‘Restrictive’ Knox land covenants taken to trial in twin suits

KNOX — On July 3, 2018, two lawsuits were filed against the town of Knox, each regarding a covenant on the plaintiffs’ properties. They were filed with the Albany County Clerk’s office on Oct. 18, 2019.

David and Rhonda Doherty, of 1536 Knox Cave Road, and Mary Varbero, of 1451 Berne-Altamont Road, want for the town to dissolve two covenants that apply to their properties which restrict their ability to subdivide, and which both Varbero and the Dohertys deem unlawful. 

When asked whether the lawsuits, which were filed on the same day at the same law firm, were planned together, David Doherty, who was at work and could only speak for a short time, seemed unaware of the Varbero lawsuit and simply responded that the coincidence was “interesting.”

Varbero could not be reached for comment. Timothy Elliott, the attorney for both cases, declined to answer questions about the suits.

The town’s supervisor, VasiliosLefkaditis, also declined to comment because litigation is ongoing, he said.

The Doherty case

According to their suit, the Dohertys purchased a parcel of land of approximately 16 acres on Feb. 27, 1995. In 2005, after construction started on a second dwelling on the southeastern portion of the lot, a violation was discovered — the dwelling was built 3.7 feet too close to the road, breaching a 75-foot setback requirement put in place by the town’s planning board. 

When the Dohertys approached the planning board on Jan. 26th, 2006, to request a variance, then-Chairman Earl Barcomb Sr. expressed concern that an “after-the-fact” variance would set a bad precedent, according to the meeting minutes. 

The Dohertys allowed that, if a variance were granted, they would not build any more dwellings, subdivide the parcel, or request an easement to access public roads.  They also said they would construct a driveway with dimensions that allow for vehicles to turn around so there would be no need to back out onto Knox Cave Road, which contains a 55 mile-per-hour curve where the driveway meets the road.

The minutes declare that the board resolved to accept the conditions and work with the family’s attorney, Anthony Russo, to “ensure that these conditions run with the property.”

The Dohertys’ suit claims that the “restrictive [covenant] ... is of no actual or substantial value, and therefore invalid ... [and] … is preventing [the Dohertys] from exercising their constitutional rights to decide what happens to their real property including the right to subdivide and sell the land.”

The lawsuit also claims that the Dohertys were effectively forced into the covenant because they could not afford to halt construction on the home they were building — which, according to the 2006 planning board meeting minutes, was intended for the surrogate grandparents of their daughter — to go through an extensive legal process. 

David Doherty came to the town board in April of 2018 to request that the board reverse the planning board’s decision to impose restrictions on the property. At the meeting, Doherty speculated that the late Barcomb Sr., who lived on a property that bordered Doherty’s, was concerned that Doherty would seek an easement through Barcomb’s land and sought to prevent this through the covenant. 

The Enterprise reported at the time that Kenneth Kirik, who was on the planning board for the 2006 meeting, and was in attendance for the town board meeting, explained that, “Rather than make [the Dohertys] rip up the foundation and everything else, [Barcomb Sr.] decided to give them a break on that. [Doherty] saying it’s unfair years later is kind of ridiculous.” 

Kirik went on to say that Barcomb Sr.’s thinking was that a subdivision restriction would prevent more buildings from being constructed too close to the road.

The town board eventually convened in executive session on the basis of discussing a matter of legal significance to talk about the issue. In an email to The Enterprise after the meeting, but before the lawsuits were filed, Supervisor Lefkaditis wrote, “No action was taken and it is my opinion that unfortunately the Town for too many years was myopic in its approach and has had a long history of overreaching. It’s something we’ve worked on changing in the past two years.”

The Varbero case

The case of Mary Varbero extends back decades, beginning with a former 200-acre property owned by Elizabeth Walk, who is running unopposed for Knox tax collector. Walk and her husband operated a farm on the property; after her husband died, Walk subdivided her land and sold off the parcels. 

Forty acres of that land was going to be subdivided into four parcels and sold to a developer but, before the planning board approved the action, it established a covenant that forbade any more subdivisions within those 40 acres.

As The Enterprise reported in 2006, one family, the Zewerts, bought a home on one of those parcels with the covenant in mind, hoping that the restricted land usage would allow them to live “close to the land” in the sparsely developed lot. Frank Muia and Mary Varbero, however, bought their home on one of the parcels intending to subdivide, and claimed they weren’t aware of the covenant when they signed the deed. 

In 2006, decades after the covenant was made, Muia applied for two subdivisions with the intention of building a house on each for family members. The application was approved by the town planning board at the time, which was not aware of the covenant because it was written on a tax map not included in the file for the property.

Shortly after the planning board issued its approval, the Zewerts filed an Article 78 proceeding, which allows citizens to challenge decisions made by government. With this, the planning board rescinded its approval of Muia’s proposed subdivision.

A provision of the covenant stated that Muia had the ability to reverse the restrictions if he got majority approval from the three other property owners, who, at the time, were Joseph Zewert, Elizabeth Walk, and Kevin Malone. Zewert and Walk objected to the subdivision, with Walk expressing concern that the land could not accommodate the two additional homes that Muia was planning to build. Kevin Malone could not be reached by The Enterprise in 2006 and is no longer listed on Knox’s tax rolls.  

Adamant to move forward in 2006, Muia told The Enterprise then that Zewert “is a trailer guy who likes to shoot his gun and drink beer,” which prompted outrage from readers. Three letters were submitted to the Enterprise editor the next week, each defending Zewert against Muia’s characterization. 

By 2009, Muia’s circumstances changed and he withdrew an ongoing request to subdivide his land, citing “family considerations.” But in April 2018, he went with David and Rhonda Doherty before the town board to once again ask that the covenant be lifted, without success. 

Varbero, who shares the property with Muia, claims in her suit the same issues with the covenant as described in the Doherty suit.

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