Chevere v. the City of N.Y.

• Decision Date: 03 December 2010
• Citation: 2010 N.Y. Slip Op. 20488,920 N.Y.S.2d 572,31 Misc.3d 337
• Parties: Michael CHEVERE and Carmen Chevere, Plaintiffsv.The CITY OF NEW YORK, Defendant.
• Court: New York Supreme Court

31 Misc.3d 337
920 N.Y.S.2d 572
2010 N.Y. Slip Op. 20488

Michael CHEVERE and Carmen Chevere, Plaintiffs
v.
The CITY OF NEW YORK, Defendant.

Supreme Court, Richmond County, New York.

Dec. 3, 2010.

[920 N.Y.S.2d 574]

Joseph Manno, for plaintiffs.Michael A. Cardozo, Corporation Counsel, for defendant.JOSEPH J. MALTESE, J.

[31 Misc.3d 338] After a bench trial, this court holds that when the City of [31 Misc.3d 339] New York granted a Consent Judgment in an identical case in this court declaring that part of a 51 year old map of a proposed, but unopened, unbuilt street was “void and without legal effect,” it did more than settle that prior case, it manifested that the City had no plans to open and build that portion of the street. Consequently, the City should be consistent in determining that the neighboring parcel, which also sits in the bed of the same street, is likewise “void and of no legal effect.”

Facts

In 1995, the plaintiffs, Michael Chevere and Carmen Chevere, purchased a house at 393 Ridgewood Avenue, Staten Island, New York 10312. Their real property consists of two separate tax lots: Lot 29 and Lot 30 in Section 20, Block 5491. The house sits entirely upon Lot 29. Lot 30 is an adjacent side yard that is 40 feet wide by 100 feet deep, which sits entirely in the bed of an unopened, unbuilt mapped street. The metes and bounds description in the deed inaccurately labels both lots as Lot 29. However, the plaintiffs pay separate real property taxes on both Lots 29 and 30, which the New York City tax map shows to be separate and distinct lots.

Fifty one years ago, on August 20, 1959, the Board of Estimate of the City of New York (the City) approved official map number V575–2942. This map designated an eighty foot wide street known as Barlow Avenue. Barlow Avenue has an incomplete, unpaved gap between Ridgewood Avenue and Cortelyou Avenue, running along a west-southwest to east-northeast axis that was divided into four distinct tax lots. Each of the four lots that constitute the unopened, unbuilt portion of Barlow Avenue are 40 feet wide. Immediately adjacent to Lot 30 on Ridgewood Avenue is Block 5194, Lot 1. The center-line of the phantom part of Barlow Avenue would include the boundary between Lot 1 to the

[920 N.Y.S.2d 575]

north and Lot 30 to the south, both fronting on Ridgewood Avenue.

At trial, the plaintiffs presented two expert witnesses, an experienced licensed real estate appraiser and broker and an experienced title insurance attorney. Both expert witnesses substantiate that Lot 30 is not currently marketable because the New York City Building Department (DoB) will not issue a permit to build on a lot that lies in the bed of a mapped street. If the street was demapped, the real estate appraiser testified that the property would have a fair market value of $200,000. By [31 Misc.3d 340] maintaining the mapped street, Lot 30 is of little value to anyone other than the current owner who uses it as a side yard.

Accordingly, the plaintiff contends that by maintaining Lot 30 as a mapped street the City of New York is violating their rights of alienation—to sell their property and to alleviate their real estate tax burden on this lot.

The plaintiffs' neighbor, Janice Maugeri at 407 Ridgewood Avenue, inherited a house that sits on Lot 2 of Block 5494. Ms. Maugeri's side yard, which is Lot 1, laid in the bed of the unopened, unbuilt, but nonetheless mapped Barlow Avenue. Ms. Maugeri desired to sell Lot 1 that was part of her side yard and discovered that it was difficult to sell because of the mapping of Barlow Avenue for possible road construction. Ms. Maugeri contested the 1959 map in the New York Supreme Court, Richmond County,¹ claiming that pursuing a variance to build on the mapped street through the New York City Board of Standards and Appeals (BSA) would be excessively expensive and unnecessary because she did not want to build on Lot 1. On May 30, 2000, the City settled Ms. Maugeri's suit by declaring in a Consent Judgment that Map V757–2942 was void and without legal effect as it applied to Block 5494, Lot 1, which constituted one quarter of the mapped, but unbuilt portion of Barlow Avenue.

