BY JOE MARVILLI
A homeowner has gone to court against a Homeowners’ Association over a stop work order on two houses he planned to build on a corner, a proposal that he was told violated covenant laws.
Charles Chang already had the structure that stood at 35-05 163rd St. in Murray Hill demolished so he could begin construction on his two houses when he was hit with a stop-work order from the Broadway-Flushing Homeowners’ Association about two years ago. They stated in a letter that the construction violated Article 13 of the Rickert-Finlay Covenant of 1906.
According to a letter the association sent to Chang in 2010, this statute means that he would be unable to build two houses unless he had 140-feet by 100-feet of space available, rather than the 120-feet by 100-feet he has. The letter also stated that the covenant laws take precedent over city zoning laws. The City building code says the lot size has to be 60 by 100 per house, which would give him enough room for two structures.
None of the City agencies mentioned the covenant laws to Chang when he applied to build the houses.
“We have approval from everybody. You name it, we had it,” Chang said. “The Association was very uncooperative.”
As a result, Chang has gone to the courts to challenge the sanctity of the covenant laws so he can build again, stating that there are already violations within the zone where those old statutes apply. The area where the covenant laws exist falls within most of the blocks between 156th Street and 168th Street and between Northern Boulevard and 33rd Avenue.
Among the violations are flat roofs when the covenant says all roofs must be pitched and two-family homes where such structures are not allowed.
“To our particular property, we’re trying to say the covenants don’t apply due to the development of the surrounding area, where most of the homes have violated the covenant,” Simon Rothkrug, Chang’s lawyer, said.
Vincent Nicolosi, the attorney for the Homeowners’ Association, disagreed with Rothkrug’s statement.
“There’s about 1.6 percent on technical violations. Some of that 1.6 percent violated it before the Homeowners’ Association was even created,” Nicolosi said. “Under no case law that I know of will a covenant be extinguished because of violations of three or four percent.”
The date of the trial is set for April 22. Chang hopes for a quick resolution to the issue, as the multiple financial costs on top of the more than $1 million he spent on the property is hurting him economically.
“It’s killing us. We have to pay taxes on the lot. We have to pay interest on the mortgage. We have to maintain two residencies,” he said. “The opposing party’s been delaying and delaying.”
Chang mentioned that he tried to work with the Homeowners’ Association to appease them, to no avail.
“During litigation, we even went as far to say ‘let us start construction on one house and then once the lawsuit’s settled, we can either appeal the construction of the second house or start the construction of the second house,’” he said. “The Association filed an injunction for us to build the first house, because we have the lots divided in the DOB, but not with the tax department.”
Nicolosi responded that Chang divided the lot into two 60 by 100 lots, which is not allowed under the covenant. He mentioned as well that he plans to write to the Dept. of Buildings and make them aware of the covenant.
“The Building Dept. inadvertently approved plans that directly violate the covenant,” he said. “The Building Dept. doesn’t know about covenants unless it’s brought to their attention.”
“It’s a civil matter whether the courts will uphold the zoning resolution rather than the restrictive covenant,” architect Gerald Caliendo said. “If you’re going to uphold a covenant, you uphold it completely. If the covenant is outdated, why would you uphold it? Zoning laws of the city of New York were put in place to protect people. That’s what they’re there for. That’s what we follow.”
Reach Reporter Joe Marvilli at (718) 357-7400, Ext. 125, or at email@example.com.