Sunday, July 21, 2013

Broadway-Flushing Homeowners Association victorious against developer


On Wednesday, July 17th, the Broadway-Flushing Homeowners Association won an incredibly important legal victory: the Honorable Jeffrey D. Lebowitz of Supreme Court of New York State ruled in favor of the association against a developer with intentions of breaking the restrictive covenants that cover the neighborhood.

City Council candidate Paul Graziano, an urban planner and historic preservation advocate and consultant – who placed 1,330 buildings in Broadway-Flushing on the National and State Register of Historic Places in 2004 and designed the contextual rezoning for the entire neighborhood in 2009 (including the "anti-McMansion" R1-2A and R2A zones) to stop overdevelopment – had volunteered his time as an expert witness for the case, along with Mel Siegel, a past-President for the association. The lengthy decision extensively refers to Graziano's more than 3 hours of testimony on the witness stand on April 24th - as well as several other days of attending court and helping prepare the case with the Broadway-Flushing Homeowners Association's lawyer, Vincent Nicolosi, - all for no compensation of any kind.

In his decision, Judge Lebowitz specifically mentions that
"The Court found unwilling the defendant's attempts to discredit the Graziano testimony as trying to curry favor with Association members as he was presently running for City Council in a district that included the BFHA. In any event, Mr. Graziano did not testify to opinions, as much as relevant historical data."

The defendant, a developer named Xudong Siao, purchased the property at the southeast corner of 35th Avenue and 163rd Street in 2010 with the intention of tearing down the existing single-family house and subdividing the property. While the zoning in the area, R1-2A, is the strictest in New York City, it would have allowed the 120' x 100' property to be legally subdivided into two single-family houses on 60' x 100' lots. However, the Rickert-Finlay restrictive covenant which covers the area mandates that corner properties have a minimum of 80' x 100', meaning that he would need an extra 20' in order to subdivide the property to comply with the deed restriction.

The defendant's lawyer, Simon Rothkrug, attempted to argue that there were too many violations of the deed restriction over time and that they were no longer valid, nor did the Broadway-Flushing Homeowners Association have the ability to defend them. Graziano proved that, to the contrary, according to his research over 98% of the properties were still in compliance with the deed restrictions, and his argument helped to win the day.

"Along with the recent Appellate Court decision (the Dilluvio case) upholding the Broadway-Flushing Homeowners Association's right to prohibit walls and fences in front yards, Wednesday's decision reinforces the association's ability to stop all of the larger properties with frontage on the avenues from being subdivided, thereby helping to preserve the look and feel of this beautiful neighborhood" Graziano stated.

As described in the decision, "Corner lots are specifically requiring construction on larger parcels, which the Court finds was to maintain the ambiance and establish open and unobstructed views, or as Mr. Graziano testified, to create a ‘rural-like setting.’” The decision goes on to say that "The Court accepts the Plaintiff's (Broadway-Flushing's) position that the restrictions continue to serve a legitimate purpose, especially as it relates to corner lots, to allow for the continued ambiance afforded the community by open and unobstructed views. This purpose remains as compelling today as the day it was created. In fact this open air view is a substantial reason that homeowners are attracted to this area. Therefore, the Plaintiff has met their burden of showing the continued vitality of the Covenant today."

Finally, for the first time in history, Judge Lebowitz took an adversarial position - and legal opinion - against undesirable development that has been plaguing northeast Queens for over a decade: McMansions.

Judge Lebowitz stated that
"The Court takes judicial notice of the rampant development of "McMansions" (though evidence of this problem and the subsequent zoning relief can be found in the trial testimony) in the County of Queens, which were concededly built in conformity with then existing zoning laws, and which prompted a change to the present, more restrictive, R1-2A. This "McMansion" crisis was not experienced in areas covered by restrictive covenants, and underscores the continued vitality of these covenants to maintain the existing landscape of these respective neighborhoods."
"This is a game-changing decision," Graziano stated, "which should help ALL of the deed restricted communities in Queens County and beyond to defend themselves from the crass intentions of speculative developers. Their only intention is to make money for themselves regardless of the price paid by the neighborhood itself, in terms of compromising the integrity of the planned communities of our borough."

