Lost covenant leads to dissent

KNOX — The bucolic landscape stretching along the Berne-Altamont Road is at the center of a development debate again.
"This story started exactly 20 years ago this year," Elizabeth Walk told The Enterprise as she fixed dinner in the kitchen of her old farmhouse. The land known as the Walk property, once a 200-acre farm that flanked Route 156, has been parceled off over the last 20 years.

Frank Muia, of 1451 Berne-Altamont Road, lives on a 9.81-acre plot of land that had been part of that farm. He applied for a minor subdivision in the spring and got approval from the Knox Planning Board on June 8 to divide the land into three plots of roughly three acres each.

But on July 13, the planning board rescinded its approval in a unanimous vote, citing new facts.
"It’s not new evidence," Muia told The Enterprise this week. "It’s 15-year-old evidence."
The land that Muia lives on is under restrictive covenants that read, in part, "There shall be no further subdivision of any lot or parcel of land." This covenant was placed on the map of the subdivision filed in 1992 by Elizabeth Walk and kept in the Knox Town Hall; planning board members said that they didn’t have it before giving approval.
"Is that something we should have had beforehand"" asked planning board member Brett Pulliam at the July 13 meeting.
"Yes," answered planning board Chairman Robert Price.
"Why didn’t we have it"" asked Pullian.
"It wasn’t in the file," replied Price.

The Enterprise found the map with the covenant written on it in a file housed in the building inspector’s office in the Knox Town Hall.

Price and Daniel Driscoll, both long-time planning board members, said that overlooking covenants isn’t a common problem. "It certainly hasn’t happened while I’ve been on the board," said Price.

The board became aware of its oversight when Joseph and Sharon Zewert, who live on a neighboring plot to Muia’s, brought up the covenant. The couple filed an Article 78, a suit that allows citizens to challenge government actions, on July 5.
The Zewerts said that the reason they bought the property was because of the covenant. "I moved out here so I could be one with the land," said Mr. Zewert, who left Clifton Park for the Helderbergs two years ago.
Muia said that he didn’t know about the covenant. "I bought this property to subdivide," he said.

Muia, a Realtor for Coldwell Banker Prime Properties, said that he had planned to subdivide his property so that there would be three plots of about three acres each; he would build two houses, one each for his parents and in-laws.
"I have an approved subdivision," said Muia this week. "I’m going to go ahead with it."

Although the planning board initially approved the plan, Walk told The Enterprise that there isn’t enough room on the site to accommodate it. Between protecting already-existing wells from contamination from the two new septic tanks, keeping out of the 100-foot buffer zone along a creek that feeds into the Watervliet Reservoir, and steering clear of a portion of the Tennessee Gas pipeline that runs through the property, she said that she doesn’t think there’s sufficient space for two more houses.
"Nobody wants to drill into the gas pipeline," she said. "We’d all be gone."

Covenant then
The covenant that restricts land use on the property was required by the planning board in 1992, said Walk. Before the board would allow her to sell the 40-acre tract of land to the developer, Michael Munro, the board required that she include a covenant, said Walk; "They made me put it in."

Price told The Enterprise that it is common practice for the planning board to require the inclusion of a covenant in a deed before approving a subdivision. "We do that all the time," he said. "Under my watch, we make sure it goes in the deeds."
In the Walk subdivision, the covenant was written on the map rather than entered into the actual deed; it still has the same effect, though, said Driscoll, who was on the board in 1992. "I would not be surprised if it was something we required," he said.
When recounting her history with the planning board, Walk said that Price and Driscoll "have been the dictators of this area." The two planning board members have served on the board, on and off, for over two decades; and Walk ran into restrictions when she began breaking off parts of her property when her husband, George Walk, died in 1986, she said.
"I had the business, I had the farm, and I had the debt," said Walk.

Covenant now
Muia plans to pursue the subdivision, which the planning board rescinded without prejudice so that he can reapply. He said that the covenant is not legal because it was included at the town’s request rather than the property-owner’s. Muia expects to re-apply for the subdivision within 60 days. "My attorneys from New York City don’t think I have a problem in the world," he said.

Professor Patricia Salkin, on staff at the Government Law Center at Albany Law School, said that it is legal for a town to require the addition of a covenant in a deed before granting approval of a subdivision.

Zewert doesn’t plan to back down, he said; he chose to buy the property because of the restriction on development and, like Walk, he said that he is concerned about the possible contamination of nearby water.
"He’s a trailer guy who likes to shoot his gun and drink beer," said Muia of Zewert. "We invested to the tune of $400,000," he said, indicating that the Zewerts didn’t pay as much for their neighboring property.

The Zewerts’ deed, dated July 7, 2004, states that they paid $108,000 for their 8.77-acre piece of property. The deed for the property that Muia is proposing to subdivide, dated Sept. 14, 2005, states that Mary Varbero paid $375,000.
The last item listed on the covenant that governs the properties is: "These restrictions may be amended upon the written consent of a majority of the lot owners and the town of Knox."

The Zewerts, who filed the suit after Muia’s subdivision was approved, and Walk, who said that she does not want Muia to proceed with the subdivision, make up half of the lot owners. Varbero, who owns the parcel that the subdivision was proposed for, and the Malones, who could not be reached for comment, make up the other half.
"I went and sat in people’s living rooms and talked to them," Muia told The Enterprise, regarding his subdivision plan. When he went to Walk’s living room, he told her partner that he would hire him to do the excavation work for the two houses; Walk recalled that Muia "said to Jimmy, ‘I don’t know why you’re so upset about this,’" and then offered him the job.
"He’s used to paying people off," said Zewert of Muia. "It’s just the way you act in real estate."
Of the board’s oversight of the covenant, Robert Gwin, a long-time board member who was chairman in 1992, said, "Apparently Murphy’s Law took precedent." He said that, even though things went wrong, it worked out in the end.
"I’m glad that the neighbor brought it to our attention," said Driscoll, who apologized for the mistake.
"The people who are sitting on the board that gave me the subdivision," said Muia, "are the ones who were sitting on the board when they made Betty Walk put the covenant on."

More Hilltowns News

  • Berne-Knox-Westerlo’s high- and moderate-risk sports — like volleyball, soccer, and football — have been postponed until March and will be played through April.

  • Todd Gallup, of Berne, pours slop for his pigs.

    Stephen Hadcock, Beginning Farmer Educator for Cornell Cooperative Extension, told The Enterprise that, over the last decade or longer, he’s seen an increase in the number of people who have taken steps to start their own farm. The Enterprise spoke with Hadcock and new Berne farmer Todd Gallup for insight into the process of starting a farm from scratch. 

  • Vandalism was discovered in Westerlo’s town park this week, with graffiti artwork and crude phrases scrawled around the pavilion. 

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