Monday, August 6, 2007

Shown above: A portion of the Albert E. Wilson house (left), which was recently listed on the National Register of Historic Places, and (right) half of the half-built house next door, a project of Benmar Properties, LLP.


Construction of the Brook Street behemoth, a one-family dwelling fit for a clan that has been partially built at #609, has once again been interrupted by a stop-work order--its second resulting from a court ruling. On July 20, neighbors opposed to its erection by Benmar Properties, LLC filed an Article 78 challenging the project in New York State Supreme Court, and, at the same time, won a temporary restraining order against further work at the site until a hearing on Aug. 15.

At issue is whether the project is compliant with both the Village of Mamaroneck zoning code and with New York State's Environmental Quality Review (SEQR) regulations. It will be up to Judge Susan Cacace to rule on Aug. 15 on whether the temporary stay in construction should be extended until a decision is handed down on the Article 78.

A prior stop-work order was issued in January after Supreme Court Judge Jonathan Lippman ruled in favor of an Article 78 filed in June, 2006 by the same neighbors. That petition challenged the May, 2006 approval by the Village of Mamaroneck Zoning Board of Appeals (ZBA) of an area variance that precipitated the subseqent course of events. That variance allowed the subdivision of a property with an existing house at 601 Brook Street and the validation of the secondary lot thus created at 609 Brook Street as a buildable site. The project required a variance because its depth fell slightly short of zoning regulations.

In their 2006 petition, the neighbors argued, and Judge Lippman agreed in his decision, that the 2006 zoning board should have adhered to the precedent set by members of the village's 1991 zoning board, who denied an almost identical variance to the then owners of 601 Brook on the grounds that it would have negatively impacted the historic character of the neighborhood that had grown out of the 19th Century Tompkins Farm. Lippman's ruling annulled the 2006 area variance.

But it is 20th century history that injected the issue of SEQRA into the current controversy because, on April 18, the house at 617 Brook Street, right next door to 609 Brook, was listed on the National Register of Historic Places. The petitioners note in their Article 78 that the house at 617 brook is "the first residential structure in the Village of Mamaroneck to be listed on the National Register" and was designed by Albert E. Wilson, "a founding member of Wilson, Peabody and Brown, one of the premier architectural firms of the early 20th Century." The house was Wilson's retirement home, and his daughter, Ann, still lives there.

At the July 9 Village Board meeting, Lucas and Deputy Village Attorney Joseph Messina differed over whether the creation of a new lot at 609 Brook was, in SEQRA-related zoning parlance, a Type II Action or a Type I (unlisted) action. Messina, who had been special counsel to the zoning board when it approved the 2006 variance for 609 Brook and had unsuccessfully defended the ZBA against the 2006 Article 78, contended at the meeting that allowing Benmar to proceed with construction would be a Type II action that would not trigger SEQRA because what is being built is a single one-family house.

Lucas, however, argued that, if a lot that is to be subdivided adjoins a building listed [on] or found eligible to be listed on the National Register of Historic Places, constructing anything on that lot, even just a single-family house, could negatively impact the neighboring historic site and is, therefore, a Type I Action that requires a SEQR analysis.

Judge Lippman, in a footnote to his Jan. 10 Ruling, stated:

"The ZBA ruled that the action was a Type II action (thereby outside SEQRA'S purview) BASED ON ITS INTERPRETATION OF THE APPLICATION AS AN AREA VARIANCE AND LOT LINE CHANGE to construct one single family residence, . ..However, IF THE APPICATION IS INTERPRETED AS A SUBDIVISION [emphases mine], it would be subject to SEQRA review" since there "is no doubt that SEQRA views development occurring on properties adjoining structures of historical significance to be environmentally significant under the regulations."

