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COURT RULES DEED RESTRICTION ON DROMORE BARS MULTIFAMILY HOUSING AS FEINER REDRAWS ZONING MAP TO ALLOW DROMORE PROPERTY FOR MULTIFAMILY USE

In a major victory for Edgemont’s cloistered nuns on Dromore Road, a New York state supreme court judge last month ruled that a century-old deed restriction barring construction of a “tenement or flat-house so-called” covers modern apartment buildings of the type being proposed by developer S&R Development Estates LLC, which sued the nuns to declare the deed restriction unenforceable.

In her ruling, state supreme court justice Joan Lefkowitz said, “The plaintiff and the defendant, Sisters of the Blessed Sacrament, Inc., are owners of contiguous lots who trace their title to a ten-lot subdivision by the Fountain Family in the early 1900s. Plaintiff traces its title to a March 12, 1912, deed which conveyed Lot 5 of the subdivision. This deed, like all deeds transferring title of the original subdivided lots, contained a restrictive covenant restricting the use of the land in various ways. One covenant prohibited the erection of a “tenement house or flat house so-called” on the premises.”

The court then went on to hold that S&R’s claim for a judgment declaring that the term “tenement house or flat house so-called” does not prohibit “the construction of a modern apartment building such as proposed” by plaintiff, fails to state a cause of action.

“At the time the deed containing the restrictive covenant was signed in 1912 the definition of tenement house included apartment house pursuant to the Tenement House Act in existence at the time. Moreover, the court takes judicial notice that the term flat house is a synonym for apartment house.”

The decision is certain to disappoint S&R’s supporters, including Town Supervisor Paul Feiner and those opposing Edgemont’s incorporation, including retired Edgemont lawyer Martin Payson, who wrote a half dozen letters to the Scarsdale Inquirer in 2013 on the developer’s behalf insisting that the deed restriction could not possibly apply to an apartment building.

Meanwhile, in a decision that may give Edgemont residents even more reason to support incorporation, Mr. Feiner, who for years has supported S&R in its attempt to build a 37-unit apartment complex on its 2.26 acre site off Dromore Road, personally redrew the Town’s zoning map last week behind closed doors so that the Dromore property, which the Town Board rezoned for single family housing in September 2012, could once again be part of the Central Avenue zoning district where multifamily housing is permitted.

By choosing to redraw the zoning map himself, without notifying any of the surrounding property owners, Mr. Feiner appears to have violated state laws (Town Law Sections 264 and 265) which set forth certain requirements pertaining to public notice and the opportunity to be heard that must be satisfied prior to the amendment of zoning regulations, restrictions and boundaries.

The Town was certainly aware of these laws. In December 2013, an appellate court upheld a lower court finding Mr. Feiner and other town officials guilty of violating those specific statutes when the zoning map was changed in 2007 without notice and a hearing to correct a draftsman’s error that had placed the Dromore property in the Central Avenue zoning district.

Mr. Feiner said he changed the map based on advice he received from Town Attorney Tim Lewis who said changing the zoning map was “mandated” by other court orders.  There was no court order “mandating” any such change in the map.

The most recent appellate court order was in October 2015. That order held that even though the Town had properly amended the zoning map in September 2012 to reclassify the property as being in a single family zone, S&R was still entitled to rely on the Central Avenue zoning classification for the property that was reflected on the Town’s zoning map when it purchased its property in May 2006.  Because S&R was entitled to rely on the zoning classification that was in effect in 2006, there was no need to change the map from what it was in September 2012. By law, S&R’s right to build, even though the zoning classification had changed, meant it had what is known as a “legal nonconforming use.”

So why all of a sudden change the map?  For one thing, S&R filed a $26 million lawsuit against the Town demanding, among other things, that the map be changed.

But besides that, Mr. Feiner’s changing of the map could mean millions of dollars for S&R.   S&R  originally acquired the Dromore property as a single family home in 2006 for $1.4 million, but knew that if it could get the property approved for luxury multifamily housing, the property would be worth $10 million or more.

S&R’s problem now is that unless it can get a court to declare the deed restriction unenforceable, it cannot build multifamily housing there at all and even if it wins that battle, because it reclassified its development as an “affordable housing” project, it cannot build either unless it obtains federal and state subsidies that S&R, which is not in the affordable housing business, is not likely to ever get.

That’s where Mr. Feiner comes in.  The change in the zoning map would mean millions of dollars for S&R if it can prevail in its lawsuit against the nuns and then sells the property to a third party who could then apply to build luxury apartments on the site.  Changing the zoning map behind closed doors, as Mr. Feiner has done, would allow that to happen.

But only if S&R can defeat the nuns in court.

Even though a state court has ruled that the deed restriction bars multifamily housing on the site, S&R still has the right to try to get the court to declare the covenant unenforceable if they can prove that the nuns – who are enforcing the restriction because they are a contemplative order that values quiet and privacy — do not receive any “actual or substantial benefit” from the prohibition against an apartment building being constructed next to their convent.

The nuns are being represented in the legal action pro bono by ECC president Bob Bernstein and the ECC has a fund to cover any out-of-pocket costs.

In addition to the state court action against the nuns, S&R has also made the nuns part of its $26 million federal lawsuit accusing the nuns, one of whom is African American and Latina, of racial bias for opposing S&R’s 37-unit project.  The nuns have pointed out in legal filings with the federal court that no inference of racial bias is plausible where the municipality allows multifamily housing within its borders, where such housing is not restricted to racial segregated areas, where there are 120 apartments bordering plaintiff’s property, where a third of the Edgemont school district’s housing stock is multifamily housing, and where S&R admits there are already more than a 1,000 apartments near its property.

 

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