Avital and Greg Soldatenko and their lawyer were back at Village Hall on Tuesday night September 17 for a renewed attempt to obtain an easement that would allow them to build a house on a vacant lot that lies between Farragut Road and Lenox Place in Heathcote. The property abuts a de-mapped street that once ran between Farragut Road and Lenox Place. Without frontage on a road the lot cannot be developed.
When the Soldatenko's purchased the property in 2001 they were aware that it could not be developed without an appeal to the Village, which they first made in 2012. In October 2012 the Zoning Board of Appeals upheld the 1966 that no variance could be granted to allow for development on the lots. The Soldatenkos responded to the decision by filing an Article 78 proceeding in the Supreme Court of NY. They continued to attempt to have the street put back on the map or to get an easement to cross a triangle of Village-owned land to build a driveway to the home from Farragut Road and went before the Zoning Board of Appeals in January, February and March 2013. On May 29, 2013 the Land Use Committee again heard the request to reverse the de-mapping of the paper street and voted unanimously to deny it for the following reasons:
- When the Soldatenko's purchased the property in March 2001 they knew the property did not have road frontage
- The paper street was de-mapped 47 years ago and since that time others have purchased homes with the knowledge that the street was de-mapped and the land would not be developed.
- There was no compelling reason aside from personal gain to the Soldatenkos to remap the street or grant the easement.
The Soldatenkos have now filed four lawsuits and the Land Use Committee met again to hear their appeal for an easement on Tuesday, which began with a call to go into executive session. About a half hour later they reappeared to hear from the Soldatenko's attorney and residents from Lenox Place, and Farragut and Tyler Roads who had come to state their views.
Attorney Victoria Polidoro requested a 101 square foot easement across village-owned land for a driveway to the building lot, which she said was a residential building lot created in the 1920's. She pointed out that the area is already paved and has curbing and storm drains and said that if the easement was granted the public could still use the area. She contended that a study showed this posed no traffic or fire issues.
She also asked that the board refrain from being prejudiced against her appeal because of the four lawsuits. She said, "We just want to put in a driveway to what already is a road. Unless you want to close off the road to all of Scarsdale, you cannot deny the clients access."
The Board then asked for comments from the audience. A Farragut Road man said, "The owners bought the houses knowing that the lots cannot be built on. The 1966 agreement was accepted by all owners. Except for personal gain, they (Soldatenkos) have provided no reason to make a variance."
A woman who does not live in the immediate area said, "I am here because I have been following the situation and have seen a 180 degree change in what the Zoning Board of Appeals (ZBA) decided. First they denied the Soldatenko's request for a variance from the street frontage requirement and then, with no change in facts, the ZBA granted the request for the same variance. The only change I see is the filing of three lawsuits against the Village. I am concerned about the erosion of the Village's "trust capital". Also, when the Village was reviewing 2-4 Weaver Street the Village gave great scrutiny to a slice of property it owned. The Village should be just as vigilant about this parcel. Also, the Board has indicated an interest in preserving open space. The CAC Open Space Report is a good resource and promotes preservation of open space that provides walking paths between neighborhoods and cultural institutions. This exists here in the de-mapped Village property between Farragut and Lenox. Please use your trust capital wisely."
Another resident added, "The area was paved so that snow removal and emergency vehicles could turn around. This was a safety thing. The client is getting access to this area to build a driveway because of the turnaround that was paved for safety. It was never mapped for a reason. "
Jeannie Mackler of Lenox Place spoke at length, saying, "We have lived here since 1965. Mrs. Tracy and Mrs. Murray also here have lived on Lenox Place since the late 1950's.... Many misstatements have been made to the ZBA over the months that I would like to clarify. When Mr. and Mrs. Scobey at 9 Lenox place approached us to de-map the stub of land between Farragut Road and Lenox Place in its entirety in 1965 they agreed that they would give up the development rights of lot 217. They approached us and there was an agreement between the Village of Scarsdale, the Scobeys and the neighbors. As a result they got a tax abatement. The Scobeys received a 50% reduction of the assessment of the property for tax purposes. On the Lenox Place end the Village put up a wooden barrier to show that it was not a through street. Later the Village added a "Dead End" sign to the Lenox Place street sign.
For a couple of years Friends of the Scarsdale Parks included the lot on a map of pocket parks ... We regret that for the purpose of convenience the Public Works department paved the end of Farragut. We never knew this would become contentious.... We have rules of law. We are proud of abiding by the codes and regulations. Everyday people walk and children are wheeled in carriages and children going to Heathcote school through here. There are many children going to the Westchester Reform Temple nursery school. Since when does the Village give away land that is publicly owned for the benefit of the owner who bought the property knowing the restrictions? Granting an easement would be tantamount to allowng the Soldatenko's a "flag lot" which has been made illegal by Scarsdale code since 1988. Today we presented the Board with a petition signed by 50 residents asking the Board not to grant the request for an easement on this property."
Stuart Schwam of 19 Lenox Place said, "There was no change (to explain the ZBA's change of decision). The Board was not asked if we would defer. They don't take no for an answer. One suit after another. We had that nailed down and then the change came and they let that go. Perhaps the ZBA should be reversed."
Polidoro then responded saying, "Mrs. Mackler proved my point that this is used as a public right of way. They can still do that. We won't impact the trail in any way . This is a vacant piece of privately owned land. Our client pays taxes. This is not a public park. The fifth amendment prevents the Village from taking it without paying for it. This agreement has taken on mythical proportions since 1966. The document speaks for itself. It restricts development as to this portion of the lot. It was recorded. Lets not take into consideration the musings of the neighborhood. They can still have a block party-only one more party to invite. My clients purchased the lot thinking that they can develop the lot one day."
Bernard Mackler said, "I am the only person here who signed the 1966 covenant. Mr. Soldatenko said the covenant would not be an issue. The Scobeys were compensated. I understood that a second house could not be built."
Stacey Rifkin of Tyler Road said, "Our kids play on the de-mapped area that was paved (for the convenience of the public works trucks.) I have an 8 and a 9 year old that play there with other kids all of the time. There can be 10 children playing together there. They run to the Temple and to Heathcote School."
Carole Koshakow from 26 Farragut Road said, "We moved in in 1998 and they said it was a dead end and would always be one. It was a forest. You couldn't see through to the other street ..... And what happened at 1 Palmer makes us think that the town does not give a hoot about aesthetics, space, or propriety. There is an atmosphere of fear that development takes priority over aesthetics. It tears at my soul. "
Following public comments Committee Chairman Jon Mark made a motion to go back into executive session and the trustees emerged 15 minutes later. He asked for a vote and Trustees Eisenman and Stern voted "no" followed by a motion to adjourn. The Trustees left without granting or denying the request for an easement, leaving everyone in the room puzzled by the outcome.
We called Scarsdale Village Hall the following morning to understand the proceedings and were told that the committee decided not to make a recommendation to the full Scarsdale Board of Trustees, tabling the item instead. What's the result? Since no easement was granted, access is effectively denied and no house can be built for now.