Five months after the Lippman decision, according to a deed dated June 11, Benmar purchased, for $75,000, a 4.5-foot-x-50-foot strip of side yard from the owners of 307 Beach Ave. to add to the rear yard of 609 Brook. (The side yard of 307 Beach, then owned by Corey and Erica Bleil, abuts the rear yard of 609 Brook.) Prior to the sale, Building Inspector Richard Carroll had written a letter on March 20 to Benedict Salanitro, a principal in Benmar, affirming that the additional land would make 609 Brook zoning compliant for the construction of a single family home, and another letter, dated May 30, to the Blials, assuring them that 307 Beach would remain zoning compliant after the land was transferred.

Messina commented on these actions at the July 9 Village Board meeting, saying, "as I understand it, there was a purchase of land from a neighbor that was reviewed by Mr. Carroll. He made a DECISION [emphasis mine] that made both lots zoning compliant, and I believe he has issued a building permit. There are remedies. The remedy of course, is, at least, the Board of Appeals, with regard to the issuance of that building permit. With regard to the issue of SEQRA, they are also your remedy with regard to any appeal of that decision."

Lucas then asked if that meant that the zoning board should be the lead agency in a SEQRA review, and Messina replied that "the zoning board has to make a determination as to whether or not your interpretation is correct.. . .I'm sure your counsel can tell you what your potential remedies are. Certainly one of them is the Board of Appeals."

"But," Lucas responded, under the SEQRA regulations, the remedy is an Article 78.. . .If a municipality fails to comply with SEQRA. . .then the citizen's remedy is an Article 78."

"You're absolutely correct," Messina replied. But, Messina went on, "We believe that the municipality has complied with SEQRA."

"So, is it safe to say," Lucas asked, "that the Village of Mamaroneck Board of Trustees feels that SEQR does not apply to the Benmar property?"

"I think," Messina answered, "that it is safe to say that it is the opinion of their counsel that SEQR does not apply. I have not polled each individual member of the board, nor do I expect them to be expert in that area. But I think, after review by both the village attorney and myself, we believe that the SEQR regulations do not apply."

(It is also safe to say that citizens of any municipality have a right to expect "each individual member" of its board of trustees to fully educate herself or himself on every matter that comes to a vote and that one of the major issues in the 2006 election in this municipality was the role played by attorneys in village business.)

The neighbors did file an appeal with the zoning board challenging the determinations set forth by Carroll in his letters to Benmar and the Blials and began arguing their appeal at the board's July 24 meeting. At that meeting, petitioner Stuart Tiekert noted that, in his letter to the Blials, Carroll had cited, as a basis for his determination of the continuing code compliance of their lot, an analysis he labeled Sheet S-l. However, Tiekert went on to say, in a phone conversation he had with Carroll about the letter after it was written, he was told by the building commissioner that Sheet S-1 existed "only in his head."

(Carroll, who, scuttlebutt has it, is on his way out, was recently cited by the village Ethics Board for telling the zoning board that he had completed a survey of a project for which he had issued a building permit at 818 The Crescent, though it later turned out that he had done no such study.)

Nonetheless, based on his determinations expressed in his letters, Carroll, on July 6, issued a permit for construction at 609 Brook to recommence. The neighbors then filed another appeal with the ZBA contesting the issuance of the permit, but it was registered too late to be included in the ZBA's July proceedings. However, conversation among the board members, their counsel and the petitioners indicated that the appeals of both the determinations conveyed by Carroll in his letters and his issuance of a building permit will be consolidated and treated as one when the hearing continues in September.

But, at the July ZBA meeting, the neighbors were limited to contesting the correctness of Carroll's assurances in his letters to Benmar and the Blials. In that context, they asserted that pre-existing nonconformities of the Blial's property, which had been permitted when the zoning code was revised in 1968, are no longer allowable because, by subdividing their lot, they created a new one not covered by grandfathering provisions. The neighbors also argued that a barn-like structure behind the Blials' residence is no longer legally situated

In a June 21 letter to Carroll, Lucas wrote:

"Under the present status quo, since the subdivision of 601 Brook Street has been judicially annulled, there is only one lot at 601 Brook Street. As a result of Justice Lippman’s decisions annulling the subdivsion, the parcels known as 601 and 609 Brook Street are illegal lots. The only legal buildable lot is the parent lot, formerly known as 601 Brook Street. The code allows only one single family home on the parent lot, known as 601 Brook Street. Thus, issuance of a building permit permitting construction of a second house on the lot would be a violation of the zoning code, and would constitute a knowing disregard by the village of Justice Lippman’s decisions." She also wrote that, because "Benmar has sold one of the two parcels, both structures and lots are illegal, although a final determination awaits the resolution of appeal."

