Posted by: Patricia Salkin | August 22, 2016

NY Appellate Court Finds Where Variance was Granted Subject to Easement Petitioners Were Able to Show a Property Interest by Prescription and Therefore No Easement was Necessary

Petitioners/plaintiffs, Gregory Soldatenko, et al, acquired property that included what was once Lot 117 and was now Lots 217 and 217A on the Village of Scarsdale, New York tax map. The plaintiffs’ lots did not have street frontage. Lot 215A, owned by the Village, sits between the plaintiffs’ lots and the end of Farragut Road.  Plaintiffs applied to the Zoning Board of Appeals for a variance from the frontage requirements so that they could build a single-family residence on Lots 217 and 217A. The Board granted the variance in a resolution with a condition of obtaining an access easement to cross Lot 215A. Plaintiffs maintained that despite its depiction on the official Village map, Farragut Road actually was paved and extended further than was shown on the map providing more than 20 feet of actual street access to Lot 217. The Board, however, took the position that the subject area was not part of Farragut Road, but instead was part of Tax Lot 215A, and thus an easement would be required before the plaintiffs could connect a driveway to Farragut Road. The plaintiffs commenced this hybrid proceeding pursuant to CPLR article 78 to review the determination. The Supreme Court found that the plaintiffs had established that the strip of land was a public street by prescription, and that the public street included the public right-of-way that ran with the remainder of Farragut Road. The respondents/defendants appealed.

 

The appellate court affirmed stating that the supreme court did not err in holding that the plaintiffs had established that the subject strip of land was a public street pursuant to Village Law § 6–626. That statute provides, “all lands within the village which have been used by the public as a street for ten years or more continuously, shall be a street with the same force and effect as if it had been duly laid out and recorded as such” “Naked use by the public is not enough, and plaintiffs must further demonstrate that the village has continuously maintained and repaired the alleged street and, thus, assumed control thereof during the period of time in question.” Here, the land at issue was a portion of pavement indistinguishable to the eye from the pavement that constitutes Farragut Road. It was only by referencing survey maps that it was apparent that the pavement was a portion of Village-owned Lot 215A. It was paved by the Village with Farragut Road more than 10 years prior, and the public used it in a manner indistinguishable from the surrounding roadway.

 

The defendants argued that the plaintiffs were required to produce evidence that the Village had made recent repairs to the section of the pavement at issue. The court disagreed that such proof was required stating that while the pavement was cracked in places and the curbing that is there had not been refreshed in some time, the surrounding roadway was in the same condition. The record was clear that the Village maintained the area in the same manner as the remainder of Farragut Road. Accordingly, the area was a public street.

 

Furthermore, the appellate court held that the supreme court did not err in directing that the width of the prescriptive portion of Farragut Road included the public right-of-way that runs with the remainder of Farragut Road. The Village Law directs that the prescriptive lands “shall be a street with the same force and effect as if it had been duly laid out and recorded as such.” A prescriptive street “carries with it the usual width of the street in the locality or such width as is reasonably necessary for the safety and convenience of the traveling public and for ordinary repairs and improvements.”

 

Soldatenko v Vil. of Scarsdale Zoning Bd. of Appeals, 2016 WL 1576931(NYAD 2d Dept. 4/20/2016)


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