New Development Should Be Based on Current Zoning and Environmental Regulations

In the late 1970s, Reynold Gheduzzi, owner of Mar-Vera Corporation, bought the 35-acre Halsey estate and received site plan approval from the Village of Irvington for 27 houses and 14 townhouses to be built on the property.

Since that time, there have been many changes in the zoning requirements relating to size of lots and environmental concerns. The 4.4 acres where Mar-Vera proposes its current development lies between Castle Road and Halsey Pond and is now part of a "single-family-house on one-acre lot" zoning district. 

Now, 30 years after the site plan approval, Mr. Gheduzzi is asking that Mar-Vera be allowed to build the 14 condominiums. He appeared before the Planning Board in May, 2008 and the matter was referred to the Village Attorney. It has not been on the public agenda of any Village Board since then.

In early December, a memo/ petition was sent to the Village Board of Trustees and to the Planning Board stating our legal position that any future development of the site must be in conformance with current zoning requirements. The memo/petition was signed by 48 residents of Irvington whose houses are located on Park Road, Palliser Road, Castle Road and Leafwood Circle. We have received no response from the Village to date.

New York law holds that even when a developer has acquired vested rights to a real estate development, he may not be permitted to retain those rights indefinitely into the future:  "[The developer] may be divested of those rights…where there is abandonment, recoupment or an overriding benefit to the public to be derived from the enforcement of the amended zoning ordinance."  Ellington Construction Corp. v. ZVA of the Village of Hempstead, 77 NY.2d 114, 121 (1990).

We believe that all three —abandonment, recoupment and overriding benefit to the public — are applicable, and that Mar-Vera should not be able to rely on a 30-year old development approval.

The entire area surrounding the site is populated with high-value, single-family residences. Permitting high-density townhouses on the site would greatly strain a 

narrow road system that barely currently meets the needs of existing homeowners. (Village school buses cannot negotiate the turn onto Castle Road from Palliser Road to pick up school students.)  It would increase traffic, noise, and pollution in an area that includes Halsey Pond, and it would reduce the property values of the residents of the existing homes in the area. Present zoning and environmental regulations must be enforced for the overriding benefit to the public.

Recoupment is the recovery by the owner of his financial expenditures on the property in question. It is our understanding that Mar-Vera acquired the entire 35-acre property for less than $1 million. An accounting of the costs incurred by Mar-Vera and the profits obtained on the 27 residences in the plan over the last 30 years must show that Mar-Vera has more than recouped its costs.

Abandonment means that if a developer does not commence building within a reasonable length of time, he must obtain new approvals based on current laws. Mar-Vera has failed to build for 30 years. New York courts have held that the passage of far less time (20 years) to commence a development is evidence of abandonment.

In light of the above, it is our position that Mar-Vera should not be permitted to construct the proposed townhouse development and that future development of the site must be in conformance with the current zoning requirements of the Village of Irvington.

Robert J. Grados

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