By Joe Anuta
Homeowners in Flushing last week successfully sued a developer who planned to build new homes that were perfectly permissible under city laws but ran afoul of a century-old private building code that also governs the neighborhood.
The Broadway-Flushing Homeowners’ Association won a permanent injunction in Queens Supreme Court July 17 to stop property owner Xu Dong Xiao from dividing his expansive lot on the corner of 163rd Street and 35th Avenue into two smaller parcels and building homes on each of them — about a month after scoring a similar precedent-setting victory in appellate court.
“The association is ecstatic. It proves everything we have said for decades,” said President Janet McCreesh. “This decision, along with the recent appeals court ruling, will make people think twice before challenging the deed restriction.”
The deed restriction McCreesh referred to is called the Rickert-Finlay Covenant, which was written by the original developers of the neighborhood in 1909 and requires larger lawns and smaller homes for 540 properties in the association’sw boundaries, which run roughly from 155th Street in the west to 170th Street in the east and 29th Avenue in the north down to Northern Boulevard and Crocheron Avenue in the south.
The covenant is written into the deeds of all the homes it covers, but it is not part of any city law. Instead, the association must enforce the code by suing any violators in civil court.
In this case, Xiao’s 120-by-100-foot lot will now have to remain as a single parcel, which is required by the convenant to maintain a more rural and open character in the neighborhood, according to the justice who heard the case.
The July decision is the second victory for the neighborhood in a month. On June 14, an appellate court ruled the Broad-Flushing Homeowners could legally prevent a homeowner from building a wall contrary to the covenant’s open space requirement.
The association was formed in 1964 and has long collected money to maintain a legal fund to finance courtroom battles.
“It costs a lot of money to go to court,” McCreesh said. “We always need to be prepared for the next incident.”
Justice Jeffrey Lebowitz seemed emphatic in his ruling, even taking a jab at less-regulated development in the rest of the borough. In his 12-page decision, he lamented the rise of the McMansion — often gaudy or ostentatious homes constructed with the cheapest materials and built to the largest specification allowed by law.
“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,” he wrote.
Reach reporter Joe Anuta by e-mail at januta@cnglocal.com or by phone at 718-260-4566.