Now, the plaintiffs request the same relief for the neighboring Lot 30 that was granted for Lot 1. They ask that the mapping of Barlow Avenue across the entirety of Lot 30 be declared void. The plaintiffs claim they are unable to sell Lot 30 because of the cloud on the title that the street map casts upon their land. The plaintiffs assert that this impediment to sale is a taking by the City. As an alternative, the plaintiffs simply want their Lot 30 to be de-mapped. The plaintiffs have no intent or plan to build upon, improve, or otherwise develop the lot; they only wish to sell it. Accordingly, the plaintiffs have not sought a building permit from the New York City Department of Buildings (DoB) to build upon Lot 30. The plaintiffs state that proceeding through the BSA would be unnecessary and overly expensive.

Notwithstanding the fact that this is the mirror image of the previous action that the City settled by consent judgment, the City opposes this identical application. The defendant City claims that the plaintiffs have not exhausted their administrative[31 Misc.3d 341] remedies, and that the City is not obligated to offer the same result to different parties in this separate action. This application for the contiguous, adjacent parcel, concerns the de-mapping of this 51 year old unopened, unbuilt roadway or declaring that portion of the map to be void and without legal effect is identical to what the City agreed to in the Maugeri case.

Discussion

The New York City Board of Estimate was the governmental body that was responsible

[920 N.Y.S.2d 576]

for budget and land-use decisions in the City of New York and was the entity that approved the mapping of Barlow Avenue. However, in 1989, the United States Supreme Court in Board of Estimate of City of New York v. Morris² declared the New York City Board of Estimate unconstitutional on the grounds that Brooklyn, the city's most populous borough had no greater effective representation on the board than Staten Island, the city's least populous borough. Pursuant to the 1964 “one man, one vote” decision of Reynolds v. Sims,³ the New York City Board of Estimate violated the Equal Protection Clause of the Fourteen Amendment of the U.S. Constitution. Under the 1990 New York City Charter, most of the responsibilities of the Board of Estimate were delegated to the New York City Council and other city agencies.

Well before the 1990 New York City Charter revisions, the New York City Board of Standards and Appeals (BSA) has had authority to review “applications by any person or agency for changes, approvals, contracts, consents, permits or authorization thereof, respecting the use, development or improvement of real property.” ⁴ The word “use” is defined as “[t]he purpose for which a building, structure or space is occupied or utilized, unless otherwise indicated by the test. Use (used) shall be construed as if followed by the words or is intended, arranged, or designed to be used.” ⁵ Development and improvement are not statutorily defined in this section, so plain meaning should be applied. Develop may be defined as “to convert (land) to a new purpose so as to use its resources, to use (an area) for the building[31 Misc.3d 342] of houses or stores or factories, etc.” ⁶ An improvement is “to make (land) more valuable, as by cultivating or building on it.” ⁷

The City Planning Commission may only authorize the city map to be changed for the use, development or improvement of real property.⁸ After review by the City Planning Commission, a request to change the city map goes to the New York City Council for review with the Planning Commission's modifications, if any.⁹ With the approval of the City Council, the changed map would be forwarded to the President of the Borough of Staten Island, where it would be maintained by the Topographical Bureau.¹⁰ However, this mechanism is inapplicable since the plaintiff has not stated an intent to use, develop or improve Lot 30.

The New York City Administrative Code contains a proceeding to close a street that has been opened.¹¹ However, here, there is no opened street nor are there plans to open Barlow Avenue. Therefore, this mechanism is also inapplicable. The New York City Charter provides for a mechanism to abandon a street if the action were a part of waterfront

[920 N.Y.S.2d 577]

plans,¹² but Lot 30 is not part of a waterfront plan and is inapplicable in this case. The City Charter states that there shall be no other means of changing a city map other than in accordance with the City Charter.¹³ However, the City Charter does not explicitly address the desires of the plaintiff, and leaves them without a recourse.

The Corporation Counsel representing the City asserts that if the plaintiffs wish to build within a mapped portion of Barlow Avenue, that the proper procedure would be to apply to the BSA for a variance. The City states that in order for this action to be ripe for judicial review, there must have been a final administrative finding that has exhausted the plaintiffs' administrative recourse.[31 Misc.3d 343] ¹⁴ “[P]rocedural due process in the context of an agency determination requires that the agency provide an opportunity to be heard in a meaningful way, at a meaningful time.” ¹⁵

In this case, there is no process available to provide a hearing for de-mapping. The New York General City Law § 35 provides a mechanism for obtaining a permit to build in the bed of a mapped street if there has been no construction of a roadway within ten years of mapping,¹⁶ or if the plaintiffs lot were on a waterfront.¹⁷ But these conditions are not present in this action. The plaintiffs only wish to sell their land, and to that purpose the plaintiffs want the mapped street on Lot 30 to be de-mapped or declared void and of no legal...