DROMORE: TOWN AND NATURE CENTER STAY NEUTRAL ON NUNS’ EFFORT TO ENFORCE RESTRICTIVE COVENANTS BARRING CONSTRUCTION OF APARTMENT HOUSES ON DROMORE ROAD The Town of Greenburgh, which owns the Greenburgh Nature Center, is officially staying neutral on the issue of whether to support the Sacramentine Nuns in their battle against S&R Development Estates, LLC in their efforts to enforce a restrictive covenant barring the construction of “any tenement or flat house so-called” on the 2.3 acre site that S&R acquired in 2006. S&R sued the Nuns and the Town this summer to get a court ruling either extinguishing the restrictive covenant or declaring that it is not enforceable. In August, the Nuns moved to dismiss the lawsuit on the ground that the restrictive covenant, which was created when the property was originally subdivided in the early 1900s, bars the construction of apartment buildings, and that the covenant is as legally binding today as it was when it was created more than 100 years ago. Among other things, the Nuns pointed out that when the Scarsdale Woods apartments were constructed in the early 1980s, the owners of the land there had to obtain releases of the covenants from all other property owners in the subdivision, including the prior owners of S&R’s property, before construction could proceed. The Nuns also said in their legal papers that they relied on the existence of the covenant when they purchased their property in early 1998 – it was noted in their title report -- and that, while they had no problem with the release that was given years ago so that Scarsdale Woods could be created, they pointed out that those apartments cannot be seen at all from the Nuns’ property, while the proposed new apartments would be directly in their line of sight and would disturb the peace and quiet that is essential to their monastic lifestyle for which they purchased the property in the first place. The covenant was first placed on the S&R property on March 12, 1912 – exactly one week after New York State enacted the Tenement House Act of 1912, which defined the term “tenement” in New York to mean “apartment house.” The Town, however, filed papers last week in which it stayed officially neutral on the issue, refusing to take a position one way or the other, and thus letting the Nuns fight the battle entirely on their own. The Nuns are represented by former Edgemont Community Council president Bob Bernstein. The ECC has agreed to cover Mr. Bernstein’s out-of-pocket costs in the legal action. S&R is trying to build a 45-unit apartment house on its site, which is adjacent to the six-acres owned by the Sisters of the Blessed Sacrament, a group of cloistered Sacramentine Nuns, and to the 33 acres of undeveloped land owned by the Town and used by the Nature Center. However, the property is also adjacent to the three acre site occupied by the Scarsdale Woods apartments. S&R acquired the Dromore property in a legal settlement in 2006 with the prior property owner to whom S&R paid $1.4 million. S&R acquired the property in the hope that it can be developed for multifamily housing. In 2005, S&R had obtained an appraisal of the property showing that the property would be worth as much as $10 million if it could be developed for multifamily housing. The prior owner had agreed to participate with S&R in developing the property, thinking S&R intended to construct two or three single family homes, but backed out of the deal when S&R discovered an error in the Town’s zoning map had resulted in the property being mistakenly zoned for multifamily housing. In 1997, town officials mismarked the Town’s official map and the 2.3 acre Dromore property at issue was mistakenly classified as being in the Town’s Central Avenue Multipurpose District or CA zone, which permits multifamily housing, instead of in a zone for single family residences only, which is where the property had always previously been classified. Under the Town Code, the Town’s official zoning map is supposed to be signed every time it is revised by the town supervisor who is supposed to make sure there are no errors. Town Supervisor Paul Feiner generally did not perform this function and as a result, several dozen errors – including this one -- have been made to the Town’s zoning maps during the years Feiner has been in office. In January 2012, a state supreme court judge ruled that because the Town had failed to properly correct the zoning map, the Dromore property was in the CA zone and, based on that ruling, S&R has been demanding that the Town’s Planning Board grant site plan approval for its 45-unit apartment building. That decision is being appealed by the Town. In September 2012, the Town amended its zoning map to correct the zoning classification of the Dromore property, along with several dozen other errors that had been identified. In the meantime, the Town’s Planning Board had been holding public hearings on whether to grant site plan approval to S&R’s proposed apartment building, and during the course of those public hearings, the Sacramentine Nuns put S&R on notice that even if it were to prevail in court on the zoning issue, the Nuns would seek to enforce the restrictive covenant barring the construction of apartments on the site in any event. The Planning Board suspended those hearings in April 2013 after an appellate court indicated that the Town’s September 2012 zoning map corrections were legally enforceable. However, in late August 2013, a lower court ruled that the Town’s corrections to the zoning map were legally unenforceable as against S&R; the Town is now appealing that decision, but because the lower court’s ruling ordered the Town to change the zoning to benefit S&R, the Town’s appeal of that ruling automatically stays it from becoming legally enforceable until the appellate court rules. While the zoning litigation continues to unfold at the appellate court legal, in legal papers filed last week, the Town made clear that it is not taking any position on whether the restrictive covenant barring tenements should be enforced or is enforceable. Instead, the Town said it opposed the construction of S&R’s apartment building solely on the ground that, as proposed, it is built within 100 feet of Dromore Road itself, and there is another restrictive covenant on the property, which it does intend to enforce, that bars construction of any buildings within 100 feet of the road. S&R meanwhile took the position in its legal papers that the Town could not legally support the enforcement of the covenant against “tenements.” In response, the Town said it did have legal standing to support the enforcement of the covenant, but chose not to take a position at this time. The Edgemont School District also did not take a position on the enforcement of the covenant on the ground that the issue of the covenant’s enforcement is a matter of law for the court to decide. The court is not expected to rule on the restrictive covenant issue until sometime next year.
Posted on: Mon, 04 Nov 2013 21:25:58 +0000
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