Judge Lebowitz's entire decision can be found here:

Broadway Flushing Homeowners Court Victory


Anonymous said...

Congratulations to BFHA for their excellent win!

If it wasn't for associations like theirs, who spend their hard-earned money fighting against rapacious developers, Queens would be even more messed up than it already is.

Thanks for fighting - and winning - for us!

Anonymous said...

One down, 257,890 to go.

Anonymous said...


Joe Moretti said...

Kudos to Broadway-Flushing Homeowners Association and City Council candidate Paul Graziano. If you stick to your guns and persevere, the good guys sometime win. Enough of the stupid bullshit that has been going on in Queens for too damn long.

Anonymous said...

Bravo BFHA. Bravo Paul. Bravo Mel. Thank you: Judge Leibowitz.

It is unfortunate and disappointing that the East Bayside Homeowners' Association is not as proactive against developers as the BFHA.

We the people and our politicians have to keep sending the message out that we are not going to tolerate these rapacious developers and crass individuals.

If we want real change: We must vote for Paul Graziano for Councilman and Senator Tony Avella for Borough President. They will continue to go after the developers/owners; architects, engineers, surveyors, general contractors and contractors who abuse the NYC Building Code; Zoning Regulations and the laws.

We have had our fill of politicians that are more interested in their own personal agenda. In many instances, as we well know, politicians are interested in lining their own pockets.

The citizens of Queens are also tired of spending (and should not have to) their hard-earned money fighting developers (and the individuals that carry-out their dirty deeds for a buck) that destroy their property and neighbor; and deprive them of the enjoyment of their homes.

Jerry Rotondi said...

Let this serve as notice--to any rapacious, speculative, real estate developer--with slick ideas to make a fast buck here.

(And, please pardon my "French") in other words--DON'T DARE TRY TO F--K WITH US--in any way, shape or form!

Most important--thank you, Paul Graziano, for your tireless efforts to preserve many other neighborhoods from ruin.


The other Paul--Vallone--is an opportunistic developers' lobbyist. Vote for him and get screwed!

Anonymous said...

Borough hall needs Avella to clean up that filthy stable.

Otherwise it will continue to rubber stamp the approval of massive overdevelopment throughout Queens.

For the moment, Helen Marshall sits there...non compos menti...totally OUT OF IT!

She nods yes when she's told to do so!

But, if "junior" Vallone becomes our next can kiss Queens goodbye!

Anonymous said...

Unfortunately most homeowners don't care until something happens next door to them. Fortunately, the ones who do care can turn to Paul Graziano and Tony Avella for help. Good for BFHA!! and Paul Graziano!! Vote for Graziano!

Anonymous said...


Congratulations to all fighting the good fight; Paul, Mel, BFHA and Judge Leibowitz!

Anonymous said...

This set back is just that ...a set back.

The rule of law hasnt meant crap in these United States for close to 100 years.

The developers will wait you civic minded folk out (you die) and than express their 'will'.

You see.....

The US Constitution is a living document and that means it changes to suit the powerful over the people.

This victory is a silly battle in a lost war.

Anonymous said...

This victory is a silly battle in a lost war.
Seriously? Looks like the Vallone Troll Patrol is at work on a Sunday.

Anonymous said...

To really take this in, you had to be standing next to this.

I suspect the aroma was such that one didn't have to stand too close to take it in...

You should see the area around the Jamaica Center subway station.

Anonymous said...

The US Constitution is a living document and that means it changes to suit the powerful over the people.

This victory is a silly battle in a lost war.

Actually, you couldn't be farther from the truth. Land use law is based on English Common Law that was brought to the United States by England and established after the Norman invasion of England of 1066 by William the Conqueror.

