Ken Mar development is allowed access to property it wishes to build on off of East Avenue, according to state Supreme Court Justice Thomas Nolan.
Ken Mar Development sued the city last August when Public Works Commissioner Thomas McTygue placed a dump truck on a paper street leading to Ken Mar’s East Avenue parcel. A paper street is a street that exists in plans, but has yet to be developed.
In the suit, Ken Mar sought access to the site to start building and monetary damages for violations of its constitutional rights. In a ruling released on Thursday, May 17, Nolan granted Ken Mar an easement for the unmapped path so it could start building and denied the city’s motion to dismiss claims for damages.
Obviously, they are very excited, said Michele Anderson, Ken Mar’s attorney.
`They have done everything lawfully, and they feel like they have been vindicated.`
She said Nolan will decide over the next year if the Public Works Department violated Ken Mar’s equal protection, due process and just compensation rights.
The development company wants to build a duplex on their property, but neighbors of the parcel had spoken against the development.
The company already had gained approval from the city planning board and building department to begin building.
Assistant City Attorney Anthony Izzo said the city was waiting to review Nolan’s decision before deciding whether to appeal it.
Izzo said there had been some delay in the suit because of its uncommon nature.
`This is a slightly unusual Article 78 lawsuit in the sense there are some Constitutional charges in it,` he reported to the Saratoga Springs City Council late last year.
`Essentially, they are making claims that their Constitutional rights have been infringed upon by the DPW placing a truck in the access way to their property,` Izzo said after the meeting.
Ken Mar Development filed a lawsuit asking a judge to order the removal of a Public Works vehicle blocking access to a 1,700-square-foot plot of land the development company acquired in 1994.
In the lawsuit, Ken Mar owners Tony Martino and Bob Kenyon cite the Fifth Amendment to the U.S. Constitution: `No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.`
The builders plan on constructing a duplex on the property, which is located just off the corner of Bingham Street and Martin Avenue.
McTygue had the truck parked to block access to the property on Aug. 7, but Izzo said the truck was removed after a discussion with the DPW two weeks ago.
McTygue has said that in order for Ken Mar to develop the street, they must first get approval from the Public Works Department. McTygue said normally paper streets are developed into real streets after developers submit plans that meet city specifications and get permission.
He said he blocked access to the lot because Ken Mar was trying to use city-owned property as a `private driveway` into their project. He also accused the developers of clearing trees and brush from city-owned property.
The lawsuit was the latest incident in a years-old battle to develop the property that was part of a subdivision Ken Mar had received approval for in 1997. Ken Mar Development purchased a plot of land near Martin Street in 1994, as part of the same transaction that brought them the stretch of land on East Avenue that now accommodates duplexes.
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