(Benmar and the ZBA are appealing Judge Lippman's decision.)

In an affidavit that accompanied the petitioners' July 20 request to the court for the temporary restraining order, Lucas specified that, in her opinion, what she called Benmar's "unauthorized subdivisions. . .have rendered 307 Beach Avenue non-conforming with respect to its minimum side yard, driveway and front steps" and "601 Brook Street nonconforming with respect to its front yard, lot depth and rear yard."

At the July meeting the petitioners also raised the nature of the deed itself, which was qualified by a hand-written provision that the land was being transferred "Together with an easement in favor of the grantor [the Blials] for the exclusive use, enjoyment and maintenance of the subject parcel." In other words, although the land was sold to Benmar, it would be used and maintained by the Blails.

Petitioner Robert Balin, who is an attorney, called that "a threshhold legal issue looming over this entire issue" because "zoning is all about use."

ZBA counsel Steven Silverberg conceded that such a deed "is rather unusual" but added that it is "not unprecedented." Both attorneys noted a lack of case law to guide them. Balin, however, stressed that, unless further searches uncover some, there are "no cases approving" them. Silverberg questioned whether the strip of land under discussion was usable at all, but Balin cautioned that there is an analogous area of law in which it has been found that if, according to the deed of sale, the seller retains the use of the property, the seller also retains the responsibility to pay the significant balance of the taxes on that property.

The Blail's real estate attorney, John Manning, with the astonished look of a man who had just been ambushed, identified himself as the person who had penned in the "enjoyment and maintenance provision" and expressed bafflement that the notation on the deed might lead to an unintended consequence.

Benmar's attorney, Lawrence Mulligan, was not present, but a letter from him, dated that same day was read at the meeting.

In it, he wrote that Carroll's letters to Benmar and the Blail's contained merely "opinions," a characterization previously offered to this reporter by Benmar's former attorney, Paul Noto, who withdrew from the Brook Street case due to the press of other business.

Mulligan's letter did not deal with the fact that Carroll clearly knew, in writing the letters, that the recipients would be relying on his answers in making a decision about whether to go ahead with a land transaction.

Mulligan's letter also argued that the zoning board's jurisdiction in the matter could vest only after Carroll acted on the determinations expressed in his letters to Benmar and the Blials. However, the "powers and duties" section of the zoning code quoted by Mulligan does not mention action but does state, "The Board shall hear and decide appeals from and review any order, requirement, DECISION, INTERPRETATION OR DETERMINATION by any administrative official or board charged with the implementation or enforcement of this chapter and MAY REVERSE OR AFFIRM, WHOLLY OR PARTLY, or MAY MODIFY the order, requirement DECISION, INTERPRETATION OR DETERMINATION [emphases mine] appealed from and make such determination and order as, in its opinion, ought to be made in the premises."

As recenly as June 20, 2006, Mulligan was of counsel to Messina's law practice.

Asked, in a recent phone conversation, if he had recommended to Salanitro that Benmar hire Mulligan to take over from Noto, Messina replied that Mulligan was one of several attorneys he had recommended to Salanitro.

Messina was also asked if it might not appear problematic for the deputy village attorney to recommend a lawyer, particularly one with whom he had had an at least occasional working relationship, to a principal in a matter that had come before the village board, was now before the zoning board and is scheduled to be heard in court. He said that he was sure that Salanitro had asked several people, including Noto, to recommend a new attorney. Messina went on to say that he didn't "know why he [Salanitro] ended up with Mr. Mulligan. I guess he felt comfortable with him."

Phone messages left for Mulligan, before and after the July 24 zoning board meeting, have elicited no response.


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