NEW SCOTLAND — With a state Supreme Court decision pending on the limitation of easement on a private road, Fielding Way, the zoning board is carefully considering a variance for property at the end of that road.

Tuesday night Walter Vivenzio appealed to the zoning board requesting the town allow him to subdivide a land-locked piece of property, 1,800 feet away from a public road, that is accessed across land owned by others.

Vivenzio said it’s beyond his comprehension how he can own about 160 acres, may not be able to build a single new house on it, and there is a question if he can even drive down his own driveway.

Under New Scotland’s zoning law newly created lots are required to have at least 50 feet of frontage on a public road.

Vivenzio lives at the end of Fielding Way off of Krum Kill Road and owns 160 acres back there, he said. When he built his home, he received a variance, because of the lack of public road frontage, and now he wants to break off a five-acre chunk of his property to sell to someone who wants to build a new home this spring, he said.

Meanwhile, his neighbors, the Ferentinos and Dimuras, are in the middle of a legal dispute over the limitations of the right-of way on Fielding Way. This came to a head when the Ferentinos received a special-use permit from the town’s planning board in September to build and renovate structures on their property to run a commercial dog-training and boarding business. (See related story.)

The Dimuras have filed a civil suit against the Ferentinos requesting that the court declare that they own the driveway free and clear and, if the Ferentinos have any right to Fielding Way, it be limited to accessing their property.

Currently, three families live on Fielding Way.

Vivenzio has a deeded 50-foot right-of-way, and also has a right-of-passage. He owns two separate parcels — one is 57 acres and the other is 88 acres. He wants to break off five acres from the 57-acre parcel and have the new owner use the same right-of-way that he has been using for years. Vivenzio would also deed to the buyer a 50-foot right-of-way on his property so the new landowner would transverse over Vivenzio's property to connect to Fielding Way, then travel over the Ferentino right-of-way, and ultimately the Dimuras’ property to get to Krumkill Road, Vivenzio said.

Legal Issues

Zoning administrator Paul Cantlin said that, since Vivenzios property is entitled to a 50-foot right-of-way, Vivenzio can deed it to others.

Zoning board Chairman Ronnie Von Ronne, asked the zoning and planning board attorney, Louis Neri, if the pending lawsuit could wipe out Vivenzio’s existing easement.
"These easements do exist ," Neri said. They date back to old farm roads, and are frequent in this area, he said. The court can’t take away those easements, the right of ingress and egress, but what is to be determined by the judge is "to what extent they can be used," Neri said.

For example, the judge may decide to limit the use of the right-of-way so third parties can’t use it, Neri said. One of the issues before the court is whether using the right-of-way for a commercial enterprise is over reaching the intentions of the easement, Neri said.

Vivenzio said, when he bought the adjacent 57 acres, there was already a house on that property, so he asked if a judge could deny allowing one house access to the easement, when there was already one house on the lot before.
Vivenzio isn’t just reopening one house on the 57 acres, but is asking to take a chunk out of the 57 acres and add another family or person to the use of the easement, Neri said. While, right now, the application is for one lot and house, "If you’re going to expand"was the easement intended for a metropolis back there"" Neri questioned.

Vivenzio told The Enterprise that currently he has no intention to subdivide the whole back acreage. He just wants to sell off one small piece of the property to keep his head above water, he said. Eventually he would like to do something with his 160 acres to make a little money, he said, and then get out of town.

Neighbors

If the court case between the Dimuras and Ferentinos doesn’t get solved soon, like over the next year, Vivenzio said, he does own property that borders Salem Hills, so he could try to connect to a public road there. But it would be logistically difficult since for example, there is a ravine, he said.

He said, he doesn't think Daniel Dimura, who lives at the front of Fielding Way, the closest to Krum Kill, would mind his adding just one more house, but he does know he’d hear from the Dimuras if he wanted to put in a bunch of houses.

Daniel Dimura, told The Enterprise yesterday that Vivenzio is a friend of his, so he doesn’t want to comment about Vivenzio’s application. He also said that he wasn’t able to comment about the Ferentinos’ kennel since it is still in litigation. And, just because the suit against the planning board was dismissed by Supreme Court Judge William McCarthy, doesn’t mean that it can’t be appealed , he said.

Vivenzio told The Enterprise and the zoning board he was trying to lay low for awhile, because he doesn't want to get caught in the middle of the law suit between the Dimuras and Ferentinos.

The way Vivenzio’s deed is written, it looks like egress and ingress was from an old farm dirt road, Neri said. The biggest problem is where the easements are drawn, he said. The deed references four or five different easements, but does not clearly lay out exactly where they are located, Neri said. Technically , the 50-foot easement may not actually be over the existing roadway known as Fielding Way.

He doesn’t think it is fair for the Dimuras to try to limit his or the Ferentinos’ access to their property, Vivenzio said. The road had been there way before the Dimuras moved into the neighborhood, Vivenzio said.

Vivenzio and the Ferentinos would like Fielding Way to be paved and widened, while the Dimuras are against it. Vivenzio envisions a future cul-de-sac, he told the board.

Vivenzio said he is unhappy with the current road conditions where he does not have a safe right-of-way. The path is too narrow for emergency vehicles to pass over and for two-way traffic.

Big picture

"One of my concerns is the continued subdivision of land," zoning board member William Hennessey said at Tuesday’s meeting. Since Fielding Way doesn’t meet town specifications, should the zoning board continue to grant variances to allow more homes on a road that is not considered safe under town law, Hennessey questioned.

Other applicants who want o build on vacant land have to build town roads, Hennessey said. Developers of large subdivisions build town roads all the time, he said. He is concerned about continual subdivision of these properties that use another’s private dirt road.

Once the zoning board legally allows one subdivision, granting a variance to bypass the town law, it makes it harder to tell another applicant no, Hennessey said. Then, five years down the line, the town will have not just one lot with one house, but five and then more over time, Hennessey said. He thinks the board should look at the overall use of land and how it affects roadways.

Neri told the board it could grant the variance and then condition it on the roadway meeting town specifications if it wanted.

Chairman Von Ronne asked how the board could condition approval with modifications that would have to happen on somebody else’s land.
This, Neri said, is one of the Fielding Way issues before the Supreme Court now: How far can someone go with improving his own easement with construction and maintenance"

This is one of the more complicated zoning cases that’s come before him, zoning board member Adam Greenberg said.

Other business

In other business, the zoning board:

— Is considering allowing James Olsen to put in a new sign in front of Olsens’ Nursery on Route 85. The new sign is double the size of the existing one.
PowerRama and the nursery have been combined into one major store and Olsen is also adding the sale of hardware . He has contracted out with Ace hardware, which requires "Ace" to be shown on the road sign.

The new sign is proposed to have three main panels. The highest panel, in green will read just Olsens’. The middle panel is a reader board, and the bottom panel advertises Ace. Olsen told The Enterprise he isn’t doing away with goods and services, simply adding to it; and

— Listened to a request of Andrew Woods and Michael Brennan presented to the board by their attorney. They want to build a single-family dwelling on a lot they own that does not have public road access.

They need a variance since the lot is 400 feet off of Swift Road and the only access to the site is through deeded easements over land owned by another. By town law, a pre-existing lot has to have a minimum of 15 feet of public-road frontage.