawsuit, to be heard by Judge Muller. It claims the variances approved by the Zoning Board of Appeals violated “numerous statues and regulations” and would cause “irreparable harm and injury to their neighbors and the entire community which uses and treasures Lake George.”

Chris Navitsky, the “Lake George Waterkeeper” employed by the FUND for Lake George, told the Planning Board on June 25, “We remain concerned about the potential negative impacts to the wetlands from the excavation, clearing and grading, and fail to see the benefits of allowing disturbance closer to the wetlands and removing the protective buffer.”

Neighbors listed as petitioners include Mr. Hearst, Evelyn Jaeger, Shirley Mockel and Winifred Kathleen Mahoney.

Mr. Klein and Mr. Navitsky, the “Waterkeeper,” are also party to the lawsuit.

Mr. Klein declined comment when contacted. Messages left for Mr. Hearst, Mr. Navitsky and FUND for Lake George Executive Director Eric Siy had not been returned by press time. Mr. Hearst became a board member of the FUND for Lake George in February.

Arkley Mastro, the attorney for the petitioners, declined comment when contacted.

Stormwater management at issue

The Kitchens say they have gone above and beyond to install stormwater management procedures on the property, “and yet we are being portrayed as not caring about the environment,” Mr. Kitchen said.

The irony, he said, is that “no other homes are treating stormwater on Assembly Point, and we’re taking into account the best environmental practices, and yet some neighbors are still against it.”

Mr. Lapper said, “the neighbors that are opposing this primarily have absolutely no stormwater controls because the stormwater regulations were passed subsequent to their development.”

“This property is being constructed with stormwater controls, but because of the size of the lot and the slope, they weren’t able to comply 100% with the stormwater regulations, and that is why they needed some area variances, but they are implementing all sorts of stormwater controls which their neighbors don’t have.”

In response to the request for a temporary restraining order, the Kitchens’ engineer Tom Center says that all of the stormwater on the property is now flowing untreated into the nearby wetland. He says the Kitchens’ plans will decrease the amount of stormwater runoff.

Their attorney, Mr. Wright, wrote, “The FUND for Lake George and the Lake George Waterkeeper, which tout themselves as stewards of Lake George, are thus acting in direct contravention of their publicly stated purpose in favor of assisting private landowners in a ‘not in my backyard’ suit.”

First sought approval in Sept. 2012

The Kitchens first applied for site plan approval in September 2012. They were advised by the Planning Board to seek variances from the Zoning Board of Appeals before their site plan could be heard.

“The location of the land, next to a wetland, means we are subject to New York State Stormwater Management regulations,” Steve Kitchen said. “We went to the Lake George Waterkeeper’s Website and incorporated a lot of the ideas on there, and designed two rain gardens to treat all of the stormwater on the site.

“We tried to go above and beyond what were required. We even plan to put in a permeable driveway to help stop runoff.”

Still, the Kitchens needed several variances, which they obtained from the Zoning Board of Appears in May on a 4-3 vote.

There was opposition. In the lawsuit, the petitioners say “there are other properties to the south of the Kitchen property on Forest Road, including property belonging to petitioner George R. Hearst III, that would have access and potential use negatively impacted if the Kitchens put fill and rain gardens on that land just to the east of their property.”

Meanwhile, neighbor Evelyn Jaeger and Mr. Klein, whom she hired, sought approval to install a new septic system on her lot just 10 feet from the property line and near where the Kitchens eventually dug a well.

In a sworn affidavit, Queensbury Code enforcement officer Dave Hatin said, “The application to place the septic system in the location most recently requested came only after the Kitchens submitted their application for variances indicating where they intended to place their well.

“This is the only viable location for the well on the property.

“…Moreover, should Ms. Jaeger in the future desire to replace her septic system, she has sufficient property to do so.”

Mr. Lapper termed it the first septic system he has ever seen proposed “for spite.”

If allowed, it would have precluded the Kitchens from digging their well.

The Kitchens said they bought the .34 acre lot from Linda Delaura on April 25 for $25,000. The land was originally listed for $50,000.

Mrs. Kitchen said Ms. Delaura “agreed to take less money because it would cost so much more with the engineering that needed to be done.”

Ms. Delaura told The Chronicle in early 2012 that Mr. Hearst offered her $17,000 for the land. She said she rejected the offer.

The Kitchens, who did not want to disclose where they work, still aim to build their house and say, “We just want to enjoy our property and be left alone.”

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