Does PETS ALIVE Restrictive Covenant Have an Impact on the FASNY? Reader says it Should

WPCNR THE LETTER TICKER. JULY 29, 2015:

To: Hon. Mayor Roach and Hon. Common Council Members  
 
Legal or illegal?  FASNY’s plan to build a school on the former Ridgeway Country Club property would breach the restrictive covenant in the deed filed in 1925 (Gedney Farm Co. sold the property to Gedney Farm Golf Club.  RCC bought the golf club in 1952).  In fact, it is possible that the sale to FASNY by RCC was itself a breach.
The restrictive covenant, which runs with the land in perpetuity, allows only a golf course or single family residences on the property, no matter who owns it.  Special Permit or no Special Permit, a school is an illegal use of the property and RCC sold to a school planning to build a regional school campus, not run a golf course or build single family residences.
I am revisiting the issue of restrictive covenants because of an event last week which places the spotlight on this issue as it relates to Pets Alive in Elmsford. The issue was raised by Town of Greenburgh Supervisor Paul Feiner with respect to the decision by Pets Alive to close its animal shelter in Elmsford and move the animals to its main location in Middletown, NY. The predecessor of Pets Alive, Elmsford Animal Shelter/ Central Westchester Humane Society, needed a larger space to house its overcrowded shelter in Greenburgh.
 Efforts began in the 1980′s’ to find a suitable location.  Paul Feiner, who was not yet Supervisor, was heavily involved in this effort. The shelter was eventually built on donated property in Elmsford resulting from a land swap between Greenburgh and Westchester County. The surprise announcement of the plan to close the Pets Alive shelter and sell the property caused immediate outrage by Feiner and animal advocates. The Greenburgh Town Board held an emergency meeting on 7/22/15 to discuss ways to save the animal shelter. According to Feiner, “Inasmuch as the land was donated for the sole purpose of being used as a no kill animal shelter — I do not believe that Pets Alive should be able to keep the land if they are not going to use the land for a shelter.”
Because Greenburgh was so heavily involved in helping the shelter get the land donated to them, prior to the meeting, Feiner asked the Town Attorney to review the deed to determine if the town has any rights.  The original animal shelter did not pay for the property and Pets Alive only paid $10 for it when it took over several years ago.
 A deed restriction was discovered stating that “the grantee, its successors and assigns shall use the said premises solely and exclusively for park, recreational, or general municipal purposes or as an animal shelter in perpetuity.”  As a result, Pets Alive will not be able to sell the property to a commercial developer, according to Feiner.  It is Feiner’s belief that Pets Alive hoped to sell the property for three to four million dollars.
Which brings me back to FASNY.  While the Pets Alive desire to sell and the Ridgeway Country Club sale to FASNY are not the same, (except that lack of money was the underlying issue) what has bearing here is that both properties have a restrictive covenant which runs with the land in perpetuity.  The restrictive covenant is binding on future title holders of the property.
We know that the deed for the golf course property prohibits the use of the property for anything but a golf course (which was its sole use through 2010) or single family residences (but not permitted before 1940), in perpetuity.  From my research, I have learned that an original seller/developer who imposed a restrictive covenant could grant “retrospective consent”  to get around the problem of the restrictive covenant, if requested.
 Otherwise, if the terms are ignored the property owner is in breach.  Can anyone show that RCC or its predecessor made such a request and so changed the terms of the restrictive covenant?  Would a successful golf course make such a request?  I think not. And if RCC thought about it as its financial situation deteriorated, who would it call, The Long Island  Medium in hopes of speaking with the long dead seller?
RCC knew that FASNY didn’t plan to operate a golf course or build single family residences but planned to build a school. It doesn’t matter whether or not RCC didn’t know or didn’t care about the restrictive covenant. It was still legally in force.  But FASNY should have known that a school was prohibited because a deed search would have uncovered the restrictive covenant.  I cannot believe that FASNY’s attorney didn’t research the original deed for encumbrances.
Howard Willets, the owner of Gedney Farm, sold the property which was developed into the golf course,  The golf course was on four non-contiguous parcels, bisected by local streets, and so was integral to the developing community.
Willets, the founder and first president of The Gedney Association, was now actively subdividing his property for development of single family residences, many of which abutted the four golf course parcels.
The restrictive covenant was meant to protect the newly subdivided properties by maintaining their values and the character of the attractive and sought after neighborhood  –  both then and  in the future. Today, at least 115 homes abut this property and many more are on nearby streets.
The surrounding properties in particular would be harmed by a breach.
So I ask again, does this mean that the Ridgeway Country Club sale to FASNY was illegal?  Certainly what FASNY wants to build is illegal under the terms of the 90-year-old deed’s restrictive covenant.   Doesn’t the Pets Alive situation underscore the argument that the restrictive covenant on the former golf course lives and cannot be violated, even if the seller or buyer didn’t know or care?
 And furthermore, how can a new restrictive covenant in perpetuity for the “Conservancy” supersede the existing restrictive covenant in perpetuity for the entire property?  And being the creator of a new restrictive covenant that runs with the land in perpetuity, what is to stop FASNY from ignoring or changing the terms to be more favorable to whatever future plans it has?   That is a loophole you can drive a a truck through.
Respectfully,
Ellen Alzerez
White Plains NY

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