New Scotland Archives — The Altamont Enterprise, March 2, 2006
Easements confound zoning board
By Holly Grosch
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.
Suit against town dismissed
By Holly Grosch
NEW SCOTLAND — A civil lawsuit against the town’s planning board has been dismissed by Supreme Court Justice William E. McCarthy.
The planning board’s decision in September to grant a special-use permit to allow Mary Ferentino to operate a dog-training and boarding facility on her Fielding Way property off of Krumkill Road still stands.
The Dimura family and a few other neighbors challenged the board’s decision in court, claiming that the board acted capriciously and arbitrarily, and abused its discretion. They petitioned for the courts to annul the planning board’s decision.
The Dimuras main contentions centered around the private road of Fielding Way, which they say they own. In order to access the Ferentinos lot, cars have to drive over the Dimuras’ property.
Attorney John Hayko, representing the Dimuras, argued in court papers that it was irresponsible of the planning board not to address the validity of the easement. Also among the complaints is that the Ferentino property does not have the required road frontage for a commercial venture, that the property had existing violations making it ineligible for a special use, and that it was irresponsible of the planning board to condition the special use on the roadway being modified to accommodate two-way traffic and to meet all the other town road standards when the widening of road would have to be agreed on by Dimuras who are against it.
Hayko’s petition also references all the area residents who attended the public hearing held by the planning board to speak against approving the dog kennel because of concerns about increased traffic and the noise from the dogs.
The planning board’s attorney, Louis Neri, advised the board in September at the time of the application that the neighbor’s dispute over of the extent and limitation of the right-of-way was out of the planning board’s jurisdiction, and that the board could move forward on making a declaration simply on the special use.
When the town was sued, listing all the planning board members as respondents, the town board hired attorney Peter Barber to handle the case. Barber responded to the suit by asking the court to dismiss the petition without stating any specific grounds for such relief.
New Scotland’s planning and zoning board historicially has rarely been sued, the last case was in 2003 by Tower Ventures, a cell phone tower company.
Judge’s decision
Judge McCarthy ruled in the town’s favor, saying that the nature and character of the easement is a matter of a private agreement, and the planning board’s granting of a special use is a legislative enactment, so that they are separate and distinct matters.
"The issuance of a permit for a use allowed by a zoning"may not be denied because the proposed use would be in violation of a restrictive covenant," meaning a private agreement, McCarthy’s decision reads. He said the exception to the general rule applies to building permits and subdivision approvals but not special-use applications. McCarthy repeated this a number of times in his decision, clearly indicating that the Dimuras would have had a much stronger case if the Ferentinos had been requesting a subdivision approval.
"It was neither arbitrary nor capricious for the planning board to defer to the Supreme Court the issue of the extent, if any, of the applicant’s right to improve the road or driveway," McCarthy writes.
"The planning board would have acted unreasonably if it had required the applicant to upgrade the driveway and obtain a variance [from the zoning board for frontage] "before they even knew if the planning board would issue a special use permit to operate a kennel," McCarthy continues.
The Dimuras believe that the Ferentinos have a prescriptive right to use Fielding Way for residential ingress and egress only, and that the Ferintinos’ property has never been granted any official easement. The right-of-way exists "by necessity," Hayko argues, but a deeded right of way was never granted by a predecessor.
Separate suit
A separate civil suit filled In November by Halina C. Dimura, Daniel and Susan Dimura, and Joseph Dimura Jr. against Mary and Gregory Ferentino seeks a declaration from the court that they own the driveway free and clear, and that the Ferentinos be restrained from entering any part of Fielding Way, or if the Ferentinos have any right to use Fielding Way, that their right be limited to accessing their land.
The Dimuras are also suing the Ferintinos for already paving the road without their permission. They want the courts to declare that the road be restored back to the way it was at the Ferentinos’ expense, and to declare that the Ferentinos do not have the right to widen the road to meet the town’s road standards for a business. This case is still pending.
In the case against the planning board, Judge McCarthy wrote that the planning board does have the right to condition the special-use permit on improving the road. However, he said, "The special use permit does not require the petitioners [Dimuras] to allow the Ferintinos"to improve the driveway" nor does it authorize the Ferintinos to improve the road over the Dimura’s objections, McCarthy writes.
Other objections
Hakyo also argued that it was irresponsible for the planning board to issue a permit, when there were outstanding violations. Hayko said that the Ferentinos have been operating a dog-training business for a number of years on the Fielding Way property without a permit from the town. The judge wrote that, while he believes that they have offered dog-training classes in the past, the Dimuras did not prove that the violation was continuous from when the permit was issued.
McCarthy said that the only issue raised by the petitioners of serious concern to him is noise. But, he wrote he believes that the proposed kennel is on a large enough parcel surrounded by woods with the closest residence being 500 feet away, and the planning board placed conditions on the special use to reduce the noise. Dogs are to be housed inside and will only be let outside in small numbers, in screened in dog runs, the planning board stipulated.
The noise would not appear to exceed that which might be made by other uses permitted in this neighborhood such as agriculture or a home with a large number of dogs, McCarthy declared.
In response to the petitioners allegation that the character of the neighborhood would be adversely affected by a kennel, McCarthy said a kennel is already a permitted use in this zone, a legislative determination by the town board that this use is consistent with town general zoning plan so its legislatively determined that this use will not adversely affect the neighborhood.
The Dimuras failed to establish that the board’s decision was capricious or contrary to law so, McCarthy writes the court is ordering the petition be dismissed in its entirety.
Response
Hayko responded through his secretary to The Enterprise last week that he has no comments about the dismissed case until he speaks to his clients about their next action.
Susan Dimura of Fielding Way told The Enterprise that she doesn’t want to comment right now about the suit against the town because they have just received and are dealing with their new property assessment; she doesn’t want to create any enemies, she said.
Town Councilmember Richard Reilly, who has served as the liaison to the planning board, told The Enterprise that the town board throughout the civil dispute has most certainly stood by the planning board’s determination. Reilly said the town board believed that the planning board had done everything it needed to when addressing the special-use application.
Planning board Chairman Robert Stapf said that he did not see the suit against his board affect its members morale at all. Everyone felt "what we did was reasonable and followed the letter of the law," Stapf said.
The board thought it took precautions to mitigate noise with the structures, buffer zones, and vegetation, Stapf said. And the board placed a number of specific conditions on the approval that still need to be met prior to a building permit being issued, Stapf said.
Meeting the condition of improving the roadway, is now contingent on a decision from the State’s Supreme Court on the rights of the right-of-way, something outside of the planning board’s jurisdiction, Stapf said.
Stapf said he doesn't see the dismissal as a big win because litigation is an expensive cost for the town. He added though, that anyone who disagrees with a planning-board determination does have the right to challenge it.
"We did the best we could," Stapf said.