One thousand years of English Common Law is constantly being built upon, but the foundation has never been challenged, particularly when dealing with private agreements on land, which can only be litigated in the courts.

This decision is not only rock solid, but it's built on significant precedent (interestingly enough from other Rickert-Finlay covenant neighborhoods like Westmoreland and Douglas Manor).

After this decision, if anyone else tries to subdivide a property in a Rickert-Finlay neighborhood - or anywhere else where deed restrictions are vaild - they will be turned down immediately, with the judge in the case citing this decision.

Paul Graziano
Candidate for City Council, 19th District

Anonymous said...


I made my comment 'tongue in cheek'.

I do think you have accomplished something great for Broadway-Flushing....for now.

My point was that the rule of law in this Republic is under considerable assault and the trend doesn't look good for the American people.

"The illegal we do immediately; the unconstitutional takes a
little longer." - Henry Kissinger

Anonymous said...

BFHA was founded in 1964 and
has been on CONSTANT PATROL to protect their neighborhood.

BRAVO! Well done, everybody!
I see we have at least one honest judge left that hasn't been bought by developers. Kudos to you, Judge Leibowitz!

BFHA's lawyer beat their lawyer, and that's where it's at! Talk is cheap but lawsuits kick ass!

I believe that BFHA has not lost a court case yet.

Now let's tar and feather some traitors and run them out of office!

"Follow the buck", Chuck Apelian, needs to be bounced from CB7 like a common drunk.

He's a shady double dealing SOB that should be taken to the federal woodshed. It's a conflict of interest to be running Paul Vallone's campaign...up front or behind the scenes. His day will come!

Where's the FBI to investigate the rampant corruption at one of the most crooked community boards in NYC?

Subpoena Marilyn Bitterman! She knows plenty!

Anonymous said...

Wait until that goombah Dilluvio has to remove his illegally placed in-ground swimming pool and wall.
That'll teach that chooch to break the law!

It'll cost thousands! House for sale?

Steve Behar said...

Great work all around!

We need elected officials and Community Boards that will fight these developers.

Jerry Rotondi said...

Right on the money, Steve Behar!

CB7 usually rubber stamps developers' plans faster than a super hero can fly!

Is their land (ab)use chair representing your neighborhood's best interests or someone else's?

"As of right" (the developer has the right to build) is the continuing excuse for much of CB7's treachery.

I say their attitude is generally, AS OF WRONG!

Abolish community boards.
Most serve the real estate industry--not constituents.

Who needs their advisory non-binding votes?
When I have a problem I can call 311 when to get help.

I don't need the community BORED to make that same call.

Now I'm bound to catch hell from CB7 for telling it like it is.

Anyway, WTF do I care? I never intend to run for any political office. Will they try to banish me from Queens?

Anonymous said...

Congratulations to us!! Thank you Paul!

Also - Paul did you grow up in the nab? My dentist, Dr. John Graziano's office was directly across the street from Bowne Park - I absolutely adored him.

Anonymous said...

Congratulations to us!! Thank you Paul!

Also - Paul did you grow up in the nab? My dentist, Dr. John Graziano's office was directly across the street from Bowne Park - I absolutely adored him.

I grew up about ten blocks west of Bowne Park on 32nd Avenue, right next door to my current house (my parents still live next door).

I knew who Dr. Graziano was but he wasn't related to my family...if you're interested, please check out the link below to the biography section of my website - there's also a short video about my house which was covered in the New York Times a few years ago posted at the bottom.

Paul Graziano
Candidate for City Council, 19th District

Anonymous said...

Way to go Paul! Thank you Mel! Great job!

One less Chinese POS in the neighborhood! Too bad we can't pull them all down and build new Tudors!

Anonymous said...

Feudal New York State legal system predates the Constitution and nneeds to be struck down. The only reason it hasn't happened yet is the appeals are too expensive. But once we do, all the feudal Johnnies will be out of work!