Old contracts get new buzz in Knox

The Enterprise – H. Rose Schneider

Land stretches out along Route 156 in Knox. A property covenant at 1451 Berne-Altamont Road, also known as Route 156, was discussed at an April town board meeting.

KNOX — Decades-old land contracts helmed by two Knox board chairmen — one died and the other retired — were brought to the town’s attention last month.

At its April 10 meeting, the Knox Town Board heard from David Doherty, a builder, and Frank Muia, a real-estate salesman, both of whom object to deed restrictions or property covenants created by town boards. They both asked that the restrictions be removed.

Following their accounts, Supervisor Vasilios Lefkaditis said that the town board should find out if the decisions were lawful and proper and if they should be changed. The board discussed the matter in executive session later that night, but no action was taken following executive session.

Lefkaditis last month described the property restrictions as overreaching and shortsighted in an emailed statement to The Enterprise.

“It’s something we've worked on changing over the past two years,” he wrote. The supervisor was elected in 2016 after defeating Michael Hammond, who had served as supervisor for decades.

While both Doherty and Muia referenced board chairmen — the late Earl Barcomb Sr., who chaired the town’s zoning board, and Robert Gwin, who chaired the planning board — as having created the problems, chairmen of those boards cannot, by law, act independently; actions are taken only by a majority vote of the boards.

Constriction or compromise?

Doherty, who lives on Knox Cave Road, said at the April meeting that a building on his property was constructed two-and-a-half feet too close to the road in 2006, violating the 100-foot setback. Doherty said that a deed restriction was put on his own home on the property while applying for a variance, which he believes was unlawfully done. The restrictions, among others, included prohibiting subdivisions and rights-of-way, said Doherty, which he believes devalued his property.

Doherty said that the chairman of the zoning board at the time, the late Earl Barcomb Sr., lived on land bordering the property, and that Doherty owned property behind him.

“I think that’s why he put the restrictions on,” he said. “Because he was worried we’d put up a right of way to get to the 100 acres in the back.”

Councilman Earl Barcomb Jr., the son of the deceased longtime chairman, said at the April meeting that he lived next door with his family at the time. Doherty said he was referencing property in the back.

Doherty said that he had an attorney who worked directly with the zoning board chairman.

From the gallery, Donald Hempstead wondered aloud why the building inspector hadn’t taken note of the violation.

“May he rest in peace, too,” said Lefkaditis, referring to the late Robert Delaney.

Doherty said that Delaney had come to him about the violation and had said that the elder Barcomb had reported it.

“Somebody else brought it to his attention,” said the younger Barcomb.

Doherty is the president of Doherty Construction, Inc., located on 1536 Knox Cave Road. The company builds homes and offers home inspections. The 13.2 acres of property at that location has a full-market value of $222,414.

Kenneth Kirik, a zoning board member who had served alongside Barcomb, said that the deed restriction was the result of a compromise.

“Rather than make them rip up the foundation and everything else, Earl decided to give them a break on that … ,” he said. “[Doherty] saying it’s unfair years later is kind of ridiculous.”

Kirik said that the building inspector had discovered that the foundation of Doherty’s building was too close to the road, violating the town’s zoning ordinance. He said that Barcomb had developed the deed restrictions based on the fact that one building was already close to the road, and that the prevention of further subdivision would keep more buildings from being built close to the road; restricting right-of-way would prevent further access to a road.

While determining if the agreement was fair is a matter of opinion, said Kirik, he surmised that, if both parties had involved agreed to it, it was likely a fair compromise.

“Lost covenant”

Muia brought forth an issue he has contended with for over a decade: a restriction, or covenant, that prevents property on Route 156 in Knox from further subdivision. Neighbors of Muia had filed an Article 78 proceeding, which allows citizens to challenge government decisions, in July 2006 after Muia’s proposal for a minor subdivision had been approved by the planning board — which had been unaware of the covenant.

At April’s town board meeting, Muia said that a neighboring property owner, Betty Walk, “did not get along at all” with Robert Gwin who chaired the planning board in 1992.

Walk was trying to subdivide her 40 acres of land, said Muia, and sought approval from the planning board. He said that Gwin wanted to place a deed restriction, going to attorneys and the Albany County planning board for advice. Walk agreed to a covenant on the property in order to subdivide and sell her land.

“Mr. Gwin wanted to make sure that this covenant was more or less kept secretly,” said Muia. “Because this was what he wanted to do.”

Muia said the covenant was on a county plat map but otherwise unknown by the town. He said Mary Varbero sought a subdivision and was approved until the planning board found the “lost covenant.”

“She was well within her right to subdivide her land … ,” said Muia. He asked the current town board to dissolve the covenant by a resolution. “That covenant needs to go,” he said.

The Enterprise covered Muia’s failed attempt to subdivide Varbero’s property in 2006.

The Knox Planning Board had approved Muia’s request to subdivide the property at 1451 Berne-Altamont Road in June 2006. At the planning board’s July 13 meeting that year, the town board unanimously agreed to revoke the approval of the minor subdivision, according to meeting minutes.

At the July meeting, former town attorney John Dorfman said that the board had not been aware of any covenants prohibiting such a subdivision, which he said were approved on March 16, 1992; and the deeds from owners of property subdivided from Walk’s did not include covenants, he said at the meeting.

The covenant reads, “There shall be no further subdivision of any lot or parcel of land,” according The Enterprise article. At the July 2006 meeting, Robert Price, the planning board chairman at the time, is quoted saying that the covenant was not in the file on the property.

The Enterprise had found the tax map with the covenant written on it in then-building inspector Robert Delaney’s office at Knox Town Hall. The board was only made aware of it after two other homeowners — Joseph and Sharon Zewert, living on a subdivision of Walk’s property — filed an Article 78 lawsuit following the approval of the subdivision.

Walk told The Enterprise in 2006 that she had been trying to sell 40 acres of land to a developer in 1992, but that the planning board required her to put in the covenant before selling the property. She said she had started running into restrictions with the board following her husband’s death in 1986, when she was trying to subdivide and sell land due to debt that had accrued on her farm and business.

Muia told The Enterprise in 2006 that he wanted to subdivide the property into thirds in order to build houses for his parents and in-laws. At the time, he worked as a Realtor for Coldwell Banker, but no longer works there, according to an employee there, who said he also no longer listed with the Realtor’s association.

Muia could not be reached for comment.

Walk objected to the subdivision and had told The Enterprise at the time that the lack of space and other factors such as septic systems and a gas pipeline would not allow for further subdivision. She did not return recent calls for comment.

Readers of The Enterprise responded to Muia’s comments week after the July 27, 2006 article ran, objecting in particular to his characterization of Joseph Zewert as a “trailer guy who likes to shoot his gun and drink beer.”

Knox’s tax rolls currently lists the 9.81-acre property at 1451 Berne-Altamont Road as belonging to Varbero, with a full market value of $295,690. The county voter rolls list Muia as living at that address.

In 2009, at a May 14 meeting, Muia is recorded in meeting minutes as withdrawing a request to reconsider a proposed subdivision of his property, saying that he was no longer going forward with plans to subdivide at the time “due to family considerations.”

Corrected on May 16, 2018: The original story had described Frank Muia as a former realtor; actually, he is currently a real-estate salesman.

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